trace the general outline of that history, since it may materially assist us in ascertaining how far the present authority and doctrines of the Court of Chancery in regard to charitable uses, depend upon that statute; and how far they arise from its general jurisdiction, as a court of equity, to enforce trusts, and especially to enforce trusts to pious uses. It is not easy to arrive at any satisfactory conclusion on this head. Until a comparatively recent period, and indeed, until the report of the Commissioners of the Public Records, published by Parliament in 1827 (to which our attention will be more directly drawn hereafter), few traces could be found in the volumes of printed reports, or otherwise, of the exercise of this jurisdiction, in any shape, prior to the statute of Elizabeth. The principal, if not the only cases then to be found, were decided in the courts of common law, and generally turned upon the question, whether the uses were void, or not, within the statutes against superstitious uses. One of the earliest cases is Porter's Case, (1 Co. 226, in 34 & 35 Eliz.); which was a devise of lands, devisable by custom, to the testator's wife in fee, upon condition that she should assure the lands, devised for the maintenance and continuance of a free school, and certain almsmen and almswomen; and it appeared that the heir had entered for a condition broken, and conveyed the same lands to the queen. It was held, that the use, being for charity, was a good and lawful use, and not void by the statutes against superstitious uses; and that the queen might well hold the land for the charitable uses. Lord Loughborough, in commenting upon this case, observed: 'It does not appear that this court at that period had cognizance upon informations for the establishment of charities. Prior to the time of Lord Ellesmere, as far as the tradition of the times immediately following goes, there were no such informations as that upon which I am now

sitting (that is, an information to establish a charity); but they made out their case, as well as they could, by law.' (Atty. Genl. v. Bowyer, 3 Ves. 714, 726.) So that the result of Lord Loughborough's researches upon this point was that, until about the period of enacting the statute of Elizabeth, bills were not filed in chancery to establish charities. It is remarkable, that Sir Thomas Egerton and Lord Coke, who argued Porter's case for the queen, although they cited many antecedent cases, refer to none, which were not decided at law. And the doctrine established by Porter's case is, that if a feoffment is made to a general legal use, not superstitious, though indefinite, although no person is in esse, who could be the cestui que use, yet the feoffment is good; and if the use is bad, the heir of the feoffer will be entitled to enter, the legal estate remaining in him. The absence, therefore, of all authority derived from any known antecedent equity decisions upon an occasion when they would probably have been used, if any existed, did certainly seem very much to favor the conclusion of Lord Loughborough. And in the absence of any such known antecedent decisions, it was not a rash conjecture, for it would be but a conjecture, that Potter's case, having established that charitable uses, not superstitious, were good at law, the Court of Chancery, in analogy to the other cases of trusts, immediately held the feoffees to such uses accountable in equity for the due execution of them; and that the inconvenience felt in resorting to this new and anomalous proceeding, from the indefinite nature of some of the uses, gave rise, within a few years, to the statute of 43 Elizabeth, ch. 4. This view might also have some tendency to reconcile the language of Lord Loughborough with that of an opposite character, used upon other occasions by other chancellors and judges, in reference to the jurisdiction of chancery over charities, as it would show, that

in cases of feoffments to charitable uses, bills to establish those uses might in fact have been introduced, or brought into familiar practice by Lord Ellesmere, about five years before the statute of Elizabeth. This would be quite consistent with the fact, that such bills were not sustained when the donation was to charity generally, and no trust estate was interposed, and no legal estate was devised, to support the uses. It is very certain, that, at law, devises to charitable uses generally, without interposing a trustee, and devises to a non-existing corporation, or to an unincorporated society, would have been, and in fact were, held utterly void for want of a person having sufficient capacity to take as devisee. The statute of Elizabeth, in favor of charitable uses, cured this defect, and provided (as we shall hereafter have occasion more fully to consider,) a new mode of enforcing such uses by a commission under direction of the Court of Chancery. Shortly after this statute, it became a matter of doubt, whether the Court of Chancery could grant relief by original bill in cases within that statute, or whether the remedy was not confined to the proceeding by commission under the statute. That doubt remained until the reign of Charles II., when it was settled in favor of the jurisdiction of the court by original bill. On one occasion, when this very question was argued before him, Lord Keeper Bridgman declared: "That the king as pater patriæ, may inform for any public benefit for charitable uses, before the statute of 30 [43] of Elizabeth, for charitable uses. But it was doubted, the court could not by bill take notice of that statute, so as to grant a relief according to that statute upon a bill. On another occasion soon afterwards, where the devise was to a college, and was held void at law by the judges, for a misnomer, on a bill to establish the devise as a charity, the same question was argued; Lord Keeper Finch (afterwards Lord

Nottingham) held the devise good, as an appointment under the statute of Elizabeth; and he 'decreed the charity, though before the statute no such decree could have been made,' (Anon. 1 Ch. Cas. 267). It would seem, therefore, to have been the opinion of Lord Nottingham, that an original bill would not before the statute of Elizabeth lie to establish a charity, where the estate did not pass at law, to which the charitable uses attached. On the other hand, the language of other judges leads to the conclusion that, antecedent to the statute of Elizabeth, the Court of Chancery did, in virtue of its inherent authority, exercise a large jurisdiction in cases of charities. In Eyre v. Shaftsbury, (2 P. Will. 103, 118), Sir Joseph Jekyll said, in the course of his reasoning on another point: 'In like manner, in the case of 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 practice to file informations in chancery, in the attorney-general's name, for the establishment of charities.' In the Bailiffs, &c., of Burford v. Lanthall, (Atk. 550), Lord Hardwicke is reported to have said: 'The courts have mixed the jurisdiction of bringing informations in the name of the attorney-general with the jurisdiction given them under the statute of Elizabeth, and proceed either way, according to their discretion.' In a subsequent case, which was an information filed by the attorney-general against the masters and governors of a school, calling them to account in chancery, as having the general superintendency of all charitable donations, the same learned chancellor, in discussing the general jurisdiction of the Court of Chancery on this head, and distinguishing the case before him from others, because the trustees or governors were invested with the visitorial powers, said: 'Consider the nature

of the foundation. It is at the petition of two private persons, by charter of the crown, which distinguishes this case from cases of the statute of Elizabeth on charitable uses, or cases before that statute, in which this court exercised jurisdiction of charities at large. Since that statute, where there is a charity for the peculiar purposes therein, and no charter given by the crown to found and regulate it, unless a particular exception out of the statute, it must be regulated by commission. But there may be a bill by information in this court, founded on its general jurisdiction; and that is from necessity; because there is no charter to regulate it, and the king has a general jurisdiction of this kind. There must be somewhere a power to regulate. But where there is a charter with proper powers, there is no ground to come into this court to establish that charity; and it must be left to be regulated in the manner the charter has put it or by the original rules of law. Therefore, though I have often heard it said in this court, if an information is brought to establish a charity, and praying a particular relief and mode of regulation, and the party fails in that particular relief; yet that information is not to be dismissed, but there must be a decree for the establishment. That is always with this distinction, where it is a charity at large or in its nature, before the statute of charitable uses; but not in the case of charities incorporated and established by the king's charter, under the great seal, which are established by proper authority allowed.' And again: 'It is true that an information in the name of the attorneygeneral, as an officer of the crown, was not ahead of the statute of charitable uses, because that original jurisdiction was exercised in this court before. But that was always in cases now provided for by that statute, that is, charities at large, not properly and regularly provided for in charters of the crown.' It was manifestly, therefore, the opinion of Lord

Hardwicke, that, independent of the statute of Elizabeth, the Court of Chancery did exercise original jurisdiction in cases of charities at large, which he explains to mean charities not regulated by charter. But it does not appear that his attention was called to discriminate between such as could take effect at law, by reason of the interposition of a feoffee or devisee, capable of taking, and those where the purpose was general charity, without the interposition of any trust to carry it into effect. The saine remark applied to the dictum by Sir Joseph Jekyll. In a still later case, which was an information to establish a charity, and aid a conveyance in remainder to certain officers of Christ College to certain charitable uses, Lord Keeper Henley (afterwards Lord Northington) is reported to have said: "The conveyance is admitted to be defective, the use being limited to certain officers of the corporation, and not to the corpor ate body, and therefore there is a want of proper persons to take in perpetual succession. The only doubt is whether the court shall supply this defect for the benefit of the charity, under the statute of Elizabeth. And I take the uniform rule of this court, before, at, 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. Thus, though devises to corporations were void under the statute of Henry VIII., yet they were always considered as good in equity, if given to charitable uses.' And he then proceeded to declare, that he was obliged, by the uniform course of precedents to assist the conveyance; and, therefore, he established the conveyance expressly under the statute of Elizabeth. There is some reason to question, whether the language here imputed to Lord Northington is minutely accurate. His Lordship manifestly aided the conveyance as a charity, in virtue of the statute of Eliza

beth. And there is no doubt, that it has been the constant practice of the court, since that statute, to aid defects in conveyances to charitable uses. But it is by no means clear that such defects were aided, before that statute. The old cases, although arising before that statute, were deemed to be within the reach of that statute by its retrospective language; and were expressly decided on that ground. The very case put of devises to corporations, which are void under the statute of Henry VIII., and are held good solely by the statute of Elizabeth, shows that his Lordship was looking to that statute; for it is plain, that a devise, void by statute, cannot be made good upon any principles of general law. What, therefore is supposed to have been stated by him, as being the practice before the statute, is probably, if not founded in a mistake of the reporter, an inadvertent statement of the learned chancellor. The same case is reported in another book, where the language reported to have been used by him is: "The constant rule of the court has always been, when a person has a power to give, and makes a defective conveyance to charitable uses, to supply it as an appointment; as in Jesus College, Collison's Case in Hobart, 136' (Ambler, R. 351). Now, Collison's case was expressly held to be sustainable, only as an appointment under the statute of Elizabeth; and this shows that the language of his Lordship was probably meant to be limited to cases governed by that statute. In a more recent charity case, Sir Authur Piggot in argument said: 'The difference between the case of individuals and that of charities is founded on a principle which has been established ever since the statute of charitable uses, in the reign of Elizabeth, and has been constantly acted upon from those days to the present.' Lord Eldon adopted the remark and said: 'I am fully satisfied as to all the principles laid down in the course of this argument, and to accede

to them all.' His Lordship then proceeded to discuss the most material of the principles and cases from the time of Elizabeth, and built his reasoning, as indeed he had built it before, upon the supposition, that the doctrine, as now established, rested mainly on that statute. Such were the principal cases, or at least the principal cases which my own researches have brought to my notice at the time when the present work was first published, wherein the jurisdiction of chancery over charities, antecedent to the statute of Elizabeth, had been directly or incidentally discussed. The circumstance that no cases, prior to that time, could then be found in equity jurisprudence; the tradition that had passed down to our own times, that original bills to establish charities were first entertained in the time of Lord Ellesmere; the fact, that the cases immediately succeeding that statute, in which devises, void at law, were held good in equity as charities, might have been argued and sustained upon the general jurisdiction of the court, if it then existed, and were yet expressly argued and decreed upon the footing of that statute. These facts and circumstances did certainly seem to afford a strong presumption that the jurisdiction of the court to enforce charities, where no trust is interposed, and where no devisee is in esse, and where the charity is general and indefinite, both as to persons and objects, mainly rests upon the constructions (whether ill or well founded is now of no consequence) of the statute of Elizabeth. And accordingly that conclusion was arrived at and sustained on a very important occasion by the Supreme Court of the United States." "The elements of the doctrine of the English chancery in relation to charitable uses are to be found in the civil lawand it is questionable whether the English system of charities is to be referred exclusively to the statute of Elizabeth. The statute has been resorted to as a

guide because it furnished the largest enumeration of just and meritorious charitable uses; and it may perhaps be rather considered as a declaratory law, or specification of previously recognized charities, than as creating, as some cases have intimated, the objects of chancery juris diction over charities. If the whole jurisdiction of equity over charitable uses and devises was grounded on the statute of Elizabeth, then we are driven to the conclusion that, as the statute has never been re-enacted, our courts of equity in this country are cut off from a large field of jurisdiction over some of the most interesting and meritorious trusts that can possibly be created and confided to the integrity of men. It would appear from the preamble to the statute of Elizabeth that it did not intend to give any new validity to charitable donations, but rather to provide a new and more effect ive remedy for the breaches of those trusts." 2 Kent Com. 287.

The following important citations from leading cases on this subject, arranged in order of their dates, show pretty fully the whole discussion of this question, and in their review of the cases referred to in them, leave little more necessary to a full view of American opinion and authorlty.-In 1827, in Witman v. Lex, 17 Serg. & R. 8892, Chief Justice Gibson says: “At the common law of England these bequests could not be sustained even where there is no uncertainty as to the person; if the bequest be on a trust not defined with reasonable certainty, it will fail; for it is clear the testator did not intend the trustee should have the beneficial interest. Such a bequest however would take effect under the 43rd Elizabeth chap. 4: and this has drawn the counsel to argue against the extension of that statute to this country, a point that must be conceded. But we consider the principles which chancery has adopted in the application of its principles to particular cases

as obtaining here, not indeed by force of the statute, but as part of our own common law; and where the object is defined and we are not restrained by the inadequacy of the instrument which we are compelled to employ, nearly, if not altogether, we give relief to that extent that chancery does in England and this part of our system has been produced by causes which work as powerfully here as did those which produced the system of relief that sprung from the statute of charitable uses. The simplicity which marked the lives of our forefathers enabled them to do without many institutions that in the present state of society, are absolutely indispensable. Incorporations were almost unknown." * * * “It is not intended to attempt an outline of this branch of our equity jurisdiction or to point out those particulars in which it differs from that which has been assumed in England. This must be a matter of gradual development according to the exigency of the cases that may arise. It may safely be suggested however that in many particulars the relief which we should be able to afford through the medium of common law forms, will necessarily fall short of that which would be administered by a Chancellor. Indeed no one would desire to see the doctrine of cy pres carried to the extravagant length that it was formerly, or witness the exercise of an arbitrary discretion in giving effect to a general intention to leave a sum of money to charitable purposes, to be designated thereafter, by disposing it to such charities as the court chooses to direct. No such discretion would be exercised by this court. On the other hand, not professing to found our jurisdiction on the statute, we are not bound like the English courts to restrict it to two cases specifically enumerated in the preamble: and there is therefore little hazard in affirming that a bequest such as in Maurice v. The Bishop of Durham, 9 Ves. 399, in trust to pay debts