Page:Harvard Law Review Volume 8.djvu/230

214 214 HARVARD LAW REVIEW. upon progress and enterprise. In short, there must be a fee interest in some one within a certain fixed time. Of course, an estate tail, or any destructible estate, is not bad. Clearly, Lord Cottenham used the word " inalienable " in this broader sense. The ability to make title to property — technically, to alienate — is a very different thing. As said in Winsor v. Mills,^ " The possibility of obtaining releases is not the test by which to determine the validity or invalidity of a limitation," and with this I am quite sure Lord Cottenham would have agreed. It seems clear to me that Lord Cottenham, when he said, " These rules are to prevent property from being inalienable beyond a certain period," was reasoning in this way: a charitable gift is in itself a perpetuity, being a gift in perpetuum ; it there- fore, of course, renders the subject of the gift " inalienable." Now, as this effect of inalienability is produced by the gift itself, the rule is not involved, because the rule is intended to prevent that which a gift to a charity permits; or, again, the property is already " inalienable " by the fact of its being given to charity ; therefore the rule cannot apply, for if it did, there could be no such thing as a gift to charity. Reasoning in this way, he very readily might have said, " These rules are to prevent property from being 'inalienable' beyond a certain period." Surely the fact that the charity may not alienate the subject of the gift is not the important characteristic of a charitable gift, using the word "alienate" in its strict technical sense; on the contrary, is it not rather the fact, that by reason of the public good charity is permitted to hold property in perpetuum? Charity may be the permanent and final beneficiary of a gift; the property may be literally given to it forever. A charity is the only object of which this may be said ; one cannot provide for a complete and perfect disposal of property forever, save by giving it to charity. Now, is not this quality of the gift its chief characteristic, and is it not fair to assume that Lord Cottenham, when thinking of a charitable gift, was recalling this highest attribute of it, and that he used the word " inalienable" whilst recalling the fact that there was no future disposal of the property, for it was given to charity forever? It was "inalienable" not necessarily in the sense that the charity could not make a good title, but rather in the sense that the fund, or the property, or the proceeds of the property, 1 157 Mass. 362,365,366.