Page:Harvard Law Review Volume 8.djvu/233

217 REMOTENESS OF CHARITABLE GIFTS. 21/ it make if it goes over from one charity to another ? But this reasoning of course is solely from the point of view of public policy: the public had no interest in it, the property was with- drawn from the avenues of trade, as it were, therefore why could not another charity succeed to it ? and from the standpoint of public policy relative to charities, this was perfectly sound. Lord Cottenham thought: The rule requires the charitable gift to vest within the proper limits, but after it has once so vested there it remains, devoted to charity forever. Now, having vested in charity forever, why cannot it pass from one to another ? If it is a charity, it is for the public good, and is it not immaterial what charity it is for? are they not all equally for the public good? But the vice of the above reasoning, as I have already said, is this : the charity itself has rights, and when public policy granted to it the right to hold property in perpetuity, it altered no common law right of property; it simply extended to it the privilege of holding property forever, but it in no way curtailed the common law way in which that property should be held, save that it must be held for the charity forever. There is no reason why the charity should not hold as the individual, and anything which interferes with the gift to the individual, which is void as trans- gressing the rule, should apply equally to the gift to charity. Let me briefly summarize what I have said : — (i.) Lord Cottenham did not use the word " inalienable" in the narrow sense of the mere inability to make title to property, but rather in the broader sense of the fact that it was devoted forever to charity ; it was " inalienable " in the sense that it was outside the avenues of trade, it was different from any other gift, it was " inalienable " in the sense that it was given to one object — as no other gift could be given — forever. This was a perfectly natural meaning of the word, on Lord Cottenham's part, as he had in his mind the chief characteristic, rather than a minor characteristic of a charitable gift. Surely every one will admit that the most important feature of a charitable gift is the fact that the property may be given to it in perpetuunt, and that it is a minor charac- teristic that the charity may not alienate the subject of the gift. In a gift of ^100,000 to charity, the question of " inalienation " is not at all involved in the sense of inability to make title, whilst, on the contrary, it is deeply involved in the sense of the inability to appropriate the ^100,000, or, even if the gift consists of land, to appropriate it or its proceeds to any other purpose than to the