A question of more difficult solution is, whether wholly independent of the statute of charitable uses, and of the doctrines which have grown up under it, and admitting corporations in general cannot take as cestuis que trust under a devise, courts of equity may not sustain and enforce a devise to or for the use of a corporation, provided the object be a charity in itself lawful and commendable, notwithstanding an exception of bodies politic and corporate as competent devisees in the statute of wills. Previous to the statute of Elizabeth, the history of the law of charitable bequests is extremely obscure; and so few traces remain of the exercise by chancery of a jurisdiction over them, that Lord Loughborough informs us, that "prior to the time of Lord Ellesmere (who presided in the Court of Chancery very shortly after the statute of Elizabeth went into operation) there was no information in the Court in which he was sitting; but they made out the case as well as they could by law." This was the course in Porter's Case," decided in the 34th and 35th years of Elizabeth. We have, however, the testimony of some of the most able jurists and equity judges in England, that the Court of Chancery in that country, from times of very high antiquity, and long before the statute of Elizabeth, had cognizance of informations filed by the attorney general for the establishment of charities; and that the equity powers of the Court were applied, though not so beneficially as in after times, to cases of charitable uses. Sir Joseph Jekyll, Master of the Rolls, sitting as commissioner, informs us, that in case of a charity, the king, pro bono publico, has an original right to superintend the care thereof, so that, abstracted from the statute of Elizabeth relating to charitable uses, and antecedent to it, as well as since, it has been every day's practice to file informations in Chancery, in the attorney general's name, for the establishment of charities." Lord Somers takes notice, too, that several things are under the care and superintendency of the king as parens patriæ, and

1 Attorney General v. Bowyer, 3 Ves. 714, 726.

1 Co. R. 22, b.

Eyre v. Countess of Shaftsbury, 2 Peere-Wms. 119.

instances charities, idiots, lunatics, and infants;' and in several cases, Lord Hardwicke also refers to the original jurisdiction of Chancery over the subject of charities, previous to the statute.2

Henley, keeper, afterwards Lord Chancellor Northington, is decisive and strong in his opinion on this point; "I take," says he, "the uniform rule of this Court, before and after the statute of Elizabeth, to have been, that where the uses are charitable, and the person has in himself full power to convey, the Court will aid a defective conveyance to such uses;" and he illustrates his meaning by the example of a devise to a body corporate to charitable uses; thus, he observes, "though devises to corporations were void under the statutes of Henry VIII., yet they were always considered as good in equity, if given to charitable uses."

3

In the case of Attorney General v. Mayor of Dublin,* Lord Redesdale affirms that the statute created no new law on the subject, but only a new and ancillary jurisdiction in the commissioners. The opinion of Lord Eldon evidently was, that previous to the statute the Court of Chancery had the power to render effective an imperfect conveyance for charitable uses." In the case of Attorney General v. the Master of Brentford School, we learn that a decree was made in chancery, in the 12th year of the reign of Elizabeth, before the statutes of char

6

'Lord Falkland v. Bertie, 2 Vern. R. 333.

Bailiffs, &c. of Burford v. Lenthall, 2 Atk. R. 550; Attorney General v. Middleton, 2 Ves. 327; Attorney General v. Tancred, 1 Wm. Black. R. 90; S. C. Ambler, 351; 1 Eden R. 10.

3 The Attorney General v. Tancred, 1 Eden, 10; S. C. 1 Wm. Black. R. 90; and see Wilmot's Opinions, 24, 33; White v. White, 1 Bro. R. 15; Moggridge v. Thackwell, 7 Ves. 69; Weleden v. Elkinton, Plowden, 523; Duke on Charitable Uses, 154, and Moore's Readings.

1 Bligh Parl. R. 347, 348.

"Moggridge v. Thackwell, 7 Ves. 69; Attorney General v. Skinners Company, 2 Russell, 407. See Ld. Chan. Sugden's opinion to same effect, Incorporated Society v. Richards, 1 Drury & Warren (Irish) Ch. R.

1 Mylne & Keene, 376.

itable uses, at the suit of the inhabitants of the parish of Southweald against the heir at law, that he should execute a conveyance for the purpose of providing for the maintenance of the master of a grammar school, and "five poor folks," according to the intent of Sir Anthony Brown, as expressed in his will. The Master of the Rolls, Sir John Leach, expresses himself very decidedly on the subject of that decree; "That at that time no legal devise could be made to a corporation for a charitable use, yet lands so devised were in equity bound by a trust, which a court of equity would then execute."

It seems to be placed beyond question by the Readings of Sir Francis Moore, who penned the statute, and the few cases before the statute, contained in Duke on Charitable Uses,' not only that the Chancellor had the jurisdiction contended for, but exercised it upon the same principles, which have been incorrectly attributed to the act of Elizabeth.

It would appear, too, from the preamble to the statute of Elizabeth, that the only object of it was not to give new validity to charitable donations, but rather to provide a new and more effectual remedy for breaches of those trusts; and this view of the subject is confirmed by the reports of the early adjudications under the statute. Indeed, the elements of the doctrine of the English Chancery, in relation to charitable uses, do not seem to have originated with the statute of Elizabeth, but are traceable to the civil law; and in White v. White, Lord Thurlow expressly says, "the cases had proceeded on notions derived from the Roman or civil law.""

1 Duke on Charitable Uses, 131, 154, 155, 163; Case of Sir Anthony Brown's will, found in Attorney General v. The Master of Brentford School, 1 Mylne & Keene, 376.

2 Kent, Comm. 232; McCartee v. Orphan Asylum Society, 9 Cowen (N. Y.) R. 477, per Jones, Chancellor.

Griffith Flood's Case, Hob. 136; see, however, 1 Chan. Cas. 134, 237 . 6 Dow, 136.

;

Code, lib. 1, t. 2, § 19, 26, tit. 3, § 38; Dig. 38, 2, 16; Strahan's note to Domat, b. 1, tit. 1, § 16; Swinburne, part 6, § 1; 2 Domat, b. 3, tit. 1, § 6; b. 4, tit. 2, § 2, 6; b. 3, tit. 1, § 16; 2 Kent, Comm. 231

1 Bro. Chan. Cas. 15.

In the case of Baptist Association v. Hart's Ex'rs.' where it appeared that a bequest had been made to an unincorporated association, for the purpose of educating youth of the Baptist denomination for the ministry, it was the opinion of the Supreme Court of the United States, as delivered by Mr. Chief Justice Marshall, that charitable bequests, where no legal interest was vested, and which are too vague to be claimed by those for whom the beneficial interest was intended, cannot be established by a Court of Equity, exercising its ordinary jurisdiction, independent of the statute of Elizabeth. Mr. Justice. Story, in a very learned and elaborate opinion in this case, subsequently published, after a very full and critical investigation of all of the authorities bearing upon this point, came to the conclusion, "that the jurisdiction of the Court of Chancery over charities, where no trust is interposed, or there is no person in esse capable of taking, or where the charity is of an indefinite nature, is not to be referred to the general jurisdiction of that Court, but sprung up after the statute of Elizabeth, and rests mainly on its provisions."

2

The Supreme Court of Connecticut decided, that a devise of a farm to the "yearly meeting of people called Quakers, in aid of the charitable fund of the boarding-school established by the Friends in Providence," which was not incorporated, could not be sustained as a charity."

The two last quoted cases do not, it is true, bear directly upon the question we are considering; as they seem to have been decided upon the special ground, that as the objects of the testator's bounty, not being incorporated, were incapable of taking, and the words of the gifts were in presenti, and no trusts interposed to save them, in common law phrase, they must fall to the ground. The high authority, which the learning of the Supreme Court of the United States gave to

14 Wheat. R. 1; S. C. 1 Henning & Munf. (Virg.) R. 471 to 476.

3 Peters, R. Appendix, 481.

Greene v. Dennis, 6 Conn. R. 292.

Com. Dig. Devise K.; 1 Roll. Abr. 909; Com. Dig. Chancery 2, N. 1; Widmore v. Woodroffe, Ambl. 636, 640.

their opinion, has thrown a doubt over the subject of equity jurisdiction in case of charitable uses, without the aid of the statute of Elizabeth, which, in a matter so interesting to the benevolence of the country, cannot but be lamented. In a subsequent case of great importance,' the court seems to have receded, in fact, from the ground taken in the case alluded to; and upon that account the decree was not concurred in by the venerable Chief Justice and Mr. Justice Story. Later decisions' by the same Court seem to have been thought to give evidence of a still farther recession; though they are clearly defensible upon the familiar principle of dedications of lands to public uses, always supported, even though made without deed, where the intent to dedicate is clearly manifested by the owner, especially if others, upon the faith of the dedication, have been led to act in a manner prejudicial to them, if a resumption of the grant were permitted. Strong dissatisfaction with the decision in Baptist Association v. Hart's Ex'rs., upon the grounds taken by the Court, seems to have been manifested by jurists and courts in this country.

In a case of great importance, the question came directly before the Supreme Court of Vermont, in Chancery; and after several arguments, and great research on the part of both Court and Counsel, it was decided, that Courts of Chancery had jurisdiction of bequests to charitable uses, before the statute of Elizabeth, by virtue of their ordinary equity jurisdiction; that the law now established in relation to donations to charitable uses, is not derived from that statute, but existed anterior; and that such donations to an unincorporated societyas, to the Treasurer, for the time being, of the American Bible Society, will, by general law, be upheld.*

'Inglis v. Sailors' Snug Harbor, 3 Peters R. 153.

'Beatty et al. v. Kurtz et al. 2 Peters R. 566; City of Cincinnati v. White, 6 Peters R. 631; Barclay et al. v. Howell's lessee, 6 Peters R. 498; New Orleans v. United States, 10 Peters R. 498; and see M'Connell v. Trustees of Lexington, 12 Wheat. R. 582.

'Ex'rs of Burr v. Smith et al. 7 Vermont R. 302, 303, 304, Williams, Chancellor.

4 Wheat. R. 1.

Executors of Burr v. Smith, 7 Vermont R. 241, where the reader will