In a manuscript volume of the orders of the court of chancery, under the colonial government, which is preserved in the office of the clerk of the court of appeals, there is found a record of the proceedings in a case determined in that court, held before the governor and council, in the year 1708, which bears directly upon the question. The attorney general filed an information against William Cullin, to compel the payment of seventy-five pounds, bequeathed by one Nicholas Cullin for the benefit of the poor of New York and Albany, which was directed to be distributed by certain trustees named in the will,-fifty pounds among the poor people in New York, and twenty-five pounds to those in Albany. The bill of complaint alleged that the defendant, under a power of attorney from the executor in England, had possessed himself of the testator's estate in the colony, 'out of which, according to equity, he ought to have paid the legacies aforesaid, forasmuch as the said legacies were given to pious and charitable uses.' 'And as the preservation of charitable uses is of great public benefit, and great concern to our Lady the Queen, and the poor aforesaid, in consideration whereof,' &c., the attorney general prayed that the defendant might answer, and be decreed to pay the amount, &c. The defendant answered, and the cause being heard upon the pleadings, a decree was made that he should pay to the trustees the amount of the legacies to be distributed to the poor according to the will of the testator." In 1857 followed the Dublin case, 38 N. H. 510, where it is said by Perley, C. J.: "When the terms used in the instrument creating the trust are broad enough in the most extended sense that can be given to them upon the common principles of interpretation to include the religious opinions in question, it will be inferred that the intention was to have it in the discretion of the trustee to apply the fund for the support of those opinions. If the donor intended to insist

on a more limited application of his charity, it will be supposed that he would not have left his intention to be gathered by a narrowed construction of general and doubtful terms on an appeal to courts of law: especially if there were other appropriate terms in common use by which his intention might have been placed beyond doubt or cavil. This rule for construing the language used by the founder of a religious charity to designate the doctrines to be supported is recognized in numerous cases and so far as I am informed, denied in none. It was laid down by Walworth Chancellor in Miller v. Gable 10 Paige 62, and Gardner Pres. says in the same case, 2 Denio 548: 'I cordially agree with the Chancellor in opinion that it must be a plain and palpable abuse of a trust which would induce a court of equity to interfere respecting a controversy growing out of a difference in religious and sectarian tenets.' In the Attorney General v. The Meeting house in Federal Street, 3 Gray 58, the rule is thus stated by Shaw C. J.: 'An owner of property may dispose of it in trust to maintain and inculcate any doctrines of Christianity clearly and specifically designated; but he must do it in terms so clear as to leave no doubt of his intentions. The remarks of Walworth C. in the Baptist church v. Witherell, 3 Paige 296, and of Lord Eldon in Attorney General v. Pearson 3 Meriv. 402 and of Maule J. in his opinion given to the Lords in Shore v. Wilson, 9 Cl. & F. 499, bear upon the same point.' 'When a fund is given to a voluntary society which is afterwards incorporated, the fund vests in the corporation; so if a fund is given in trust for a voluntary society afterwards incorporated, the fund would be held in trust for the corporation. Kniskern v. the Luth. Charities, 1 Sandf. Chancery 142; Presbyterian church v. Executors of Daimon, 1 Dessau. 154.' * * 'Witnesses have been examined who say that they have made the doctrines and

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history of the Congregational denomination, a particular study and the opinions derived from the study of books and treatises on the subject would be offered to show the general meaning of the term, minister of the Congregational persuasion. I think such evidence is not competent. * * The authorities appear to be quite decisive against the admissibility of such evidence. We are of opinion that the general meaning of the terms used in this will, whether it depends on existing or former usage, must be determined by the court as matter of law without aid from the testimony of witnesses to their opinions; and that to ascertain the meaning we may resort to history and works and treatises of acknowledged authority which have been brought to our notice in the arguments of counsel and by the testimony of witnesses or what we have met with in the course of our own inquiries." And see the opinion in 1860 in Chambers v. St. Louis, 29 Mo. 543: "In maintaining the proposition that the charity created by the will of Mullanphy can be enforced in our courts, we meet with no difficulty in finding cases in support of it. We are not of the opinion that charities derive their existence from the 43 Eliz. That statute was passed to provide remedies for abuses in the management of charities and not for the purpose of giving validity to them by new force. It referred to them as existing things and gave an additional remedy to prevent them from being diverted from the objects for which they were created. If the whole jurisdiction of equity over charitable uses and devises was grounded on the statute of Eliz. 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 authority of men." And in 1867, Gray, J., says in Jackson v. Phillips, 14 Allen

574: "Much confusion of ideas has arisen from the use of the term cy pres in the books to describe two distinct powers exercised by the English Chancellor in charity cases, the one under the sign manual of the crown, the other under the general jurisdiction in equity; as well as to designate the rule of construction which has sometimes been applied to executory devises or powers of appointment to individuals, in order to avoid the objection of remoteness. It was of this last, and not of any doctrine peculiar to charities, that Lord Kenyon said, 'The doctrine of cy pres goes to the utmost verge of the law, and we must take care that it does not run wild and Lord Eldon, 'It is not proper to go one step farther.' Brudenell v. Elwes, 1 East 451; S. C. 7 Ves. 390. 1 Jarman on Wills, 261-263. Sugden on Powers, c. 9, sect. 9. Coster v. Lorillard, 14 Wend. 309, 348. The principal, if not the only, cases in which the disposition of a charity is held to be in the crown by sign manual are of two classes; the first, of bequests to particular uses charitable in their nature, but illegal, as for a form of religion not tolerated by law; and the second, of gifts of property to charity generally, without any trust interposed, and in which either no appointment is provided for, or the power of appointment is delegated to persons who die without exercising it. It is by the sign manual and in cases of the first class, that the arbitrary dispositions have been made, which were so justly condemned by Lord Thurlow in Moggridge v. Thackwell, 1 Ves. Jr. 469, and Sir William Grant in Cary v. Abbot, 7 Ves. 494, 495; and which, through want of due discrimination, have brought so much discredit upon the whole doctrine of cy pres. Such was the case of Attorney-General v. Baxter, in which a bequest to Mr. Baxter to be distributed by him among sixty pious ejected ministers, (not, as the testator declared, for the sake of their nonconformity, but because he knew many of them to be pious and

good men and in great want,) was held to be void, and given under the sign manual to Chelsea College; but the decree was afterwards reversed, upon the ground that this was really a legacy to sixty individuals to be named. 1 Vern. 248; 2 Vern. 105; 1 Eq. Cas. Ab. 96; 7 Ves. 76. Such also was the case of Da Costa v. De Pas, in which a gift for establishing a jesuba or assembly for reading the Jewish law was applied to the support of a Christian chapel at a foundling hospital. Ambl. 228; 2 Swanst. 489 note; 1 Dick. 258; 7 Ves. 76, 81. This power of disposal by the sign manual of the crown in direct opposition to the declared intention of the testator, whether it is to be deemed to have belonged to the king as head of the church as well as of the state, 'intrusted and empowered to see that nothing be done to the dishersion of the crown or the propagation of a false religion; Rex v. Portington, 1 Salk. 162; S. C. 1 Eq. Cas. Ab. 96; or to have been derived from the power exercised by the Roman emperor, who was sovereign legislator as well as supreme interpreter of the laws; Dig. 33, 2, 17; 50, 8, 4; Code, lib. 1, tit. 2, c. 19; tit. 14 c. 12; is clearly a prerogative and not a judicial power, and could not be exercised by this court; and it is difficult to see how it could be held to exist at all in a republic, in which charitable bequests have never been forfeited to the use or submitted to the disposition of the government, because superstitious or illegal. 4 Dane Ab. 239. Gass v. Wilhite, 2 Dana, 176. Methodist Church v. Remington, 1 Watts, 226. The second class of bequests which are disposed of by the king's sign manual is of gifts to charity generally, with no uses specified, no trust interposed, and either no provision made for an appointment, or the power of appointment delegated to particular persons who die without exercising it. Boyle on Charities, 238, 239. Attorney-General v. Syderfen, 1 Vern. 224; S. C. 1 Eq. Cas. Ab. 96. Attorney

General v. Fletcher, 5 Law Journal (N. S.) Ch. 75. This too is not a judicial power of expounding and carrying out the testator's intention, but a prerogative power of ordaining what the testator has failed to express. No instance is reported, or has been discovered in the thorough investigations of the subject, of an exercise of this power in England before the reign of Charles II. Moggridge v. Thackwell, 7 Ves. 69-81. Dwight's Argument in the Rose Will Case, 272. It has never, so far as we know, been introduced into the practice of any court in this country; and, if it exists anywhere here, it is in the legislature of the Commonwealth as succeeding to the powers of the king as parens patriæ. 4 Kent Com. 508, note. Fontain v. Ravenel, 17 How. 369, 384. Moore v. Moore, 4 Dana, 365, 366. Whitman v. Lex, 17 S. & R. 93. AttorneyGeneral v. Jolly, 1 Rich. Eq. 108. Dickson v. Montgomery, 1 Swan, 348. Lepage v. Macnamara, 5 Iowa, 146. Bartlet v. King, 12 Mass. 545. Sohier v. Massachusetts General Hospital, 3 Cush. 496, 497. It certainly cannot be exercised by the judiciary of a state whose constitution declares that 'the judicial department shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.' Declaration of Rights, Art. 30. The jurisdiction of the Court of Chancery to superintend the administration and decree the performance of gifts to trustees for charitable uses of a kind stated in the gift stands upon different grounds; and is part of its equity jurisdiction over trusts, which is shown by abundant evidence to have existed before the passage of the Statute of Charitable Uses. Sir Francis Moore records a case in which a man sold land to another upon confidence to perform a charitable use, which the grantor declared by his last will that the grantee should perform; 'the bargain was never enrolled, and yet the lord chancellor decreed that the heir should sell

the land to be disposed according to the. limitation of the use; and this decree was made the 24th of Queen Elizabeth, before the Statute of Charitable Uses, and this decree was made upon ordinary and judicial equity in chancery.' Symons' Case, Duke, 163. About the same time the Court of Chancery entertained a suit between two parties, each claiming to be trustee, to determine how bequests for the weekly relief of the poor of certain towns, for the yearly preferment of poor children to be apprentices, and for the curing of divers diseased people lying by the highway's side, should be 'employed and bestowed according to the said will.' Reade v. Silles, (27 Eliz). Acta Canc. 559. A decree in 16 Eliz., confirming a report of the master of the rolls and others to whom a suit for enforcing a charitable trust founded by will had been referred, is cited in 1 Spence on Eq. 588, note. For years before the St. of 43 Eliz., or the similar act of 39 Eliz., suits in equity by some in behalf of all the inhabitants of a parish were maintained to establish and enforce bequests for schools, alms or other charitable purposes for the benefit of the parish, which would have been too indefinite to be enforced as private trusts. Parker v. Browne (12 Eliz.) 1 Cal. Pro. Ch. 81; S. C. 1 Myl. & K. 389, 390; Dwight's Charity Cases, 33, 34; in which the devise was in trust to a corporation incapable at law of taking. Parrot v. Pawlet, (21 Eliz.) Carey 47, Elmer v. Scot, (24 Eliz.) Choice Cas. Ch. 155. Mathew v. Marow, (32-34 Eliz.) and Hensman v. Hackney, (38 Eliz.) Dwight's Charity Cases, 65, 77; in which the decrees approved schemes settled by masters in chancery. Many other examples are collected in the able and learned arguments, as separately printed in full, of Mr. Binney in the case of Girard's Will, and of Mr. Dwight in the Rose Will Case. And the existence of such a jurisdiction anterior to and independent of the statute is now generally admitted.

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Vidal v. Girard, 2 How. 194-196, and cases cited. Perin v. Carey, 24 How. 501. Magill v. Brown, Brightly, 346. 2 Kent Com. 286-288, and note. Burbank v. Whitney, 24 Pick. 152, 153. Preachers Aid Society v. Rich, 45 Maine, 559. Derby v. Derby, 4 R. I. 436. Urmey &. Wooden, 1 Ohio State R. 160. Chambers v. St. Louis, 29 Missouri, 543. 1 Spence on Eq. 588. Tudor, 102, 103." * "It is accordingly well settled by decisions of the highest authority that when a gift is made to trustees for a charitable purpose, the general nature of which is pointed out, and which is lawful and valid at the time of the death of the testator, and no intention is expressed to limit it to a particular institution or mode of application, and afterwards, either by change of circumstances the scheme of the testator becomes impracticable, or by change of law becomes illegal, the fund, having once vested in the charity, does not go to the heirs at law as a resulting trust, but is to be applied by the court of chancery, in the exercise of i jurisdiction in equity, as near the testator's particular directions as possible, to carry out his general charitable intent. In all the cases of charities which have been administered in the English courts of chancery without the aid of the sign manual, the prerogative of the king acting through the chancellor has not been alluded to, except for the purpose of distinguishing it from the power exercised by the court in its inherent equitable jurisdiction with the assistance of its masters in chancery." Our last citation of judicial opinion is that of Judge Buskirk, in 1871, in Grimes v. Harmon, 35 Ind. 249: "We lay down the following principles of law as appcable to the case under consideration, and which are clearly deducible from the foregoing authorities. 1. The jurisdiction of the English Court of Chancery has several branches, and is derived from various sources. The most important branch of its power is that general one

which exercises, under and in virtue of its judicial capacity, as a court of equity, in common with the court of exchequer; but besides this extensive equity jurisdiction, it has other powers which are peculiar to itself. Of these powers, the most important and extensive are the prerogative powers, which are not judicial, but are exercised by the lord chancellor merely as the representative of the sovereign, and by virtue of the King's prerogative as parens patria. The third and remaining branch of its jurisdiction was created and conferred upon the lord chancellor as the keeper of the great seal and of the King's conscience, by the statute of 43 Elizabeth, known as the statute of Charitable Uses, which created a new and ancillary jurisdiction by commission to be issued out of the high court of chancery, to inquire whether the funds given for charitable use had or had not been misapplied, and to see to their proper application. 2. That this prerogative power is derived directly from the king and under his signmanual, and was not conferred by the statute of forty-third Elizabeth, known as the statute of charitable uses. 3. That the statute of 43 Elizabeth created no new law upon the subject of charitable uses, but simply defined what objects are included in the term charities, and only created a new and ancillary jurisdiction, a jurisdiction created by a commission to be issued out of the Court of Chancery, to enquire whether the funds given for charitable purposes had or had not been misapplied, and to see to their proper application; but the proceedings of that commission were made subject to appeal to the lord chancellor, and he might reverse or affirm what they had done, or make such order as he might think fit for reserving the controlling jurisdiction of the Court of Chancery, as it existed before the passing of that statute; that the persons selected and the machinery provided for the enforcement of the new remedy were local to the kingdom of Great Britain, and

have no existence in this State, and are wholly unsuited to our laws, institutions, and modes of administering justice; that the General Assembly having failed to provide any mode or machinery for the exercise of the new jurisdiction created by the said statute, the courts of this state possess no power or means of executing or enforcing the remedy provided by such statute; and that as the said statute created no new law, nor conferred new rights, and as the remedy provided was local to the kingdom of Great Britain, and is wholly unsuited and inapplicable to our laws and institutions, the power and jurisdiction of our courts over charitable uses have not been increased or enlarged by the said statute. 4. That the prerogative power exercised by the Court of Chancery in England was conferred on such court by the king, who claimed to be the father of all his subjects, and as such had the power and right to direct and control the lord chancellor, who was the keeper of the great seal and of the king's conscience, in the protection and enforcement of the rights of such of his subjects as were unable to protect themselves. 5. That in this country the people are the true and legitimate possessors of all power; that when they created the federal government they did not confer on such government any prerogative power; that if such power exists in the people, it was retained by them in their sovereign capacity; that the people of this State retain all the power that was not delegated to the federal or state governments; that it is expressly declared in our State constitution that the judicial power of the State shall be vested in a Supreme Court, in Circuit Courts, and in such inferior courts as the General Assembly may establish, and that such courts shall have such civil and criminal jurisdiction as may be prescribed by law; that the General Assembly has only conferred upon the courts of this State judicial power and functions; that the courts of this State having no prerog