Imatges de pàgina

out of lands for maintaining a priest to say mass, and the remainder for repairing a church (a).

Lands given by a tenant in tail to superstitious uses, and enjoyed accordingly, five years before the statute 1 Edward VI., belonged to the crown, for the issue was excluded by the saving in the statute (b). The king did not under this statute acquire the freehold of copyhold lands given to superstitious uses, but it remained in the lord of the manor, the uses being void, and the copyhold tenure destroyed (c).

Where there is an absolute devise, an averment, that it was for a superstitious use, is excluded by the statute of frauds (d), and the nature of the thing ; but an information may be maintained at the suit of the crown for a discovery of the superstitious use, as the statute of frauds did not affect the king, who is bound by law to see that nothing be done to the propagation of a false religion (e).

The superstitious intent of the donor was in some early cases presumed from his own religious opinions : thus where a recusant conveyed land by a fine in trust, that the profits should be employed upon an hospital of religious, which should be renewed when the times would serve, and in the mean time, the profits were to be employed in the relief of poor people at the discretion of the trustee and his heirs, according to the intent of the donor : because it was apparent that the donor was a recusant, and the employment was to be according to his intent, which could only be for the relief of poor recusants, which was contrary to law; it was decided not to be a charitable use (9). So where lands were conveyed to trustees upon bope that they would employ the profits thereof to the use of the poor scholars in Oxford or Cambridge, or elsewhere, being such as studied

(a) Duke, 108, pl. 14; Cro. Eliz. s. 39, 40. 180.

(d) 29 Charles II. c. 3. (6) Lord Sheffield & Ratclif"s (e) Rex v. Lady Portington, 1 case, Godb. 309.

Salk. 162; 3 Salk, 334. (c) Bagnall & Pot's case, Godb. (9) Lady Egerton's case, Duke, 233. See Edward VI. c. 14, 133 (127).

divinity and took holy orders, according to the discretion of the trustees, and agreeable to the intent of the donor; because he was a recusant, it was inferred, that his intent was in favour of poor popish priests, the words elsewhere meaning in some foreign university, and holy orders such as were popish, and therefore the land was decreed to the heir, because the use was not charitable but superstitious (h).

Although the statute 1 Edward VI. c. 14, was not prospective so as to vest in the crown property afterwards given to superstitious uses, but related only to such as were then existing; and although there is no statute making superstitious uses void generally, except such as are within the statute 23 Henry VIII. c. 10, yet it has been determined, where property is devoted to superstitious uses which are in their nature charitable, that the crown has the power of applying it to some other charitable purpose. When a devise is to a superstitious use, and made void by statute, or to a charity void by the statute 9 Geo. II. c. 36, the land or fund will belong to the heir at law, or next of kin; but where it is in itself a charity, but the mode in which it is to be applied cannot by the law of England take effect, as for promoting a religion contrary to that established by law; then the crown by sign manual, directed to the Attorney General, may give orders to what charitable purpose it shall be applied (i). Thus in Cary v. Abbot (j), the testator gave the residue of his personal estate to his executors, and directed them to apply the interest" for the purpose of educating and bringing up poor children in the Roman Catholic faith, such as orphans, or those whose parents and friends were not able or willing so to educate those children: to be chosen by my trustees hereinafter named, or such trustees as they shall afterwards appoint or cause to be appointed; nevertheless, I at all times allow a part of this residue, to pay such sum or sums as may be requisite for the

(1) Duke, 134, 135 (128).

cin v. Lawson, 4 Ves. 433, 2nd ed. De Costa v. De Paz, Ambl. 228. See 7 Ves. 77 ; 1 Mer. 100. S.C. 1 Dick. 258; Attorney General (j) 7 Ves. 490. v. Berryman, Dick. 168 ; De Gar

legal security or execution of this or any other part of my will.” On a bill by the testator's next of kin, claiming the residue as in case of an intestacy, the use being for orphan children, and clearly charitable in its nature, although vitiated by being for educating them in the Roman Catholic religion; the court declared the bequest of the residue void, but directed it to be applied to such use as the king should appoint by sign manual. The same direction was given where money was directed to be applied in teaching the Jewish law (k). So one moiety of a legacy given to a Jewish charity, which was not permitted to take effect, was paid pursuant to the king's sign manual to the Magdalen Hospital, and the other moiety to the London Infirmary ().

3. Protestant Dissenters.] The Court of Chancery will not take notice of religious opinions with a view to decide whether they are right or wrong, but it will notice them as facts pointing out the ownership of property. That court will support establishments of Protestant Dissenters according to their institution, if the doctrine preached in them be tolerated by law (m). It is familiar to every one acquainted with our history, that so early as the reign of Richard II., and in a few instances before, attacks had been made on the papal power in this country, which ended in its total abolition in the reign of Henry VIII. The short life of his successor was almost wholly occupied with his favourite scheme of reformation. One of his statutes against the superstitious errors of the Roman Catholic religion has been already considered, and laws were passed to fix the doctrines and settle the polity of the new church in a body of articles. The forms of divine worship and administration of the sacraments were then first set forth in the book of Common Prayer, and established by the Act of Uniformity (n), and every other mode of worship was prohibited under severe penalties. Other ecclesiastical regulations of minor importance followed, and some alterations and additions were made to the Prayer Book, particularly in the forms of consecration (o). In the reign of Queen Mary, the papal authority and faith were restored to their former state, and such divine service and administration of sacraments as were commonly used in the last year of Henry VIII. revived (p). On the accession of Elizabeth, the national religion again underwent a change; the statutes of Mary were repealed, and those of Edward revived (9); and another Act of Uniformity was passed (r). From the articles framed and published by him, were selected and compiled the thirty-nine which comprise the doctrine and polity of the present church. The book of Common Prayer received additional alterations (s). The usurped power of the pope in this kingdom was destroyed, and all his connections with it cut off, and the crown again restored to its supremacy over spiritual men and causes, and the patronage of bishopricks indisputably vested in the crown (1). By a convocation of bishops and divines held in pursuance of the king's commission in the reign of Charles II., the book of Common Prayer was reviewed, and some alterations and additions were made to it, and uniformity to it was enforced by another statute (u); since that time, no alterations have been made in the constitution of the established church.

(k) De Costa v. De Paz, Ambl. 7 Ves. 61; Ambl. 228 n. by Blunt. 228; S. C. 2 Swanst. 487; De Gar- (m) See Beldam's Summary of cin v. Lawson, 4 Ves. 433, 2nd ed. Laws affecting Protestant Dissent1 Mer. 100.

ers, 4 Bl. Com 50—54; Burn's 10 Isaac v. Gompertz, 23 July, Justice by Chitty, and Eccl. Law, 1792, Dick. by Wyatt, 169 n.; S. C. tit. Dissenters.

By stat. 1 Will. & Mary, c. 18, s. 8 (v), called the Toleration Act, Protestant dissenting ministers subscribing the declaration, and taking the oaths required by that act, and subscribing the articles of the Church of England, except the 34th, 35th, 36th and part of the 20th article, were exempted from the penalties of several former statutes (w). Quakers also who make the declarations and profession of faith required by the act (x), are exempted from certain penalties mentioned in the act, and declared to be entitled to the same benefits, privileges and advantages as any other dissenters under the act.

(7) 2 & 3 Edward VỊ. c. 1.

The king's supremacy over eccle(0) 5 & 6 Edward VI. c. 1, 3 & 4 siastical persons and things, is Edward VI. c 10, 2 & 3 Edward traced from an early period, in the VI. c. 21.

introduction to the fifth part of (p) i Mary, sess. 2, c. 2.

Coke's Reports. See 4 Inst. 42, (9) i Eliz. c. 1.

331, 341. (r) i Eliz. c. 2.

(u) 13 & 14 Charles II. c. 4. (s) i Eliz. c. 2.

(v) Confirmed and extended by (1) i Eliz. c. 1, ss. 16, 27—31, 10 Anne, c. 2, 19 George III. c. 44, 34-37; 5 Eliz. c. I, ss. 1, 2, 3, 52 Geo. III. c. 155; see 9 Geo. IV.c.

17, substituting a declaration in lieu

4, 10.

By the 17th section of the Toleration Act it was declared, that nothing therein contained should extend to give any ease, benefit or advantage, to any papist or popish recusant whatsoever, or any person that should deny in his preaching or writing the doctrine of the Blessed Trinity, as it is declared in the articles of the Church of England.

By 19 George III. c. 44, s. 2, it was enacted, that no Protestant Dissenter, taking certain oaths and subscribing a declaration against Popery, should be prosecuted for teaching and instructing youth as a tutor or schoolmaster; but by the third section of that act it is provided, that it shall not enable any person dissenting from the Church of England, to hold the mastership of any college or school of royal foundation, or of any other endowed college or school for the education of youth, unless the same should have been founded since the first year of King William and Queen Mary for the immediate use and benefit of Protestant Dissenters.

The 9th & 10th Will. III. c. 32, enacted, that if any person educated in or having made profession of the Christian religion, should by writing, printing, teaching or advised speaking, deny any of the persons in the Holy Trinity to be God, or assert that there are more Gods than one, or deny the Christian religion to be true, or the Holy Scriptures to be of Divine authority; he should upon the first offence be ren

of the sacramental test, as a qualifi- Charles II. c. 1. cation for certain offices.

(x) Since altered by 8 George I. (w) 17 Charles II. c. 2, 13 & 14 Charles II. c. 4, and the 22nd

c. 6.

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