The conveyance of this estate is made to the grantees, Samuel Winsor and John Dyer, expressly in trust, and for a definite purpose, viz.: for the purpose of erecting and maintaining thereon a meeting house, for carrying on the public worship of God, after the modes, ways, rules, and establishments of a certain sect of Christians, holding a certain faith, stated in the deed; and for the use of (as expressed in the deed) the present society assembling there under the Rev. Samuel Winsor, (one of the grantees,) and for the use of any other society which may succeed them, forever, holding the same principles. The deed clearly states the objects, and the property. The way in *Page 259 which the property is to go is clearly pointed out. Where these all exist, it is said, a trust is created. If valid, a court of equity will execute it. But against the validity of this trust, it is objected, that it is against the provisions of the act of 9 George II., Ch. 36, which declares, that no land shall be given for, or charged with, any charitable use, unless by deed executed twelve months, at least, before the death of the grantor, enrolled in chancery within six months after its execution, and containing no revocation clause, or agreement for the benefit of the grantor, or any other person. It is claimed, that this statute was in force here, in 1775, when this deed was executed; and this is claimed, upon the language of the second section of an act contained in the Digest of 1767, that in all actions, c., where there is no particular law of the colony, or act of Parliament introduced for the decision or determination of the same, there, and in such case, the laws of England shall be put in force for the decision and determination of the same. In the year 1700, an act was passed upon this subject, embodying substantially the provisions of this section, except that it omitted the words, — "or act of Parliament introduced," — and declaring only, that when there was no particular law of the colony to determine a case, "the laws of England should be put in force" for that purpose. This act was passed before the formal introduction of any English statutes, and remained unaltered until after the colonial legislature formally declared, in 1750, certain enumerated statutes of England and Great Britain to be in force here. The act of 1700 was never understood as having introduced any English statute. This is quite evident from the provisions of the first section of the act of 1750. It provides, that all the courts of the colony shall be held and governed by the statutes, laws, and ordinances of this colony, and such statutes of Parliament as are hereinafter mentioned, that is to say, — enumerating them; "all and every of which" are declared to be "in full force." This enumeration included many acts of Parliament of England, — many of the statutes enacted after the union with Scotland, and one statutes passed in the reign of George II.; but did not include the act of 9 George II., Ch. 36. Had the legislature supposed that the statutes of Great Britain, generally, had been put in force here by the act of 1700, which is *Page 260 the second section of this act, the enumeration in the first section would have been entirely unnecessary, and out of place.
There was no reason for the introduction here of this particular act of 9 Geo. II. It was not one of those statutes which could be held to extend to the colonies by its own force, which colonists may be presumed to carry with them to their new settlements. It was made after the planting of this colony, some hundred years. No act, says Lord Mansfield, made after a colony is planted, can be construed to extend to it, without express words, showing the intention of the legislature that it should.Rex v. Vaughan, 4 Burr. 2500. But it is not an act which was intended to apply to the colonies, whether planted before or after its enactment. Its policy is wholly English, as shown by its recitals, and both by what it forbids, and by what it permits. It begins by referring to the ancient laws against alienations in mortmain, originating in causes which never existed in the colonies. It recites, that the public mischief had lately greatly increased, meaning in England only; for there is no evidence that in the colonies devises to charitable uses had ever prevailed to an inconvenient extent, or in the 9th year of George II., had alarmingly, or to any extent, increased. It is wholly English in its exemptions, permitting such devises to the two English universities and to three great English schools; and finally, with respect to alienations inter vivos, which it regulated, it requires for their validity, that they should be enrolled in His Majesty's High Court of Chancery. AttorneyGeneral v. Stewart, 2 Mer. 143; Perin et al. v. Carey etal. 24 How. 499, 500. Considering the policy of this act, and that it had no application to us, it was not likely that it would be introduced.
The statutes were introduced, not in 1767, but in 1750. The memorial, which furnished the occasion upon which they were declared to be in force here, shows, that the act of 1700 had never been regarded as introducing acts of Parliament generally. That memorial was from the leading members of the bar of that day, of which the attorney general was one. It stated that the superior court of the colony had lately decided, that the statute laws of Great Britain were not in force, except such as were introduced by some law of the colony, *Page 261 though the courts, in all times before, had admitted such of them as related to the common law to be in force, and had adjudged upon them as such. The memorialists assume, that notwithstanding the act of 1700, there had been, down to that time, no colonial act introducing any statutes as such; but that there had been no occasion for any such act, while those statutes which related to the common law were adjudged to be in force. The colonists brought with them the common law of England, as it existed at the time of their colonization, and as it had, down to that time, been modified by any statute of Parliament. It was their birthright, in so far as that law was applicable to their circumstances here, and so far, was it presumed to be in force here; and for the same reason were those ancient English statutes presumed to be in force. But the matter of complaint was, that even those which related to, and had become part of the common law of England, had been declared not to be the law of the colony; and the memorialists ask the General Assembly to restore that class of acts of Parliament, now excluded by the late judgment of the courts.
This memorial was presented at the October session, 1749. The action of the General Assembly upon it shows, also, as the memorial itself shows, that neither did the act of 1700, nor did any other affect to introduce any statute which was not understood to be part of the laws of England, which were the birthright of the colonists. The General Assembly assume the decision of the court to have been, that the statutes of that part of Great Britain, formerly called England, were not in force, though such of the said statutes as related to the common law had always theretofore been admitted by all the courts to have been in force; so that there was no occasion for any act for their formal introduction. They accept the reason of the memorialists why there was no such act. In order to remedy the evil complained of, the memorialists were appointed a committee to prepare a bill for introducing "such of the statutes of England as are agreeable to the constitution." This would restore what the memorialists called "the exiled statutes," and which they represent, and the Assembly assume, as of absolute necessity to law proceedings. The committee are directed to do more than merely *Page 262 to restore such statutes, and formally to introduce all such as might be agreeable to the constitution, whether they were enacted by Parliament before, or after the settlement here. We may infer from the act reported by the committee, containing, as it does, acts of Parliament enacted after the union, as well as before, and from the adoption of that report, that the design was to declare and settle, what statutes of Great Britain should thenceforth be in force in this colony. It was not intended, however, to introduce any act which was not agreeable to the constitution; and for this reason, doubtless, it was, that though another statute passed in the reign of George II., was among the statutes introduced, the act of 9 George II., Ch. 36, was not inserted.* *Page 263
It is objected, also, against the validity of this trust, that, inasmuch as we had a statute in relation to certain charitable uses, viz.; "for the relief of the poor and bringing up children to learning," a court of chancery cannot take jurisdiction over any others. It is conceded, however, that chancery jurisdiction over charities is not conferred, either here or in England, by statute, but existed prior to any statute upon this subject. It is true, that in England, as the counsel say, the court of chancery, though it assumed jurisdiction over charitable uses generally, prior to the statute of 43d Elizabeth, will not enforce or aid any trust for any indefinite purpose, not charitable within that statute; that is, which is not for some one of the purposes enumerated in it, or not coming within the purview and spirit of those enumerated. The reason for thus limiting the jurisdiction does not very clearly appear from the reported cases. It is better accounted for by the theory suggested by Mr. Justice McLean, in Wheeler v. Smith, 9 How. 55, where he says, "it rests upon the assumption that the enumeration included all the charities which existed at common law." It is difficult to understand, since the statute is not prohibitory, how it should restrain a jurisdiction, otherwise existing, merely because it provided a new mode of reaching the trusts enumerated. However that may be, all the charities enumerated, and perhaps more, did exist at common law. This may be safely assumed, and that they all existed here. Our act of 1721 enumerates two only. It does not prohibit others. It provides a jurisdiction to inquire into the abuses of these, and it is quite too much to assume, that it designed to enumerate all those existing at law, — the common law of England. It might, with some reason, be presumed, from the long enumeration in the statute of Elizabeth, that it was intended to embrace in its provisions *Page 264 every use deemed charitable at law; but that reason must entirely fail in relation to our act.
If we may take the adjudications upon the statute of Elizabeth as applicable to ours, "considering the nature and constitution of the place and people here," and there is no reason why we should not, there is one bearing upon the matter before us, and upon a point in regard to which the statutes are identical. As our statute now stands amended in the Digest of 1844, it is, like that of Elizabeth, expressly retrospective. That of Elizabeth provides, that commissioners shall be awarded for breaches of trust, in respect to gifts "heretofore given,"c., or which shall be hereafter given; ours gives jurisdiction over such as "have been or shall be given," c., to and for the relief of the poor, or bringing up children to learning, or any other specific purpose. Upon the English statutes, trusts created long before its enactment, but which were invalid, have been held good under it. Smith v. Stowel, 1 Ch. Cas. 195; Flood's case and Collison's case, Hob. R. 136; 2 Story's Eq. Jurisp. § 1172; Rivet's case, Moore, 890; Attorney General v. Combe, 2 Ch. Cas. 18. If this trust, then, was not valid under the act of 1721, the statute, as it now is, looking back to all gifts and assignments theretofore made for the charities specified, or for any other specific purpose, would enable a court of equity to enforce this specific trust, though created before the amendment by which it was included. This, however, is a trust; which would be enforced in England under the statute of Elizabeth. It is one of those enumerated, — for supporting churches. It is good under that statute. It would have been valid before that statute, and we see no reason why it should not have been valid before the act of 1721; but if not, it is now, by the retrospective operation of the amended act.
It appears from the statement of facts in the case, that the society stated in the deed as assembling then under the Rev. Samuel Winsor, has long since ceased to hold the views specified in the deed, — have long ago removed from that neighborhood, and now occupy a house, built by themselves, at another place. It is objected against this trust, that it was one for the benefit of that society only, — the one then existing, — and for so long a time only as it should hold the views specified; and that, upon *Page 265 changing those views, the trust expired, and a use has resulted to the heirs at law of the grantor, she having deceased. In our view of the language of this trust, it was to extend the benefit of the gift, not merely to the society then existing, but if that ceased to exist, or ceased to be of the faith specified, then to any other society, holding the same faith, which might succeed them. The language is, to the use of the present society, c., "and such as may succeed them, forever, holding the same principles." We see no reason why, if such other society should now present themselves, and ask for a place of public worship on this estate, how the trustees could refuse its use for that purpose; and if not, then we must hold this to be a subsisting trust, — the legal estate remaining in the grantees or their heirs to preserve it. The resulting trust to the grantor or her heirs, to be executed by the statute, could not arise; and we have no occasion to consider, whether a conveyance has been made by the trustees against their duty, and in breach of their trust, to such heirs.
* The memorial referred to in the above opinion, and the resolution of the General Assembly, raising the committee to prepare the act enumerating the English statutes, and statutes of Great Britain, in force in the colony, were as follows: —
"The Humble Remonstrance and Memorial of the Subscribersshoweth: —
"That, whereas, the Honorable the Judges of the Superior Court of this Colony did, by their late judgments, determine that the statute laws of Great Britain were not in force in this government, except such as are introduced by some law of this Colony; and that, whereas, in all time heretofore, the courts of this Colony, both inferior and superior, have admitted such of the statutes of England as relate to the common law to be in force here, and have adjudged upon them as such, so that the government made no formal introduction of the Statutes of England: but they now being banished out of this Colony, and adjudged to be no part of our law, our laws are altogether imperfect, and scarcely any one law proceeding can be commenced or brought to issue.
"Wherefore, your memorialists humbly pray, that your Honors would be pleased to relieve this government in their present unhappy circumstances, either by calling home these exiled statutes, or making some others more advantageous to this government, and your memorialists, as in duty bound, shall ever pray.
J. APLIN. D. UPDIKE. J. HONEYMAN, JR. M. ROBINSON."
"Whereas, Messrs. Daniel Updike, James Honeyman, Jr., Mathew Robinson, and John Alpin, attorneys at law, by a memorial under their hands, have represented unto this Assembly, that the judges of the Superior Court of judicature, c., in this Colony, have, of late, judicially determined that the statutes of that part of Great Britain called England, are not in force in this government, except such as are introduced by some law of the Colony; and this notwithstanding that, in all time heretofore, the courts, throughout the Colony, both superior and inferior, have admitted such of the said statutes as relate to the common law, to be in force here, and have adjudged upon them as such, so that there has been no occasion of an act of the Assembly for the formal introduction of those statutes; but as the case now stands, the laws of this Colony are altogether imperfect and rarely any law proceeding can be commenced or brought to issue: —
"And now this Assembly, having taken the premises into consideration, do vote and resolve, and it is hereby voted and resolved, that the memorialists be, and they are, hereby constituted a committee to prepare a bill for introducing into this Colony such of the statutes of England as are agreeable to the constitution, and present the same to this Assembly at the next session."