Page:Harvard Law Review Volume 8.djvu/234

218 2l8 HARVARD LAW REVIEW. charity forever. The $100,000 is clearly " inalienable " in this sense; if it is not, and if charity can use the gift for any other purpose, then money cannot be given to charity. (2.) Lord Cottenham erred in deciding that property can be transferred, beyond certain periods, in a certain event, from one charity to another charity. He reasoned in this way: he knew that a gift can be made to charity in perpetuity; therefore, he thought, what difference does it make if it goes over, on the happening of a certain event, from one charity to another ? From the point of view of public policy — the public has no interest in it — the property is, as it were, withdrawn from the avenues of trade; therefore why cannot another charity succeed to it? And from the standpoint of public policy Lord Cottenham was perfectly sound. But the vice of his reasoning is this: he regards the question solely from the point of view of the public policy, which permitted a gift to charity to remain forever afterwards devoted to the charitable purpose, but he did not recall the fact that the only alteration which public policy makes in the common law is that the property may forever remain devoted to the one purpose, but public policy in no way curtails the common law way in which that property should be held ; the charity has its rights, and there is no reason why it should not hold as the individual holds. The rule as to the vesting of the gift is quite the same in both the charitable and the individual gift ; they both must vest within the proper limits ; then, after vesting, why should not the same rule continue to be applied to both, always excepting the fact that the future of the charitable gift is determined forever? But this feature of the gift is really quite similar to the gift to the indi- vidual in fee, because they are both a final disposition of the property, — the fee to the individual, the fee to the charity, — only one is possibly of longer duration than the other, as the life of the charity may be longer than that of the individual, but both are equally final dispositions. Now, why, in the case of an indi- vidual, does public policy demand that the absolute power of doing as one wishes with property shall vest within a certain period? I do not mean to enter the field of economic discussion^ but the answer of course is, that this freedom of ownership tends to the advancement of the individual and to the encouragement of enterprise; if no one ever had the freedom of ownership, the creation of wealth would be at its lowest point. Hence, in the case of the individual, the law provides that the freedom of owner-