the next of kin. There are instances of the enforcement of such general trusts by Chancery in behalf of charities as late as the reign of James I.' The Court of Chancery, in exercising jurisdiction over executors, adopted the rules prevailing in the Eccle siastical Courts.2

It is not necessary to show that the present jurisdiction of Chancery was then fully developed. It is enough if the germ existed from which these doctrines are properly derived. No subject of Chancery jurisdiction was then followed to its legitimate consequences. From what we possess we may infer the residue as an artist makes out a statue from an existing torso, or an anatomist constructs a perfect skeleton from the fossil remains of a part."

On the whole, the opinion of Mr. Hargrave must be acceded to, that the right to prove a will in the Ecclesiastical Court is exclusive; jurisdiction to enforce its provisions is concurrent with Chancery.'

The imperfect survey taken of this subject may lead to the conclusion that a more exhaustive research into the early authorities than was possible in the preparation of these articles, would show that no class of men have been more truly charitable than those rude men, as we are apt to term them, who lived in the middle ages. It has recently been observed by competent authority, that the objects of ancient bounty comprised every institu tion felt to be necessary or beneficial, or capable of relieving the public burdens. They included establishments for instruction, spiritual and secular; endowments to make and maintain causeways, roads and bridges; for assisting the people in the charge of fifteenths and other taxes; for providing arms for the general defence, hospitals for the cure of disease, and for contributing to the support of the poor in every form."4

T. W. D.

1 Tothill, 150-1. 6 Jac. 1.

2 Keily vs. Monck, 3 Ridgway P. C. 243; 1 Spence Eq. Jurisd. 582.

3 Hargrave's Law Tracts, 473.

4 Report of the Committee of the Society for the Amendment of the Law, 11th London Law Magazine, 305.

The later authorities have not been specially noticed, because, rom the character of these articles, it was mainly desirable to tate the results arrived at by historic investigation. For similar asons, local statutes have not been alluded to. Attention is vited to the very learned and elaborate argument of Hon. lexander W. Bradford, former Surrogate of the city and county New York, in the case of Rose vs. Rose, Supreme Court of New ork. Mr. Bradford's great acquaintance with the civil law gives s researches into the jurisdiction of the Ecclesiastical Courts, pecial value. See also the argument of Edward O. Parry, Esq., the case of the heirs of Stephen Girard against the City of hiladelphia, recently tried in the Court of Common Pleas, huylkill County, Pennsylvania. Mr. Parry claimed that where e devise or gift to a charity was in terms inalienable, so as to away from the Chancellor the power to order a sale in his scretion, it came within the policy of the law as to perpetuities, was void.

ke

The following are important legal decisions: Sonley vs. Clockkers' Co., 1 Brown Ch. Cas. 81; Incorporated Society vs. chards, 1 Drury & Warren 301; Will of Sarah Zane, Brightly's p. 346; Tappan vs. Deblois, 45 Maine 122; Baptist Association Hart, 4 Wheat. 1; Dutch Church vs. Mott, 7 Paige 80; illiams vs. Williams, 4 Selden 524; Fontain vs. Ravenel, 17 #. U. S. 369; Owens vs. Methodist Episcopal Church, 4 Kernan O; Beekman vs. Bonsor, 23 N. Y. (9 Smith) 298. The argument Mr. Noyes in this case, previously mentioned, will be found in Appendix to the volume, p. 575, et seq.

The investigation of this subject leads to the conclusion, that obscurity of the law should be removed by legislation. There disposition in England to place the subject on more satisfactory unds. There is an evident reaction against the policy of the rtmain Acts, which tended to discourage charitable donations. aluable report has recently been made by the Committee of the iety for promoting Amendments of the Law. The following suggestions were made by the Committee: 1. That hereafter and should be acquired by a charity, except so far as was

necessary for buildings and grounds. The residue of the property should be invested in government or other similar securities. 2. That no license to hold in mortmain should be necessary. 3. That the charity shall be subject to revision at the end of thirty years, and that, if necessary, a new declaration of trusts may be made by a Committee of Public Charities in the Privy Council, following, as near as may be, the original design. 4. That charities shall not be void for uncertainty, or on the ground of the pernicious nature of the objects expressed by the testator. These points are to be established by legislation. To these should be added, in our judgment: 5. That provision should be made, that persons having lawful claims upon a testator's bounty, shall not be disappointed of their reasonable expectations.

It is now time that a definite policy in respect to this subject should be fixed upon in this country. Charitable donations increase rapidly in number and importance. It may be predicted that they will hereafter be looked upon with augmented favor, and that we shall agree with the Law Amendment Committee, that charity cannot be too great, so long as heavy taxation is otherwise necessary to provide for the very objects on account of which the charitable donation is made. T. W. D.]

MINES-MARIPOSA GRANT.

The time has long since gone by when "cujùs est solum ejus est usque ad cœlum" defined the extent of the ownership of a land holder, as a maxim of universal acceptance. And regarding solum as the surface of the earth, the extent to which the owner might claim property in the opposite direction has in so many cases been limited to a crust of a few feet, beneath which other owners were operating within their own closes, limited and defined like those upon which the sun is accustomed to shine, that in some portions of our

1 London Law Magazine (1861), Vol. II. p. 305.

own country, as well as of England, an upper and a lower freehold in the same soil have come to be familiar estates to the law. Cases are numerous, of late years, where the surface-owners have had sharp struggles in restraining the mine-owners beneath them from weakening the supports upon which their houses rest, while it is no rare experience for a landowner to see the bottom of his well dropping out, or failing to hold the requisite supply of water, and in whole sections of the country the people upon the upper stratum of the earth must live in constant apprehension of finding themselves involuntary intruders upon those who are oiling and bringing up the hidden treasures of the lower regions. It is not our purpose, however, to discuss the subject of mines nd mining rights in general, but to confine ourselves to those of old and silver.

From a very early period these have been regarded by the common law of England as belonging to the crown, as a part of the Fura regalia, whether found in public lands or private estates. The question was examined at great length in the 10th Elizabeth, a case reported in Plowden, 310-340. The reasoning of Mr. Onslow, as counsel for the queen, in favor of this assumption (p. 15), states the following as one of the grounds, that "the comon law, which is founded upon reason, appropriates everything the persons whom it best suits: as, common and trivial things > the common people; things of more worth to persons in a higher nd superior class, and things most excellent to those persons who xcel all other; and because gold and silver are the most excelnt things which the soil contains, the law has appointed them is in reason it ought), to the person who is most excellent, and at is the king." And, passing from the land to the water, he nds that the king shall, for the same reason, "have whales and urgeons, taken in the sea or elsewhere within the realm," "s0 at the excellency of the king's person draws to it things of an [cellent nature." As many, now-a-days, in the light of the history the Tudors and the Stuarts, might not agree so readily in this ason for the law as in the fact that it was the law, it will be ough to state it as one of its settled dogmas: 1 Black. 294; 2

Co. Inst. 577. The existence of this right is recognised, together with his right of aliening the same, thereby showing that it was no part of the essential, inherent sovereignty of the king, in the charters granted by the crown to the early colonists of this country. In that of Massachusetts, in 1628, there was granted, among other things, "mines and minerals, as well royal mines of gold and silver, as other mines and minerals," the grantees yielding and paying to the crown one-fifth part of the ore of gold and silver which they might obtain. And a similar provision was contained in the Plymouth Charter, granted to Governor Bradford in 1629: 3 Dane. Ab. 137; Anc. Chart. of Mass. 1; Plym. Col. L., Brig. ham's ed. 21.

It is not known that any practical result ever came of these provisions. But at the time of the Revolution the states of New York and Pennsylvania asserted the prerogative as to mines which had originally been in the crown, as to the lands in the provinces; but in a case in Georgia, it was held that these mines belonged to the owner of the land within which they are found: Willard R. Est. 50; Dunlop's Stat. 90; 3 Kent 378, note. It is stated by counsel, in the argument of Boggs vs. Merced Co., after reciting the cessions of public territory to the general government by Massachusetts, New York, Connecticut, South Carolina, Virginia, and North Carolina, of a region known to be rich in a great variety of mines, that the government never had claimed mines on the land of individuals: 14 Col. 336. It is said that by the civil law mines within the boundary of a private grant originally belonged to the owner of the soil: 14 Col. 337; Coop. Just. 461. But Spain, in derogation of this right, seized upon mines of gold and silver, wherever situate, by royal ordinances, as a part of her jurs regalia, by way of eminent domain, thereby reaping the questionable benefit of the treasures of the American colonies.

These laws of Spain extended over California while it formed one of her provinces, and although the value of this right was not then understood, because the extent of these mineral deposits had not then been discovered, yet the principle of property in mines on the part of the state, as well as sovereignty over the territory.