the management of the assembly. The bill was to have this £1200 laid out according to the will. Lord Hardwicke, the Chancellor, in delivering his judgment, said: "This case requires two considerations: first, whether the legacy in question is good and such as this court can or ought to establish? and secondly, if not, whether it.is void absolutely, or only to the particular intent, so as to leave it a general legacy, and such as the crown may dispose of? As to the first, I am of opinion that it is not a good legacy, and ought not to be established, no such instance being found. Nobody is more against laying penalties or hardships upon persons for the exercise of their particular religion than I am; but there is a great difference between doing this and establishing them by acts of the court. The cases of dissenting ministers before the Toleration Act were different; particularly Baxter's case, was not of an illegal bequest, but was a bequest for poor ejected ministers; and even as to this case of the Jewish religion, it would be for a different consideration were it for the support of poor persons of that religion. Orders are made by me and the Master of the Rolls every year upon petitions made for their support as poor people. But this is a bequest for the propagation of the Jewish religion; and though it is said that this is a part of our religion" (it having been argued that this bequest was only for propagating and reading that law which is allowed in the Church, and which is the foundation of the Christian religion), “yet the intent of this bequest must be taken to be in contradiction of the Christian religion, which is a part of the law of the land, which is so laid down by Lord Hale and Lord Raymond; and it undoubtedly is so; for the constitution and policy of this nation is founded thereon. As to the Act of Toleration, no new right is given by that, but only an exemption from the penal laws. The Toleration Act recites the penal laws, and then not only exempts from those penal laws, but puts the religion of the Dissenters under certain regulations and tests. This renders those

religions legal, which is not the case of the Jewish religion, that is not taken notice of by any law, but is barely connived at by the Legislature." The Lord Chancellor accordingly came to the conclusion that the legacy was not good in law, and ought not to be decreed or established by the court. The second question, namely what ought to be done with the sum of £1200, the amount of the legacy, was considered more doubtful, and the further consideration of it reserved. Upon the further consideration of the matter, the court decreed that the money ought not to accrue to the residue of the personal estate of the testator, but ought to be applied to some other charitable uses, and that the appointment thereof belonged to the Crown; and ultimately the King by his sign manual was graciously pleased, upon the humble petition of the Governor of the Foundling Hospital, to give 1000, part of the sum of £1200, towards supporting a preacher and to instruct the children under his care in the Christian religion and for incidental expenses, &c. It is not known what became of the remaining £200, but if it was not absorbed in costs, it was probably devoted to a similar purpose. And so the money went to a charitable purpose, upon the principle that where the court cannot carry out the intention of the testator, as being against the policy of the law, it may substitute a different charitable object for his bounty. As regards the particular substitution in this instance, I cannot refrain from quoting the words of Lord Eldon: "It would have caused some surprise to the testator if he had known how his devise would have been construed 1." The same judge says in another case: "It is very difficult, I think, seeing that intention to build a Jewish Synagogue, to discover an intention to build 2

2

1 In Att.-Gen. v. Mayor of Bristol, 2 J. & W. 308 (1820).

But the money was not employed in building, but in supporting a preacher and instructing children in the Foundling Hospital in the Christian religion. This was probably unknown to the Chancellor, who could not consult the second and more correct edition of Ambler, which was not published till 1828.

a Foundling Hospital, rather than that the money should not be applied: but the court has said so always 1."

Da Costa v. De Paz was not an isolated case; the principle laid down by Lord Hardwicke, that bequests for advancing the Jewish religion were invalid, though bequests for the support of poor persons of that religion were good, was regularly acted upon when similar dispositions came before the court. An example is the case of Isaac v. Gompertz, which came before the Master of the Rolls in 1783, but was not finally decided till 1786. Benjamin Isaac by his will left several annuities: first, an annuity of £20 for teaching and instructing ten poor Jews' children at Bromsall; 402 for the support and maintenance of the Jews' Synagogue in Magpie Alley; and 30 for teaching and instructing ten poor Jews' children in London; £20 to be given away every New Year's Day among poor Jews; and 30 to be laid out and expended every year in the purchase of coals to be given away and distributed among poor Jews and their families, &c. All the legacies were allowed except that given to the synagogue; as to which the order of the court was: "And as to the annuity of £40 given for the support and maintenance of the Jews' said synagogue in Magpie Alley, it was declared that the same ought not to fall and accrue to the personal estate of the said testator, but ought to be applied to some other charitable use, and that the appointing and directing that charitable use was in the Crown; and this court doth recommend it to His Majesty's Attorney-General to apply to the King for a sign manual to appoint and direct to what charitable use or uses the said annuity of £40 and the arrears shall be applied 3." The legacy was ultimately divided into

1 Moggridge v. Thackwell, 2 Ves. p. 81 (1802).

Ambler's note gives £10; but this must be a misprint. See the end of the note.

* See Ambler, p. 228 (note), and 7 Ves. p. 61.

moieties; one moiety being given to the Magdalen Hospital, the other to the London Infirmary1.

It would not be right while dealing with this subject to omit the case of Straus v. Goldewid, heard by Sir L. Shadwell, Vice-Chancellor of England in 1837. There the testator bequeathed one-third of his residuary personal estate in the following words: The remaining third of the above residue to be given to the Raiers and Wardens of the Great Synagogue in this City of London in the manner hereinafter mentioned: that is to say, the interest or dividends arising from this third to be, every year on the Eve of the Passover, distritated at least among en worthy men who have wives and eliren, among whom there ought to be some learned men, to partitase meat andi wine fit for the service of the two nights of Fanover.” The reporter states that the Vice-Chanceler heid that the bequest, being intended to enable persons professing ze Jewish religion to observe its rites was good. I cannot help thinking that this decision is miamparsed. for otherwise it is contrary to the accepted andiorites aimaty quoted. It might have been a un an ntention 21 support poor persoas of the day ing them with suitable viande in most se ne inte/1 not, conformably viti ne parly and tear of the law, have been faded in mantan rites and observates for me Te Fig 101 Int received the benets of the

had already been sdm 11 Roman Cathile Carne

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from and after the commencement of this Act Her Majesty's subjects professing the Jewish Religion in respect to their Schools, Places for Religious Worship, Education and Charitable Purposes and the Property held therewith, shall be subject to the same Laws as Her Majesty's Protestant Subjects dissenting from the Church of England are subject to, and not further or otherwise."

The legal status of the religious endowments of Protestant Dissenters is well summarized by Lord Eldon in the following words: "I take it that, if land or money were given (in such a way as would be legal notwithstanding the statutes concerning dispositions to charitable uses) for the purpose of building a church or a house, or otherwise for maintaining or propagating the worship of God, and if there were nothing more precise in the case, this court would execute such a trust, by making it a provision for maintaining and propagating the Established Religion of the country. It is also clearly settled that, if a fund, real or personal, be given in such a way that the purpose be clearly expressed to be that of maintaining a society of Protestant Dissenters-promoting no doctrines contrary to law, although such as may be at variance with the doctrines of the Established Religion—it is then the duty of the court to carry such a trust as that into execution and to administer it according to the intent of the founders 1."

At the present time therefore Jews are practically in the same position as Protestant Dissenters in respect of their religious endowments, and can as a general rule with reason anticipate that any endowments they found will be carried into effect. But it must be remembered that the operation of the Act is expressly confined to schools, places for religious worship, education, and charitable purposes, and that any endowment which cannot be brought under one of these four heads will still be subject to the old law, and might therefore be declared void on the principle of the old cases. However, the courts of law, which have

1 Att.-Gen. v. Pearson (1817), 3 Mer. 353, at p. 409.