foreigners have settled within the territories belonging to the Company; that can mean nothing else than that they have become residents, and if so, purchasers and owners of houses and lands. The charter under 13 Geo. 3, c. 63, is, in fact, the first introduction of English laws into the East Indies; but it is chiefly for the purpose of establishing courts of justice, that that charter was granted, and nothing is said in it respecting the special introduction of any particular branch of the laws of this country. It provides, moreover, that such courts shall exist only so long as the Company shall continue in possession of their territorial acquisitions. By the 38 Regulation of 1793, s. 3, it is provided, that "no European, of whatever nation or description, shall purchase real, or occupy, directly or indirectly, any land out of the limits of the town of Calcutta, without the sanction of the Governor-general in Council; " now, if an alien could not hold lands before the Regulation, what necessity was there for it?

The Act of the 9 Geo. 4, c. 33, which is known as Mr. Ferguson's Act, and which makes real property in the possession of Europeans, and others, not being Mahomedans or Gentoos, assets for the payment of simple contract debts, affords the strongest argument in favour of the appellants; for the strained construction which has been attempted to be given to the word "others," as meaning other European aliens who have acquired letters of denization, and for which the counsel for the Crown are indebted to the suggestion of the Court, can never be supported. According to the English law of alienage, an alien cannot die seized or entitled; but the words of the Act are, "shall die seized or entitled;" there is nothing in the

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Act to distinguish any of the various denominations of residents in India, not being Europeans, Mahomedans, or Gentoos, all of whom are included under the words "others," Parsee, Armenians, Burmese, Frenchmen, Chinese, &c.

With respect to the Act of Henry 8, cited by the Solicitor-general, that is strongly in my favour, for the words there used are, "within the realm, or any other of the King's dominions;" now this is a legislative recognition that the Colonies are not part of the kingdom, but are other dominions; and Blackstone says, respecting those territories which belong to the Crown, but which are no part of the kingdom, "the common law of England has no allowance, they being no part of the mother country, but distinct, though dependant dominions' (a); the law of alienage, therefore, could not prevail in them at the time of passing the Act. The statutes 13 Geo. 2, c. 7, and 2 Geo. 3, c. 14 & 25, only prove that doubts existed with regard to the law of alienage in our American colonies, and were passed to encourage foreigners to make loans, by providing special and extraordinary means for their security. The Solicitor-general's argument, that these Acts, either directly or indirectly, prove that aliens could not hold lands in our colonies, is not supported by the extraordinary remedies there given. The argument of the Attorney-general is, that aliens cannot hold lands in India, because they have no inheritable blood, they cannot therefore transmit them; but that is no ground of objection; a bastard in this country has no inheritable blood, yet no one doubts but that, if seized in fee, he can transmit his estate by Will. In what respect does the condition of General Martin, an (a) 1 vol. 108.

alien by birth, but admitted and declared by the decree of the Court to be entitled to hold lands in India, and devising the same by Will, differ? Against the finding of the Court no question was raised, and it cannot now, as an afterthought, be impeached. General Martin must be presumed to have been legally entitled, and to have acquired a licence to hold lands in pursuance of the Regulations.

II. With regard to establishment of the College at Lucknow. The rule of the Court of Chancery here is, that it does not interfere in the execution of a foreign charity; and the doctrine of Cypres does not apply to such cases. The Master, after a second reference, has found, that the Supreme Court cannot carry that part of the testator's Will into effect; that finding is confirmed, and a decree made thereon. That, therefore, is, in effect, a declaration made by the Court, that the charity cannot be established; and any new inquiry is inconsistent with that decree.-Morgan v. Evans (b). But, suppose it otherwise, how can the Court give effect to the charity? Upon the further report obtained, the Master finds, that the Government is willing to receive and apply such sums as the Court shall decide applicable to the charity. In the first place, that is not a finding that the Government can give effect to the charity; and in the next place, if it were, it is not such a mode of giving effect to it as the Court could or ought to sanction. What security can the Court have that the charity will ever be established, or, if established, will be permanent? The Supreme Court can exercise no control over the Governor-general; nor can the Government insure the existence of

(b) 8 Bli. N. S. 777, 797, 819.

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the charity for one moment, after it has parted
with the funds. The case of Attorney-General v.
Bishop of Chester was a prospective charity; the
fund was to be applied if a certain state of things
ever took place, and the Court necessarily took
possession of the fund to wait the happening of the
event contemplated. That is not the case here;
the college at Lucknow is not to be established up-
on a future contingent event, but it is directed to
be founded and established immediately. In the
Attorney-General v. Lepine (c), a reversionary
estate, bequeathed to the minister and church offi-
cers of a parish in Scotland, for charitable purposes,
was directed to be invested in stock in the name of
the Accountant-general, and the dividends to be
paid from time to time to the minister and church
officers of the parish. But the Courts of Scotland
having jurisdiction to administer the charity, an
order confirming the Master's report in approbation
of a scheme was reversed. In Attorney-General v.
Stephens (d), the Court proceeded only so far as to
appoint a trustee of a fund bequeathed to a foreign
charity; it did not pretend to appoint a scheme,
but simply upon the well known principle of the
Court, that a trust never fails for want of a trustee,
it appointed one in the room of the British Consul-
general and Treasurer of the British Contribution
Fund in Lisbon, whose office, at the decease of the
testator, no longer existed; that is wholly inappli-
cable to the case now before the Court. There is
no want of a trustee here, because, in fact, there is
no trust to execute. The King of Oude does not
claim the fund; there is no hand to pay it to; it
must, therefore, fall into the general fund of the
testator, and form part of the residue. The doc-
(c) 2 Swan. 181.
(d) 3 Myl. & K. 347.

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trine of Cypres cannot be applied to a foreign charity; the king's sign manual cannot operate beyond the jurisdiction of the king's courts; there is no principle or decision for such a proposition. EAST INDIA Upon the authority of the Attorney-General v. The Ironmongers' Company, the third part of the residue set apart for the college at Lucknow, if it does not go to the next-of-kin, must go to augment the several charities mentioned in the Will. The Mayor of Lyons would, in such case, be entitled to a moiety of such third.

LORD BROUGHAM :

The first, and by far the most important, question, brought before us in this case, is, whether or not the testator, being an alien, could devise his real property? in other words, whether or not that portion of the English law which incapacitates aliens from holding real estate to their own use, and transmitting it by descent or devise, extends to Calcutta, and to the Mofussil?

As the argument for its extending to Calcutta, is very much stronger than that for its extending to the Mofussil, it may be well to consider the former in the first place.

It is agreed, on all hands, that a foreign settlement obtained in an inhabited country, by conquest, or by cession from another power, stands in a different relation to the present question, from a settlement made by colonizing, that is, peopling, an uninhabited country.

In the latter case it is said, that the subjects of the Crown carry with them the laws of England, there being, of course, no lex loci; in the former case it is allowed, that the law of the country continues until the Crown, or the Legislature changes