1. Hartz, Louis, Economic Policy and Democratic Thought: Pennsylvania, 1776–1860 (Cambridge, Mass., 1948CrossRefGoogle Scholar); Oscar & Mary Handlin, Commonwealth: A Study of the Role of Government in the American Economy, Massachusetts, 1774–1861 (Cambridge, Mass., 1947Google Scholar)

2. Wyllie, Irvin, ‘The Search for an American Law of Charity, 1776–1844’, Mississippi Valley Historical Review, xlvi.203 (1959Google Scholar).

3. Miller, Howard, The Legal Foundations of American Philanthropy, 1776–1844, (Madison, 1961Google Scholar).

4. Ratner, Sidney, American Taxation (New York, 1942) 449–50, 466–67, 470–72Google Scholar.

5. Wyllie, supra note 2 at 208.

6. 17 U.S. (1 Wheat.) 1 (1819).

7. 17 U.S. (1 Wheat.) 518 (1819).

8. 43 U.S. (2 Hou.) 127 (1844).

9. Wyllie, supra note 2 at 220. See also, Scott, Austin, Law of Trusts iv, § 348.3 at iv, 2785–86 (Boston vols. 3rd. ed. 1967Google Scholar); Scott, Austin, ‘Charitable Trusts in New York’, 26 New York University Law Review 251 (1951Google Scholar); Zollmann, Carl, American Law of Charities (Milwaukee), 20–70Google Scholar; Zollmann, Carl, ‘The Development of the Law of Charities in the United States’, 19 Law Review 91, 286 (1919Google Scholar); Fowler, Robert L., The Law of Charitable Uses, Trusts and Donations in New York (New York, 1896), 43–68, 95–124Google Scholar.

10. Howard Miller, supra note 4 at xi.

11. Ibid. at xiii.

12. Ibid. at 40–41. Compare Holmes, Oliver W., The Common Law (Boston, 1963 reprint edition) 5Google Scholar.

13. Freemont-Smith, Marion R., Foundations and Government (New York, 1965) 54–157Google Scholar.

14. Pennsylvania and Massachussetts, for instance, offer interesting comparisons to New York. Whereas the New York courts eventually perceived an overriding public policy favoring the corporate form as the legislatively ordained instrument for charitable endeavors, despite the absence of any real evidence to support that view, the Pennsylvania courts favored charitable trusts, despite substantial evidence that public policy favored the corporate form. See Witman v. Lex, 17 S & R 88 (1827); Zimmerman v. Anders, 6 W & S 218 (1843); Pickering v. Shotwell, 10 Pa. 23 (1848). Compare Constitution of 1790, Art. V. § 6; c. 1536, Acts of 1791. Charitable trusts for arguably vague purposes were sustained routinely prior to 1855, when unincorporated associations were placed on the same footing as charitable corporations (c. 347 §§ 4, 10, Laws of 1855). See, e.g., Martin v. M'Cord, 5 Wat. 495 (1836) (trust for benefit of neighborhood); Pickering v. Shotwell, 10 Pa.23 (1848) (trust for distribution of good books among poor people in back part of Pennsylvania); Thomas v. Ellmaker, 1 Pars. 98 (1844) (trust for volunteer fire association). In Batlett v. King, 12 Mass. 536 (1815). the Massachusetts Supreme Judicial Court specifically rejected the argument that the legislative branch had occupied the field of charity administration by frequently granting charters of incorporation by special act. See also, Going v. Emery, 33 Mass 107 (1834).

15. Cf. Gordon, Robert W., ‘J. Willard Hurst and the Common Law Tradition in American Legal Historiography’, 10 Law and Society Review 9 (1975Google Scholar).

16. Here ostensible judicial activism is related to institutional and political change. Horwitz, Morton, Transformation of American Law, 1780–1870) (Cambridge, Mass. 1976)Google Scholar, on the other hand ignores institutional and political factors. Changes in private law are explained as the product of judicial activism, which is itself fostered by a class-based attitudinal alliance.

17. By the seventeenth century, the courts of common law had established exclusive jurisdiction over absolute transfers of real property and primary jurisdiction over absolute transfers of personalty. With respect to the latter, the courts of common law shared jurisdiction with the courts Christian. Jones, Gareth, The History of the Law of Charity, 1500–1827) (Cambridge, England 1969) 17–18CrossRefGoogle Scholar.

18. To make a legally effective transfer, an owner was required to transfer title to the property, by means of a written instrument or other action manifesting his intention to transfer, to one who had the legal capacity to receive and hold the property. At law, it was necessary for title to vest fully in the new owner at the time of transfer. Thus, once the law had countenanced the free alienability of land, an owner could convey title in realty to personalty, during his life or at death, to other individuals. Statute of Wills, 32 H. VIII c.l (1540), amended by 34 H. VIII c.5 (1542).

19. A corporation, being a juridical person, was generally competent at law to take title to property. A conveyance to an unincorporated association was troublesome, however, because of the absence of any legal person in whom title could vest. Conveyances of land presented special problems. Distrust of the power of religious houses and sympathy for the free alienability of land had led to the enactment of statutes of mortmain, forbidding conveyances of land to corporations. 9 H. III c.36; 7 Edw. I de viris religiosis; 13 Edw. I c.32; 15 Rich. II c.5. As a practical matter, the impact of these statutes was somewhat limited in the fifteenth and sixteenth centuries because many exceptions were granted to corporations by the Crown and Parliament. Shelford, L., On Mortmain (London 1836) 36Google Scholar; Statutes 1 W. & M. c.2, 7; 8 W. III c.37. In 1540, however, Parliament enacted the Statute of Wills, which partially reaffirmed this general policy by prohibiting devises of land to ‘Bodies Politick or Corporate’. 32 H. VIII c.1 (1540); 34 H. VIII c.5 (1542). Of course, neither the mortmain statutes nor the Statute of Wills precluded corporations from taking personalty or from taking title to realty by inter vivos transfer.

20. The trust form enabled property owners to convey to the use of minors and defectives, who themselves could not hold property at law. However, trusts were subject to the general rule that no trust would be valid unless it ran in favor of a definite person or class, in whose favor the trust could be enforced consistent with the terms of its creation. Testamentary trusts, like other will provisions, were governed by the requirement that the intention of the testator be expressed with extreme clarity and specificity in the written instrument in which the trust was created. Although courts of chancery would favor a testator's clearly expressed intentions against the claims of his heirs at law, the courts would not substitute their own justment where the testator was silent or vague. Gareth Jones, supra note 17 at 60–65, 70–91. The trust form also permitted corporations to obtain the use of lands they could not own directly, but the general rules that developed with respect to trusts did nothing to help the property owner who wished to convey to individuals for a limited purpose not related to a definite beneficiary. Nor did they remedy the problems faced by the unincorporated association, which was neither capable of taking legal title nor able to enforce a use. Thus, the needs of charity transcended even the trust, in its ordinary form. Ibid. at 65–70.

21. Ibid. at 4 (footnotes omitted).

22. Ibid. at 7–15.

23. 43 Eliz. I c.4 (1601).

24. Gareth Jones, supra note 17 at 16–56.

25. 9 Ves. 399 (1804).

26. Ibid. at 405.

27. 3 Ves. 726 (1798). See also Attorney General v. Lord Gower, 2 Eq. Cas. Abr. 195 (1736) (Hardwicke, L.C.) (the judge's role in charity cases is to ‘do justice to all, and not … oppress any man for the sake of charity’).

28. 3 Ves. at 726.

29. Howard Miller, supra note 3 at 4–8; Fowler, supra note 9 at 23–28, 43–49; Wyllie, supra note 2 at 204–207.

30. Howard Miller, supra note 3 at 14–18.

31. Art. 35, New York Const, of 1777 in Thorpe, Francis, ed. American Charters, Constitutions and Organic Laws, 7 vols., (Washington, D.C., 1909) v., 2635Google Scholar.

32. 1 Jones & Varick, comps., Laws of the State of New York 281 (1789)Google Scholar.

33. 2 Jones & Varick, 93 (1789).

34. 9 Geo. II c.36 (1736).

35. Indeed, the question would have remained entirely theoretical if it had not been for the conjunction of the decisions in Morice v. Bishop of Durham, supra note 25, and Attorney General v. Bowyer, supra note 27, and the steps taken by the former colonies to create their own systems of statute law. See Carl Zollman, American Law of Charities, supra note 9 at 4–5.

36. Art. 5 Const, of 1821 in 5 Thorpe, supra note 31 at 2646–2647 (1909).

37. 7 Johns Ch. R. 292 (N.Y. 1823).

38. Ibid. at 294.

39. 17 U.S. (4 Wheat.) 1 (1819).

40. Ibid. at 28–29.

41. 7 Johns Ch. Rep. at 292.

42. Ibid. at 294.

43. Kent, James, Commentaries on American Law, 4 vols. (2d ed. New York 1832) iv, 508Google Scholar.

44. 9 Cowen 437 (N.Y. 1827).

45. Ibid. at 489.

46. Ibid. at 470–480.

47. Ibid. at 471.

48. Ibid.

49. Ibid.

50. Ibid. at 473.

51. Ibid. at 488–489.

52. 6 Paige 640 (N.Y. 1837).

53. Ibid. at 649.

54. Ibid.

55. 3 Edw. 79 (N.Y. 1837).

56. Ibid. at 89.

57. 1 Hoff. Ch. 202 (N.Y. 1839).

58. 43 U.S. (2 How.) 127 (1844).

59. 1 Hoff. Ch. at 244–245.

60. A ‘passive’ use was one in which there was no power of management or discretion vested in the trustee such as to require him, rather than the beneficiary, to hold title to the trust property.

61. The Revised Statutes were thought to be ‘the first attempt to create and establish for any commonwealth governed by the English common law, and by legislative statutes, after the manner of the British Parliament, of a body of written law, systematically arranged, based on the principles of law as a science, regulating the exercise of public and private rights, establishing domestic, property, and contract relations, and covering the administration of every department of the Government, without touching the integrity of the unwritten law, or transcending the proper bounds of legislative control’. Butler, William Allen, The Revision And The Revisers (New York, 1889) 22–23Google Scholar.

62. Sec. 45, 1 Rev. Stats, of N.Y. 727 (1828).

63. Sec. 55, 1 Rev. Stats. 728–729.

64. Sec. 56, 1 Rev. Stats. 729.

65. Sec. 58, 1 Rev. Stats. 729.

66. 1 Rev. Stats. VIII (2d ed. 1836).

67. 3 Rev. Stats. 579 (2d ed. 1836).

68. Ibid. at 580.

69. Ibid. at 580–583.

70. Ibid. at 581.

71. Ibid.

72. Ibid. at 581–582.

73. Ibid. at 582–583.

74. Ibid. at 583.

75. Ibid. at 585.

76. Ibid.

77. Ibid.

78. 6 Paige 640 (N.Y. 1837).

79. Ibid. at 650.

80. 3 Edw. 79, 82 (N.Y. 1837).

81. 1 Hoff. Ch. 202 (N.Y. 1839).

82. Ibid. at 219–222.

83. Ibid. at 230–233.

84. Ibid. at 237.

85. Ibid. at 237.

86. 2 Sandf. Ch. 46 (N.Y. 1844).

87. Ibid. at 51.

88. Ibid. at 51–52.

89. Ibid. at 52.

90. Art. 6, §§ 2–3, Const, of 1846 in Thorpe, v., 2663 (1909).

91. Bishop & Attree, Debates and Proceedings of the Convention for the Revision of the Constitution of the State of New York, 1846 (Reps. New York 1846) 555Google Scholar.

92. Ibid. at 560, 608.

93. Art. V, Sec. 3, Const, of 1821 in Thorpe, v., 2647 (1909).

94. Art. 5, Const, of 1846 in Thorpe, v., 2647 (1909).

95. Art. 6, Const, of 1846 in Thorpe, v., 2663 (1909).

96. Art. 6, Sec. 4, Const, of 1846, amended 7 Nov. 1876 in Thorpe, v., 2682 (1909).

97. Art. 7, Sec. 9, Const, of 1821 in Thorpe, v., 2648 (1909).

98. Lincoln, Charles Z., The Constitutional History of New York, 5 vols., (Rochester, 1906) ii, 64Google Scholar.

99. Thorpe v. 2669 (1909). As Professor Gunn has pointed out, because a corporation was originally a ‘“body politic” and thus dependent upon a creative act of the sovereign power for existence, it enjoyed a special, and mutually beneficial, relationship to government’. Gunn, L. Ray, ‘Political Implications of General Incorporation Laws in New York to 1860’, 59 Mid-America 171 (1977Google Scholar). Hampered by a lack of funds and poorly developed administrative procedures, and often preferring private over public xsaction, the states originally relied on corporations to perform essential public services. Ibid. See also Charles River Bridge v. Warren Bridge, 11 Pet. (36 U.S.) 420 (1837).

As the number of corporations grew and their relationship to the public interest became increasingly remote, and ‘[a]s corporate entrepreneurs succeeded in obtaining such legal advantages as unlimited life and limited liability and as more and more Americans came to view the corporation as a monopoly dependent upon special privileges for its economic survival, the traditional partnership between government and corporation began to unravel’. L. Ray Gunn, supra, at 172. See also Hurst, J. Willard, Law and the Conditions of Freedom (Madison 1964) 15–17Google Scholar; Hurst, J. Willard, Legitimacy of the Business Corporation (Charlottesville 1967) 43–47Google Scholar; Adolph Berle, Constitutional Limitations on Corporate Activity, 100 U. Pa. L. Rev. 933, 942–944 (1952); Oscar & Mary Handlin, supra note 1 at 67, 74.

100. Bishop & Attree, supra note 90, 222.

101. Ibid.

102. Ibid. at 971.

103. c. 319, Laws of 1848.

104. Albany Evening Journal, Feb. 3, 14 and 16, Mar. 4, 1848.

105. After Senator Johnson successfully moved to add ‘scientific’ to the already sanctioned ‘benevolent’ and ‘charitable’ purposes. Senator Tamblin objected that ‘[with] one single amendment, extending its provisions to political societies, any manner of association might become incorporated—a theatre, literary or sewing society, manual labor school, of anything of the kind’. But Senator Fuller, upon hearing that, successfully moved to add ‘and other societies’ to the title of the bill. Although Senator Fine later sought to recommit the bill ‘to amend it in such a way that the incorporation of infidel and immoral associations, under the name of Fourierism, &c, should be prevented’, no such safeguard was enacted beyond a requirement that a state Supreme Court justice consent in writing to each incorporation. Nor did Senator Hawley's motion to create two general acts—one for charitable and benevolent societies and another for literary and scientific associations—find favor. In the end, Senator Fine delivered a minority report against the passage of any general law for this purpose, on account of its great liability to abuse, and, with three of his fellow Senators, dissented from the nineteenmember majority on the final vote. Albany Evening Journal, 4 Feb., 4. 9 Mar. 1848.

106. 3 Sandf. 351 (1849).

107. 2 Sandf. Ch. 46 (N.Y., 1844)

108. 3 Sandf. at 366.

109. Ibid. at 369.

110. Ibid. at 370.

111. Ibid. at 372.

112. 9 Barb. 324 (N.Y., 1850).

113. 8 N.Y. 525 (1853).

114. Ibid. at 527.

115. Ibid. at 547.

116. Ibid. at 548.

117. Ibid.

118. 58 U.S. (17 How.) 369 (1854).

119. Ibid. at 395–396.

120. 14 N.Y. 380 (1856). See also Matter of N.Y. Protestant Episcopal School, 31 N.Y. 574 (1864); Hornbeck v. American Bible Society; 2 Sandf. Ch. 133 (N.Y., 1844); Banks v. Phelan, 4 Barb. 80 (N.Y., 1848); Manice v. Manice, 43 N.Y. 303 (1871).

121. 14 N.Y. at 381. Although no question existed as to the identity of the missionary society or its charitable purposes, the bequest failed because of the possibility that the fund could be misused, perhaps by appropriation ‘to the establishment of a gaming-house or any other immoral purpose’. Ibid. at 385. This possibility existed, at least asa matter of logic, for two reasons. First, there was no beneficiary who could require the Society to execute its trust. Second, the Society itself was not limited to charitable purposes as a matter of law, because it was not a legal person and thus was not subject to legal regulation as to the nature of its activities.

122. 3 Edw. 79 (N.Y., 1837).

123. 14 N.Y. at 387–388.

124. Ibid. at 403.

125. Ibid. at 407.

126. Ibid. at 406.

127. Ibid. at 408.

128. Ibid. at 408–409.

129. Ibid. at 412.

130. 23 N.Y. 366 (1861). Sec also Leonard v. Burr, 18 N.Y. 96 (1858).

131. 3 Sandf. 351, 375–376 (1849).

132. 14 N.Y. at 377.

133. Ibid. at 390–391. The Downing court noted that the members of the unincorporated associations ‘were a fluctuating body unknown to the law, irresponsible to the courts, and incapable of receiving a gift even for a purpose which the law may denominate charitable’. Ibid. at 383.

134. 23 N.Y. 69 (1861).

135. 23 N.Y. 298 (1861) (Comstock, C.J.)

136. Ibid. at 302–303.

137. Kent, James, Commentaries on American Law (New York, 2d ed. 1832) iv, 508Google Scholar.

138. 33 N.Y. 97 (1865). See also Rose v. Rose, 4 Abb. Ct. of Appeal Decis. 108 (1863) (Wright, J.).

139. 34 N.Y. 584 (1866). In Bascom, a resident of New York made a bequest to five persons, to be named as trustees by the Justices of the Vermont Supreme Court, for the purpose of establishing an institution for the education of women at Middlebury, Vermont. Theodore Dwight, the distinguished Professor of Law at Columbia University, argued the case before the Court of Appeals on behalf of the Middlebury trustees. See Dictionary of American Biography (1930) v, 571–573.

The Court of Appeals held that the trust failed for three reasons: (1) the repeal of the Statute of Elizabeth in 1788, (2) the enactment of the Revised Statutes of 1830, which specifically abolished all trusts and uses not enumerated therein, and (3) a public policy prohibiting testators from devoting property to charitable purposes except those sanctioned by the legislature through the grant of a corporate charter, either by special statute or by compliance with the general incorporation laws.

140. 33 N.Y. at 98.

141. Ibid. at 102.

142. Ibid. at 111.

143. Ibid. at 115. The Court further stated: ‘It was important … that the property of the state should not be largely withdrawn from general, and devoted to special, uses, even though the latter was … setting on foot truly benevolent schemes for ameliorating social evil; but it was of the last importance … that such property should not be withdrawn … for promoting objects public in their nature, unsanctioned by the legislative power, and which may be in themselves the offspring of the grossest ignorance, caprice and folly’. Ibid.

144. 34 N.Y. at 612–613. Compare Burrill v. Boardman, 43 N.Y. 254, 263 (1871), with Holmes v. Mead, 52 N.Y. 332 (1873).

145. See e.g., Holmes v. Mead, 52 N.Y. 332 (1873); Wetmore v. Parker, 52 N.Y. 450, 458 (1873) (‘[t]he mortmain policy of this state is very simple, and is contained in each charter creating a charitable corporation’); Stephenson v. Short, 92 N.Y. 433 (1883) (two month limit applied regardless of degree of consanguinity of surviving kindred); In re McGraw's Estate, 111 N.Y. 56 (1888) (bequest invalid because university would exceed endowment limit provided in charter). Cf. Hollis v. Drew Theological Seminary, 96 N.Y. 166 (1884); In re Prime's Estate, 136 N.Y. 347 (1893). See also Cottman v. Grace, 112 N.Y. 299 (1899).

146. Holland v. Alcock, 108 N.Y. 312 (1888).

147. See, e.g., c.337, Laws of 1880. Many of the laws enacted during this period were not ‘special’ acts, but general acts pertaining to particular types of charitable endeavors. For instance, many general laws were enacted pertaining to the organization of cemetary assocations. Similarly, a large number of laws enacted during this period pertained to religious organizations, and many of them appear to be designed to extend to particular sects the benefits accorded by general law, to which they might not otherwise be entitled because of doctrinal impediments to compliance with the organizational requirements of the general law.

148. c.497, Laws of 1890; c.553; Laws of 1890.

149. c.360, Laws of 1860.

150. For instance, it was not until 1872 that trustees and directors of charitable corporations generally were prohibited from receiving salaries or otherwise benefitting from their offices. See c.104, Laws of 1872. It was not until 1882 that the incorporation of colleges and universities was made subject to the approval of the regents of the state university (see c.367, Laws of 1882), and only in 1884 did the legislature enact a law requiring charitable corporations to signify by resolution the financial institution in which their funds would be deposited. See c.433, Laws of 1884.

151. Proceedings and Debates of the Constitutional Convention of the State of New York Held in 1867 and 1868 in the City of Albany iv, 2710, 3181 (1868Google Scholar). It is interesting to note that a heated debate concerning the desirability of perpetual charitable trusts was being waged in England at about the same time. See Sir W. Page Wood Charitable Trusts, 1859 Transactions of National Ass'n for Promotion of Social Science 184, 189; 13 Law Magazine & Review 311 (1862Google Scholar); 10 Solicitors J. & Rep. 23 (1865); Bunting, Percy W., Perpetual Charitable Trusts’, 1866 Transactions of National Ass'n for Promotion of Social Science 195, 199Google Scholar.

152. Proceedings and Debates of the Constitutional Convention of the State of New York held in 1867 and 1868 in the City of Albany iv, 3020, (1868Google Scholar).

153. Ibid. at 3181.

154. C.2, Laws of 1861.

155. C. 585, Laws of 1865. See also In re McGraw's Estate, 111 N.Y. 66 (1888) (Cornell University was held incompetent to take a bequest exceeding $3 million because the University's charter limited its total holdings to $3 million).

156. Proceedings and Debates of the Constitutional Convention of the State of New York Held in 1867 and 1868 in the City of Albany iv, 3182 (1868Google Scholar).

157. Ibid.

158. Lincoln, supra note 98, ii, 372–373.

159. Ibid. at 391.

160. Ibid.

161. Ibid. at 392.

162. Proceedings and Debates of the Constitutional Convention of the State of New York Held in the City of Albany, 1867 and 1868, iv, 2719 (1868Google Scholar).

163. Ibid. at 2721.

164. Ibid. at 2722.

165. Ibid.

166. Ibid. at 2723.

167. Ibid. at 2723–2724.

168. Thorpe, supra note 31, v, 2693 (1909).

169. C. 487, Laws of 1853. §3.

170. C. 58, Laws of 1861. §1.

171. C. 104, Laws of 1872. §1.

172. C. 419, Laws of 1864. §1.

173. C. 487, Laws of 1853. §7.

174. C. 428, Laws of 1881. §1.

175. Chamberlain v. Chamberlain, 43 N.Y. 424 (1871).

176. Genesee College v. Dodge, 26 N.Y. 213 (1863).

177. 46 N.Y. 477 (1871).

178. Ibid. at 480.

179. Tilden apparently drafted the will himself. In his biography of Elihu Root, Jessup reports that Andrew Carnegie showed Root a draft will that Carnegie had prepared, in which he intended to establish a testamentary charitable trust to which most of his estate would be devoted. Root counselled against that course of action, and in favor of establishing a charitable corporation during Carnegie's lifetime, noting ‘that even that great lawyer, Samuel J. Tilden, in drawing his own will, had set up a trust which the courts held to be invalid’. Jessup, Phillip C., Elihu Root. 2 vols. (New York 1938) ii, 491Google Scholar.

180. See Tilden v. Green, 130 N.Y. 29, 44 (1891).

181. Ibid. at 44–45.

182. C. 85, Laws of 1887.

183. Tilden v. Green, 130 N.Y. 29 (1891).

184. Note, 31 Am. L. Reg. (n.s.) (1891).

185. Ames, James Barr, ‘The Failure of the “Tilden Trust”‘, 5 Harvard Law Review 389, 391 (1891Google Scholar).

186. 130 N.Y. at 45, 64.

187. Ibid. at 65.

188. Ibid. at 47.

189. Ibid. at 52.

190. c.701, Laws of 1893.

191. §1, c.701. Laws of 1893.

192. c.292, Laws of 1901; c.45, 52, Laws of 1909.

193. Thus, absolute testamentary gifts to unincorporated charitable associations, which were valid in most jurisdictions, remained invalid in New York even after enactment of the Tilden Act. See, e.g., Underhill v. Wood, 65 N.Y. Supp. 1105 (1900); Washburn v. Acorte, 131 N.Y. Supp. 936 (1911); In re Gray, 142 N.Y. Supp. 1067 (1931).

194. James Barr Ames, supra note 183 at 389.

195. Holland v. Alcock, 108 N.Y. (1888) at 337.