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(Argued that under the true construction of the will, the heirs of Girard could not take even if the devise for the college should be set aside; because the city of Philadelphia would come in as residuary legatee; the income of the fund being applied, in such case, to "diminishing the burden of taxation," and other public objects specifically pointed out. This part of the argument is omitted, because the decision of the court is placed upon other grounds. Mr. Binney then proceeded to comment on the objections to the devise, which had been made by the counsel on the other side.)
The objection made by the counsel on the other side is twofold: first, that the city is incapable of taking a legal estate by devise; and second, that the trust is void, because the beneficiaries are too uncertain. The first point was not [**43] pressed, and is considered as abandoned. As to the second, this charity is as precise as any which has ever been established. The trust is to build upon a place specially marked out; the children are to be poor, born in Philadelphia, then New York, then New Orleans. The description is specific and limited. In England, a charity, however general, always succeeds; there is no case in which it has failed. The only question there is about its administration; whether by the chancellor in his ordinary jurisdiction, or under the sign manual of the crown. The statute 32, 34 Henry 8, which forbade devises to corporations in mortmain, never was in force in Pennsylvania. The settlers agreed in England upon the laws which should govern them.
White and Brockden's History of Laws, Appendix 18 says that wills, &c., in writing and attested should have the same force as to land that conveyances had. This was on 5th May, 1682. The same rule was established on the 7th December, 1682, if the will were proved in forty days. Same book, Appendix 4, chapter 45.
On the 1st January, 1693, this law was in force. The legislature requested the governor to declare what laws were in force, who complied [**44] and declared that this was, amongst others. Same book, Appendix 7, 8.
In 1683, a law restrained the testator, if he had a wife and child, from willing away more than one-third; but in 1693, the full power was restored. Same book, Appendix 9.
After a slight alteration, (see Appendix 12,) the statute of wills was passed in 1705, which was in force until girard's death. It declares that wills in writing, and attested, shall be good as conveyances. The power to make a will is general, and to devise to any one. If corporations, therefore, can take by deed, they can by devise.
The corporation has power to take. If the statutes of mortmain are in force, they do not intercept the grant on its way to the corporation; there must be an office found to escheat the property to the state. 7 Serg. and Rawle, 313; 14 Peters, 122; Shelford, 8.
The policy of the mortmain statutes of England has not been adopted in Pennsylvania. The act of 1791 (Purdon, 182, 183) forbids corporations from holding property "exceeding L 500 in income," but permits them to hold any quantity of unproductive land.
The statutes of mortmain do not extend to Pennsylvania. If they do, it is contrary to the English [**45] decisions about their colonies. 2 Merivale, 143; 2 Maddock's Ch. Pr. 61, note 62; 8 Wheat. 476.
If they had been considered as being in force, there would have been escheats under them; but none are found.
The rule prescribed by the court in 3 Binney, 597, was that where there was a Pennsylvania statute on the same subject with an English statute, the latter was not in force. But this could not be carried out universally, for the statute 4 Anne and the Pennsylvania law of 1714 were declared both to be in operation.
The city of Philadelphia has an unlimited power to acquire land. The charters of 1701 and 1789 both give it. 2 Smith's Laws, 462. The power is to hold to them and their successors for ever, or they can alienate it as a natural person can.
Has the city power to take in trust?
The old doctrine was that a corporation could not be seised to a use. Sugden on Uses, 10.
But it has been since settled that a corporation may be a trustee. If it receives a deed, the legal estate will pass, provided the statutes of mortmain do not prohibit it. If the trust is void, equity will decree a reconveyance; but this cannot be necessary, unless the legal estate had passed. And [**46] if a corporation is incapable of executing the trust, equity will appoint some person who is not. 1 Saunders on Uses, 346, 349; Willes on trustees, 31; Levin on Trusts, 10, 11; 2 Thomas's Co. Litt. 706, note; 1 Cruise's Digest, 403, tit. 12, Trust, chap. 1, sect. 89.
Also, that a corporation may be a trustee. 2 Vernon, 411; 2 Bro. Par. Ca. 370; 7 Bro. Par. Ca. 235.
Where a corporation abused a trust and was dismissed, see 3 Bro. Chan. Cas. 171, 371; 4 Vesey, 453; 2 Vesey, jun. 46; 1 Vesey, 467; 14 Vesey, 253; 12 Mass. Rep. 547; 17 Serg. and Rawle, 89; 3 Rawle, 170.
The cases in 12 Mass. Rep. 547 and 17 Serg. and Rawle, 89, may not appear at first to sustain the doctrine, but the cases are right. That of 3 Rawle, 170, is very much like the present, and establishes the doctrine, that if the trust is for the welfare of the corporation, it may take it.
The acts of the legislature of Pennsylvania of 24th March and 4th April, 1832, are strong indications of what the law is in that state. That of March (sect. 10, 11) gives the corporation power to carry out the trust; enacts that no road shall pass through the land, and gives power to appoint officers. Both acts acknowledge and assist [**47] the trust, and imply that the corporation had power to take it. This is evidence of an existing power. 4 Peters, 503.
The charter of Philadelphia, (page 73 of city ordinances,) in the 16th section, grants a general power to make laws for the welfare of the people.
The case in 1 Vesey, 534, does not warrant the inference drawn from it by the counsel on the opposite side.See as to this case Boyle on Charitable Uses, 84.
As to the uncertainty of the beneficiaries: --
It is an error to suppose that a trustee must take for beneficiaries known and established. Suppose a marriage settlement for life with power to devise. Where is the state beyond the life until the power is executed? It vests in no one. A charitable use in only a power of appointment, and the children, in this case, when named, have a good right to the use. So it is in churches. When a minister is elected, he takes the estate according to the foundation; and so also with schoolmasters, who have sometimes a freehold. Shelford, 762, 763, 765, 767, 730.
If the trustee will not nominate, chancery will. 3 P.W. 146; 3 Atkyns, 164.
The tenure of the cestui que use is fixed; the boys of merit are to remain in the [**48] college until they are from fourteen to eighteen years of age. They are easily ascertainable. It is true that no one has a claim until the appointment is made. But this is the case with many trusts of private property where the estate is uncertain until certain issue are born. Where there is a power to name some one of kin to take, a remote relation may be selected. 1 Atkyns, 469; 4 Russel, 292. A power to appoint amongst "poor relations" may be either a charity in the legal sense of the term, or an ordinary provision of kindness. 7 Vesey, jun. 436; 2 Atkyns, 328; 17 Vesey, jun. 371; 1 Shoales and Lefroy, 111; Boyle on Charities, 31 -- 34. The only difference between the two is that in the first case, it will last longer than in the other. A power of appointment is sometimes vested in particular persons from special confidence, and sometimes it passes to heirs. Charities are kept up for ever.
Uncertainty is indispensable to all charities. If any one has a right to claim by law, it ceases to be a charity.
Where did the favour with which charties are regarded, and the motive by which they are established, spring from? The doctrine is traced up to the civil law. But where [**49] did Justinian get these ideas? They came from Constantine, the first Christian emperor, and they can be traced up to a higher source than that -- the Bible. The Anglo-Saxons received all their principles from the same authority. Orphan-houses were exempted from taxation. Originally the injunction of the Bible was to "honour thy father and thy mother;" but the domestic affections are selfish, and if was reserved for Christianity to enjoin the duty of "loving they neighbour as thyself." The Jewish lawyer asked who his neighbour was, and it was hard to convince him that a Samaritan could be so. There was the same difficulty as now respecting the uncertainty of the beneficiary. The lesson of charity is taught too in the case of the woman who, in her humility, claimed only the crumbs that fell from the table, and in the beautiful parable of visiting the sick and the prisoner: "Inasmuch as ye have done it to the least of these, ye have done it unto me." Even in the older Jewish records, we find the same lesson of philanthropy taught where the sheaf is left for the unknown and unacknowledged stranger. It is the uncertainty of the person upon whom the benefit may fall that gives merit [**50] to the action. A legacy to a friend is no charity. The first trustee for a charity was St. Paul. The sick are always uncertain; and to all hospitals, the objection now made would apply.2 Domat. 169, title 2, sect. 3; 2 Vesey, 273; 1 vernon, 248; 7 Vesey, 76; 17 Vesey, 371, that it becomes a charity as soon as uncertainty begins. Ambler, 422; 5 Rawle, 151; manuscript case from Pennsylvania, not yet reported, that beneficial societies are not charities.
Mr. Binney then proceeded with his own argument, and stated the following points:
1.That such uses as those in Mr. Girard's will are good at the common law in England, which is the common law of Pennsylvania.
2. That the city being in possession of the trust, nothing more is necessary for them, as they want no remedy whether there would be one at common law or not.
3. That such trusts are entitled to protection in equity, upon the general principles of equity jurisdiction, which protects all lawful trusts whether there be a trustee or not.
4. That they in fact enjoyed this protection in chancery before the 43 Eliz. by the original jurisdiction of that court, and have had it ever since.
5. That 43 Eliz. is only an ancillary [**51] remedy, long disused in England from its inconvenience, and is supplied by chancery, not as an usurper on the statute, but as the rightful original tribunal for such trusts.
6. That whatever the 43 Eliz. imparted to the law of Charles, except the mere remedy by commission from the lord chancellor, is thoroughly adopted in Pennsylvania, together with the great body of the equity code of that kingdom.
7. That the law in Pennsylvania is the same as the law in all the other states except Virginia and Maryland.
1. Such uses were good at common law.
They can be traced up to an early period, anterior to Richard 2, and the principle upon which they are founded even up to the time of the Conquest. 4 Reeve, 80; Moore, 122. The principle of these charities is also engrafted upon the old English tenures. Co. Lit. 94 b; Littleton, sect. 132, 136, where provision was made that the soul of the donor should be prayed for. Co. Litt. 96 a.
The tenure was called "frankalmoign." There was another instance where 100 pence were to be distributed to 100 poor men on a certain day. Co. Litt. 96 b; 2 Inst. 456, 406. There were perpetual charities in trust. 6 Co. Rep. 2; Co. Litt. 149 a; Brooke's [**52] Abr. part 2, Tenure, 53. Some of the early statutes recognised them.
The stat. 17 Edward 2, chap. 12, passed in 1334, related to the Knights Templars; at the dissolution of the order, the lands were assigned to the Knights of St. John for the same godly uses to which they had been applied, viz.: relieving the poor, &c.
There arose a contest between religious houses and the king about mortmain, and afterwards about superstitious uses. Monastic houses were the conservators of public records and the sources of instruction.
15 Richard 28 chap. 5, was the last of the statutes of mortmain.Chap. 6 allowed spiritual corporations to hold the property of the church and the glebe, subject to making donations for the poor.
Henry 4, chap. 2, allowed the vicar to be endowed, &c.
2 Henry 5, chap. 5, recited that abuses existed in charities and ordered a commission of inquiry to reform them.
23 Henry 8, chap. 7, (see 4 Pickering, 239,) called the statute of mortmain, aimed a below at these charities. It was passed in 1531, and the king was married to Anna Boleyn in 1532.
27 Henry 8, chap. 25, was the first poor law of England
1 Edward 6, chap. 14, (5 Pickering, 267,) endeavoured to preserve [**53] some of the charities from destruction. Boyle, 263, note, refers to this statute, which required commissioners to execute charities for the benefit of the poor. See also stat. 2 Edward 6, (5 Pickering, 299;) stat. 1 and 2 Philip and Mary, chap. 8, (6 Pickering 234.) The monasteries were by this time put down and the charities destroyed.
Then came the statute 39 Elizabeth, chap. 5, from which the Pennsylvania act of 1791 is taken; this statute was continued in force until repealed by 9 George 2. From the circumstance that the charities were put down by the destruction of the monasteries arose the necessity of the 39 and 43 of Elizabeth, which intended to lessen the evil of pauperism by hunting up charities, but which established no new principle in the laws of England. 4 Inst. 66.
2 Gibson's Codex, 1155, where the statute of 39 Elizabeth is found. This last law is a general one, and covers a larger extent of ground than the 43 Elizabeth, chap. 4. Chapters 2 and 3 show the character of chap. 4. Chap. 2 is a poor-law, and so is chap. 3, for mariners.The 43 Elizabeth enumerates twenty-one charities, but the 39th comprehends all lawful ones. Hospitals were included in the latter [**54] but not in the former. The stat. 7 Jac. 1, chap. 3, has for its object to bind our poor boys. In Girard's case the boys must not only be poor, but orphans, a double merit.
There is a dictum of Lord Roslyn in 3 Vesey, jun. 726, in relation to a will being an appointment at common law; but the point decided in that case has nothing to do with the present.
But there is not a single case where the validity of a charitable use has been directly questioned at law; wherever the question came up, it was always incidentally.
The Year-Book of 38 Edward 3 forms the basis of Co. Litt. sect. 383. There was a condition subsequent, which, if violated, gave the heir a right to enter. What was then called a condition is now called a trust. Sugden on Powers, 121; Perkins, 563; Anderson's Rep. 43, 108; 3 Dyer, 255 d, same in Jenkins, 6.
The last case mentioned occurred in the 8 and 9 Elizabeth, and is the Trinity College case. The question was, whether a devise to the college, which was not a spiritual corporation, was good, and it was ruled to be so.
The Skinner's case occurred in 24 and 25 Elizabeth, (Moore, 129,) where the use was to pray for the soul of the donor. So much of the use as [**55] was esteemed superstitious was set aside, and the rest confirmed. See also Moore, 594, (or same case in Popham, 6,) where the heir of the executor who had a trust-estate recovered from the heir of the donor.
In Porter's case, 1 Co. Rep. 22, (92,) the question was not raised whether a charitable use was good at common law.
We see from these cases what the condition of England was about the time of 34 Elizabeth. The statute 23 Henry 8 did not go into effect for twenty yars. Duke, 360; 4 Co. Rep. 116; 8 Co. Rep. 130.
All these cases sustained charities for the poor and were anterior to 39 Elizabeth.
This court has affirmed the validity of charities at common law. A dedication to pious uses is sustainable only upon that ground. 6 Peters, 498, 431; 12 Wheat. 582; 10 Peters, 712; 2 Peters, 256; 9 Cranch, 212; 4 Peters, 487; 4 Serg. and Rawle, 212.
The common law of England is in force in Pennsylvania. In the case of the Bush Hill estate it was ruled that the burden of proof is on him who affirms that any particular part of the common law is not so in force. 9 Serg. and Rawle, 307
2. The city is in possession, and wants no remedy. If he use is good, the owner of the legal estate [**56] cannot recover. 2 Dowl. and Ryland, 523; 5 Maddock, 529, (429.)
But it is said that the use is not good because the proposed college is unchristian. The bill filed in the cause makes no such objection. If zeal for the promotion of religion were the motive of the complainants, it would have been better to have joined with us in asking the state to cut off the obnoxious clause than to use the plea in stealing away the bread of orphans. We are not here to defend Mr. Girard's religious belief, whatever it was. During his life he exhibited his philanthropy at a perilous moment. When the yellow fever burst upon Philadelphia in 1794, almost every one fled, regardless of his property. Girard walked the wards of hospitals, not subdued by the groans of the dying or deterred by the fear of death to himself. All that he had was freely given to alleviate the wretched sufferers. More charitable even than the good Samaritan, he had not only poured oil upon their wounds, but stood by them to the last. The difficulties that surrounded his plan of a college were great. His desire was to include the orphan poor of all sects, Jews as well as Christians, and those who had no religion at all. [**57] He might have placed it under the protection of some one religious denomination, but then it would have become a religious establishment, and met with opposition from other quarters. If all acts were to be admitted, what could he do other than what he did? If any clergyman was to be admitted, he would of course teach the doctrines of his own church. No two sects would agree. Some would adopt one part of the Bible, some another. If they agreed as to what was to be left out as apocryphal, they would differ about the translation of the rest. The Protestant would not receive the Douay Bible. See the difficulties that exist in New York about the introduction of the Bible as a school-book. Girard did what was in conformity with law, and often done practically. He had to abandon his scheme or prevent discord by adopting the plan which he followed. The purest principles of morality are to be taught. Where are they found? Whoever searches for them must go to the source from which a Christian man derives his faith -- the Bible. It is the therefore affirmatively recommended, and in such a way as to preserve the sacred rights of conscience. No one can say that Girard was a deist. [**58] He has not said a word against Christianity. In the Blucher school in Liverpool there are no preachers. There is no chaplain in the University of virginia. By excluding preachers, Girard did not mean to reflect upon Christianity. It is true they cannot hold office. But the Constitution of New York excludes clergymen from offices, civil or military. If the situation of a schoolmaster is an office, then a clergyman cannot be a public teacher. Girard only says that laymen must be instructors, and why cannot they teach religion as well as science? Sunday-schools are not prohibited. It is said by the opposite counsel that these poor victims are cast into a prison and shut up for the sake of an experiment. But there is no prohibition against their going out to church -- to as many churches as their friends choose to take them to. All that is done by the will is to secure the college from controversy. It is optional with the friends of the orphans whether to permit them to go there or not. Cannot the trustees erect a hospital without the walls where the sick can be sent and have the services of clergymen when necessary? But religion can be taught in the college itself. What, [**59] for example, is there to prevent "Paley's Evidences" from being used as a school-book?
The law of Pennsylvania is not infringed.
By the 3 sect. of the 3 art. of the constitution of Pennsylvania, "all men have a right to worship according to their conscience." If worship were prohibited in the college, (which it is not,) it would not be against law. The constitution says that no man is disqualified who acknowledges the existence of God and believes in a future state of rewards and punishments. Christianity is a part of the law, so that blasphemy can be punished, but not for the purpose of invading the conscience of other persons. But, at all events, the college is not yet built nor the regulation enforced. It is too soon now to set it aside. The city is in possession of the property, and so it must remain. The administration of the charity is a matter for the courts of Pennsylvania exclusively.
3. That such trusts are entitled to protection in equity upon the general principal [**60] of equity jurisdiction, which protects all lawful trusts whether there be a trustee or not.
In England the power of the king as parens patriae is delegated to the Court of Chancery. Where there are no trustees or objects of the charity, it is then administered according to the pleasure of the king. See this investigated i Sotry's Equity, 404. The ancient rule, says Coke, is good; the authority of chancery is plentiful, and the court will not let a trust fail for want of a trustee. Co. Litt. 290, note 1; Co. Litt. 113; Wilmot's Notes, 21 -- 24; 2 Eq. Ca. Abr. 198; 1 Vesey, jun. 475; 2 Story on Equity, 320.
The court did not derive this power from the statute, but from its jurisdiction over trusts. 2 Story, 430; 2 Milne and Keen, 581.
Equity is a part of the law of Pennsylvania, and this is a branch of equity powers. The Supreme Court has the powers of a court of chancery. 1 Dallas, 211, 213, 214; 1 Binney, 217.
In Pennsylvania, specific performance is obtained at law by cautionary verdicts. 3 Serg. and Rawle, 484; Anderson, 392.
4. Such trusts in fact enjoyed protection in chancery before the 43 Elizabeth, by the original jurisdiction of that court, and have had it ever [**61] sicne. Duke, 135, 154, 242, 380, 519, 644; 2 Gibson's Codex, 1158, note 7; 1 Chan. Ca. 157; 2 Levins, 167; 2 P.W. 119; 2 Vernon, 342; 3 Atkyns, 165; 2 Vesey, 327, 425; Wilmot's Notes, 24; 1 Blythe, 312, 334, 342, 346, 347, 357, 358, 67, 61.
There is a dictum of Lord Rosslyn that it did not appear that chancery had such jurisdiction before the statute of Elizabeth; but he has been misreported, or if he said so, he is not sustained by the old authorities. Tothill, 58; Choice Cases in Chancery, 155, in 34th of Elizabeth; Duke, 163.
There was a decree made in 24 of Elizabeth before the statute and upon the judicial power of chancery. It related to a deed of bargain and sale, which was not enrolled and did not pass the land. Duke, 131, 138, 359 -- 361; 1 Milne and Russell, 376.
The book lately published in England by the Record Commissioners, furnishes numerous instances of the exercise of this chancery jurisdiction anterior to the statute of Elizabeth. n1
[footnote omitted]
[**62]
If this part of the common law be not in force in Pennsylvania, the complainants must prove it. If they think so, why do they not resort to the local courts? It can be shown, however, that Pennsylvania has actually adopted the laws that govern charitable uses.
To begin with the charter. "The laws for governing property are the same as those of England." 5 Smith, app. 407, sect. 5, 6; Amended Charter, 1701, app. 413; Act of 1718, 1 Smith, 105; Act of 1777, 1 Smith, 429, sect. 2; 1 Dallas, 67, where it is said as the opinion of the court, "that the common law has always been in force." 1 Dallas, 73, 211; 3 Serg. and Rawle, 578, (378;) 1 Binney, 519, (579;) 4 Binney, 77.
The act of 1730 authorizes persons to hold land for charitable uses. This is said to be an enabling act: but it is upon a different principle from the English statutes which are intended to aid, in some measure, a religion not fully tolerated by law. But in Pennsylvania there is universal toleration, and all sects stand upon equal ground. In England, the mass is held to be superstitious. Boyle, 242.
The statute 23 Henry 8, a mortmain act, avoided deeds "for superstitious uses." But what were deemed to be so [**63] in England, are not held to be so in Pennsylvania. So a statute of Henry 8, prohibited gifts to Catholics.
In 1548, 2 and 3 Edward 6, chap. 1, the act of uniformity establishing the church, directed all ministers to observe the mode therein pointed out. The Book of Common Prayer was thus legalized.
1 Mary, session 2, chap. 2, repealed the above.
1 Elizabeth, chap. 2, re-established the act of Edward, and extended to the people the mandate to use the Book of Common Prayer.
This was again repealed in the time of the Commonwealth.
The 13 and 14 Charles 2, chap. 14, was another uniformity act; and this was the state of the laws relating to religion when the charter of Pennsylvania was granted in March, 1681.
Gifts to Catholic congregations were void. Moore, 784, cited in Boyle, 265; 1 Salk. 162; 1 Eq. Ca. Abr. 96.
When the statutes of conformity were in force all gifts contrary to them were void; and this is the origin of the doctrine of cy-pres. 2 Vernon, 266.
In 1688, 1 W. and M. chap. 18, toleration was extended to all who would sign the thirty-nine articles with some exceptions. This act is all that now supports a use in favour of dissenters. 2 Vesey, 273, 275; 2 Eq. Ca. [**64] Abr. 193; 3 P.W. 144, O44; 1 Vesey, 225; 3 Merivale, 409. See also 11 W. and Mary, chap. 4, sec. 3, in which the toleration act is extended to the colonies.
There is not a word in the charter respecting toleration of any religion. Sect. 22 protects the church of England by saying that preachers sent by the Bishop of London may reside in the province.
The stat. 5 Anne, chap. 5, sect. 8, in 1706 secured the rights of the Church of England, as established in that county and the territories thereunto belonging. From the commencement of the reign of Anne to 1712 various disputes occurred between the colonists and the crown and governor respecting recognition of affirmation; the right was asserted by the legislature for the this time in 1710. Wise and Brockden, app. 2, p. 43, 46, 50; 1 Votes of Assembly, part 2, p. 130; Proceedings of Council, 517.
In 1712, the act of Assembly was passed permitting religious societies to purchase ground, &c., and declaring that gifts should go according to the intentions of the donors. The Assembly remembered Baxter's case, and intended to prohibit the doctrine of cy-pres. Whether dissenters were tolerated was discussed till 1755. Smith's History [**65] of New York, chap. 4, p. 213, 255, 257.
By the 8 George 1, chap. 6, Quakers were allowed to affirm.Various occurrences took place between 1719 and 1730 when the act of that year was passed, narrowing the ground of prior acts. In 1730, in the case of Christ Church, an opinion was given by counsel recognising the law of charitable uses.
In remingtor v. The Methodist Church, this act was construed and a trust for the general Methodist Church held not to be good, because it was not for the benefit of citizens of Pennsylvania.
In 1776, the first constitution of Pennsylvania, (Smith, 430,) brought charitable uses under the protection of the fundamental law. Sect. 45 says all religious societies and bodies of men for advancement of learning or good and pious uses shall be encouraged and protected in their property, &c. No act of incorporation was necessary, because it says, "united or incorporated" for "learning" as well as "religion." The people had been struggling for seventy-six years to obtain from the crown the privilege of holding ground for churches. It was a part of their love of freedom. And now we are told that they have no rights except under the act of 1730.
The legislature [**66] made no corporation for any purpose whatever until 1768. 1 Smith, 279.
The proprietary incorporated churches, because it was said they had lost legacies; and this was the apology to the crown for going against the English policy. There was only one attempt to destory a charitable use before the Revolution. In 1769 a will gave a legacy to an hospital and the poor, to two corporations, Christ Church and St. Peter's. The heir brought an ejectment in 1776, and the church took the opinions of Wilcox and Wilson, both of whom affirmed that the bequest was good at law. In 1779, the cause was ended without a decision of the question. These corporations were established in 1765 and became trustees for others. The property held is now of great value, and the trust is still kept up without any mismanagement.
After the act of 1730, the governor said in 1734 that there was a Catholic church in Philadelphia where mass was said contrary to law; but the Assembly replied, that in the colony there was a toleration of all religions, and there the matter ended. Worship is held there now.
The city of Philadelphia still holds and administers Franklin's legacy; and so of those of Kirkpatrick, Blakeley, [**67] Scott and Goudenot. There are two other legacies, and the Freemason's Lodge gave a sum of money, all of which are now administered. There is a separate book, called "Devises and Grants."
Are all these to be broken up?
The spirit of the statute of Elizabeth is extended to Ireland. 4 Dana's Abr. 5, 6; Shelford, 60.
They are also in Pennsylvania as part of the common law; bequests for pious uses are made by all descriptions of persons, no matter how uncertain the objects of the charity may be. The Quakers have held their schools through trustees, and never been incorporated since the settlement of the colony. See 3 Watts, 440.
See 5 Watts, 493, where a trust for a school was said to be "vague and uncertain;" but the court said not, "for the neighbours got the benefit of it." Charity-schools have been favourites in the state, sustained by usage, without any reference to the statute of Elizabeth.
Manuscript case of Zimmerman decided in the Supreme Court of Pennsylvania, on 6th January, 1844, where there was a bequest to an unincorporated society for the benefit of poor orphans, and the court said it was good under the constitution, although the statute of 43 Elizabeth is not in [**68] force.
7. The American cases are as follows: 12 Mass. Rep. 537, 546; 9 Cranch, 292, 43; 9 Cowen, 427, 437; 2 Peters, 566; 3 Peters, 501; 3 Shotwell, 3; 3 Paige, 300; 16 Pickering, 107; 6 Paige, 640; 7 Paige, 77; 7 Vermont Rep. 241; 4 Dana, 354; 3 Edwards, 79; 1 Voss, 96; 20 Wendell, 119; 24 Pickering, 146; 1 Hoffman, 202.
The Virginia and Maryland cases are not cited because they followed the rule laid down by this court in the case of the Baptist Association.
Sergeant, on the same side.
The condition of the law in England and Pennsylvania has been well examined. Lord Roslyn has said that chancery did not take cognisance of charitable uses before the statute of Elizabeth, but Lords Redesdale and Eldon say otherwise. Roslyn is known to us as the insulter of Dr. Franklin, and now the same great people whom he represented, are harrassed because this same Lord Roslyn doubted almost the statute of Elizabeth. When the rubbish of three centuries is swept away and the old records of England brought to light and published, there is evidence enough that the law of charities before the time of Elizabeth was the same that it is now in Pennsylvania. But the counsel on the other side complain [**69] that they cannot understand the law of Pennsylvania. It is not necessary that they should; for all that is asked by us is, that she may be suffered to enjoy the contributions of her own wise and good, accumulating from the time that the first white man came there to settle with the Bible in his hand. Girard came there after the constitution of 1776 and before that of 1791; he lived in an atmosphere of charities in philadelphia; he saw Franklin's charity established and upheld by law, administered by the city, and never heard its validity questioned. No tribunal in the state was ever asked or would be permitted to question Franklin's charity. Girard knew where to find the best legal advice, and undoubtedly had it. In Pennsylvania no argument would be listened to, such as we have heard here. We are invited to explain the law by those who do not want to understand it. It has been said by the other side, that no law can be considered as settled which has not been mooted; that is, that if all the courts, for an indefinite period, decide in the same way, it is of no account unless some ingenious and subtle mind calls the law into question. In one case, this court waited for the state [**70] court in Ohio to expound its laws, and then followed the decision. In another case, the court in Tennessee construed its laws; this court adopted it. The court in Tennessee reversed its decision; this court did so too. The present is a question on Pennsylvania law, and we have heard the last decision of its highest state court in January, 1844, read from the manuscript report. This concurs with all previous decisions; and yet the counsel on the other side say that they want a fixed system of law. Virginia and Maryland are the only two states where the law is otherwise, and they followed what they understood to be the decision of this court in the case of the Baptist Association.The question is not whether the Pennsylvania law is right or wrong, for we do not wish to impose it upon any one else.But the only question is, what does the law of Pennsylvania say upon the point. Girard's will was made by the advice of the best counsel that could be found; it was proved as soon as he died; the executors went on to perform their trust, in presence of the proper courts and with universal consent; they paid large sums over to the city.The claimants then brought an ejectment, and exhibited [**71] this will to the Supreme Court of Pennsylvania, who found no objection to it. The city of Philadelphia brought a suit under it for some property; no judge nor counsel ever hinted that the will was void.Five years passed. The legislature had passed a law immediately recognising the will as existing and valid in all its parts. The preamble does so. In the case of the Town of Pawlet, Mr. Justice Story says, "the crown has recognised the existence of the town." Does the recognition of this will by the legislature go for nothing? The capacity of performing certain acts is admitted by the legislature, and is this not as effectual as a recognition by the crown? Ten charities are going on now in Philadelphia. Custom and usage make the common law of England. Why has not Pennsylvania a right to enjoy her common law, not imported in parcels and packages from England, but modified and altered by circumstances and made suitable to the people.
If we are not strong enough to stand alone, we might ask support from the other states whose law is the same with ours. Where did the doctrine of charities spring from? and from what quater did it enter into the heart of man? We are authorized to [**72] denounce as an infidel or worse, the man who hath not charity in his heart. As surely as the pilgrims acknowledged a higher power, so surely did they recognise the obligation to take care of their fellow-creatures. The people of the state are now a hospitable and charitable people, and wo be to him who endeavours to intercept the flow of the current. Where money is given to the poor, is any one at liberty to take it? Thou shalt not steal. This is property under the protection of the court, and the right to it as sacred as that of any man to the enjoyment of his own. The voice of Pennsylvania is accordant and unbroken. We are called upon to examine what the chancellor did before the 43 of Elizabeth, three centuries ago; but this does not concern us. It is now settled evey there, that no charity shall fail; if it is indefinite, the king shall administer it. Whether there are trustees or not, whether there be a corporation or not, all take. This charity would be safe in England; any yet it is said we must lose it unless we can show how matters were conducted three hundred years ago. This is a heavy burden to lay on a charity. In Pennsylvania, as in England, the law of charity [**73] established itself. No man can say when it began; it has always existed as far as we know. What is the common law of England? Leaving out its being the perfection of reason, it is such an application of rules as will promote the welfare of society. The law of charity has existed in England for sixteen hundred years, some centuries before Alfred. Before Penn came over, there was a settlement of Swedes near Philadelphia, at Weccacoe, a brave and moral people. They built a place of worship, and about 1700 a better on which remains to this day. The charter of that church bears date in 1765, but the first church was built in 1677. Where was the law of charities for these hundred years? and what protected the graves around the church all this time? The same law that exists still. Christ Church was seventy years without a charter. In Walnut street there was a chapel abhorrent to English law, where mass was said. It stood until it was taken down and replaced by a larger one. Who ever offered to take away this church? What is the condition of the Philadelphia Library with its 50,000 volumes? It has always acted without a charter. Story supposes that the rudiments of this law [**74] of charities came from the civil law. Thurlaw and Eldon thought so too. In 1138, the civil law came into England, and the canon law soon afterwards, and is part of the law of that country to this day. But how did it get into the civil law? It is said from Constantine. But wherever Christianity went, charity went too. Gibbon says "the apostate Julian complained that Christians not only relieved their own poor, but those of the heathen also." The revealed law is part of the law of England. Blackstone says so. When did Christianity come into England? It reached Rome in the time of the apostles, where Paul and Peter both suffered. But when England? Some say at the same time that it was carried to Rome, and was there trodden down for a time. The latest period is 597, the arrival of Augustine. An archbishop of Canterbury was then appointed, and there has been one over since. If Christianity carried the law of charity to Rome, it must have done so to England too. It was a part of the common law after the sixth century. Where is there a spot upon earth, where Christianity is found, that the law of charity does not exist also? Alfred sent an embassy to the Christian churches [**75] in Syria, in the ninth century, and had the ten commandments translated into Saxon. From one great source have flowed two sorts of charities, one religious, the other more general. The only difficulty that ever existed in Pennsylvania related to the first class -- religious charities. In the 14th century lived Wickliffe, called the day-star of the Reformation; a and confounded with turbulent men, but a professor of divinity and singularly learned. It was an object in that day to save England from paying tribute to the pope. From that time a religious struggle ensued. Henry 8 found the Roman Catholic religion firmly established, the revealed law being part of the law of England. All parties admitted this. From the time of Augustine down, the common law had been undergoing changes to suit the spirit of the age, but the revealed law was a part of it all the time. Tothill, 126, quoted by Judge Baldwin in McGill and Brown. To this same great source we owe the idea of a paternal power in the state -- a parens patriae -- not the king, nor the chancellor, but a power existing somewhere to take care of the sick, the widow, and the orphan. Take this away and we become a nation of savages. [**76] If there is no protection for the infant and the aged, the charm of civilization is lost. In Pennsylvania all this is cared for; by hospitals and houses of refuge. No power is able to stop the flow of charity, because there is liberty of conscience. The same law that enjoins upon a witness in court to tell the truth, instructs him to give to the poor. One is not less binding than the other. All that is asked of government is, that under the protection of law, the great duty of charity may be fulfilled; and it is proposed now to say to every one that he shall not do so; that his gift shall be forfeited. The law of charitable uses furnishes this protection. In the 17 Edward 2, in 1324, the Knights Hospitallers were made new trustees of a charity when the Templars were dissolved. Story (Equity, 403, 412) says, that charities are liberally construed, and in 415, "if the bequest be for charity, no matter how uncertain the beneficiaries may be, a court will sustain the legacy." See also 3 Peters, 484; 4 Wheat. 41; 7 Vermont Rep. 289.)
A bequest is not void for uncertainty of persons. 7 Cranch, 45; 2 Story, 206; 6 Peters, 436, 437; 2 Peters, 256.
The law of charities existed in [**77] England prior to the time of Elizabeth. 2 Russell, 407.
The opinion given by Judge Baldwin in the case of McGill and Brown, embraces all the law of Pennsylvania. The law of this court is not different. The two cases cited in the decision of the Baptist Association appear now to be reported differently in five different books, and this court afterwards said that a dedication to pious uses should be protected. The case of the Baptist Society is reported in 3 Peters. If the counsel on the other side construe this case rightly, then all charitable uses are swept away; but how then did it happen that Chief Justice Marshall afterwards said that eleemosynary corporations are to be encouraged. There cannot be a right without a full remedy; and if a man has a right to give, his donation must be protected.
The constitution of 1776, sect. 46, says, "all religious or charitable societies ought to be encouraged and protected." What does the 43 Elizabeth do? It directs charities to be looked up, amounting to twenty-one. Is not the fundamental law of a state of as much potency as a British statute? The latter only looks to the past; the former to the future. The statute only includes [**78] twenty-one; the constitution takes in all. It says "other pious and charitable purposes." These words must be understood in their appropriate sense, according to their meaning in England at that time. It is of higher authority than the British statute, because it prohibited the legislature from doing any thing contrary to the principle which it established. The constitution is a great land-mark; no one can dispute its authority without treating the people of Pennsylvania with disrespect. In Beatty and Kirk, (580,) the court say "the bill of rights of Maryland recognises the statute of Elizabeth to some extent." Why is not a recognition to the full extent by Pennsylvania equally valid? Pennsylvania even adopts "superstitious uses," as they are called in England. Her settlers were of every shade of opinion.
The monasteries in England were seized upon by Henry 8, but the rapacity of his favourites was even greater than his own. England presents now a great contrast of rich and poor. Some of the largest fortunes are owing to the benefactions of this king, such as that held by the family of Russel. The owner of the "poor flat, Bedford level," complained that Burke received L [**79] 300 a year. Religious supremacy was established in the king. He laid down six articles, containing the points in dispute between himself and Rome. Who can tell what was then held to be "a superstitious use?" At the end of the Reformation, it was punishable to believe what the statute of 31 Henry 8 ordered. The test of "superstitious uses" was constantly changing down to the time of Charles 2; the Presbyterians, Independents, &c., when uppermost, all trying to compel conformity. Then our ancestors came, abhorring religious supremacy, bringing with them liberty of conscience, and the whole law of religious charities. They asked the crown to give them religious endowments, but not charities, and were at last compelled to take the act of 1730. Churches of all sects had been built, even Roman Catholic. In Magill and Brown, page 55, note, Judge Baldwin mentions forty-six charities, none of which were religious. The statutes 23 Henry 8, chap. 19, and 13 Elizabeth, chap. 1, make decrees of synods a part of the law of the land.
The Pennsylvania act of 1791, (Purdon's Digest, p. 181,) recites that any persons who mean to associate for the purposes of charity, may be incorporated with [**80] the approbation of the attorney-general. There never has happened a case where the property of any religious society, Jew or Catholic, was seized upon.
There are two objections made to the validity of the devise.
1. That the proposed system of education is unchristian.
2. That the beneficiaries are too uncertain.
As to the first, all conscientious scruples, honestly entertained, are entitled to great respect. If any man who has charge of an orphan boy is afraid to send him to the college, he may keep him away without censure. It is merely an invitation to come. The constitution of Pennsylvania respects all scruples of conscience, and if children were to be dragged in and kept by force, it would be a violation of its principles. But the will in effect says "obey conscience and yield it to nobody." This scruple is of recent origin. It is not alleged in the bill. Perhaps the complainants felt no scruples then, but do now. If they slumbered so long, they ought to have some charity for Mr. Girard, in whose breast they never awaked. But a great prize is now to be reached, and the judgment may be affected by the will. Two things must be made out to overthrow the devise upon [**81] this ground
1. That it is a superstitious use.
2. That it is inseparable from the trust.
The question is more suitable to a theological board than a court of justice. That the law of charity is the law of the land, is not a proposition depending upon theological inquiry. In Baxter's case, the court was not called upon to say which party was right, but only to decide what it was that the statute said; and because Baxter was a non-conformist, the trust was declared void. What could a Pennsylvania judge have done in such a case? He would find liberty of conscience established by the constitution; that in the constitution of the United States it is provided that Congress shall make no law affecting religion; and that Mr. Madison once affixed his veto to a bill incorporating a church under an apprehension that it trenched upon this delicate ground. It never was held that a charitable devise must make provision for religious education. In the list of forty-six before cited, thirty-seven are for mere charity. Does any one desire that the old times in religion should return, when a man was allowed to do good only in a particular way, and in no other? What was the spirit that led [**82] to burning the convent near Boston? Precisely this. Religious acrimony now destroys property, if it does not doom to the stake.
We have nothing to do with Mr. Girard's religious opinions. If any one thinks he can lead a better life, with equal humility and more zeal, let him try. Instead of there being any thing against religion in the will, there is a manly and unaffected testimony in its favour. The boys are directed to "adopt such religious tenets as mature reason may prefer;" any tenet, without exception. The will then holds religion to be inseparable from human character, but thinks the best way of forming that portion of the character is by attending to it at mature age. It is a speculative question. Can it be said that Girard had no respect for religion? He showed a religious heart by bestowing upon the poor what God had given him, so that, like Franklin's legacy, "it might go round." His desire was that the children should be educated in the manner which he thought the best, to make them religious. Who is to decide whether it is the best way or not? The objection assumes that the Bible is not to be taught at all, or that laymen are incapable of teaching it. There [**83] is not the least evidence of an intention to prohibit it from being taught. On the contrary, there is an obligation to teach what the Bible alone can teach, viz. a pure system of morality.
Is it true that ministers alone can teach religion? The officer at the head of the institution (Professor Bache) is a religious man. Can he not expound religion as well as science to his pupils? The laymen are the support, at last, of all churches. The next position will be that clergymen are responsible for every thing, and that a man can do nothing for himself. Every one has to teach his own children. Why can he not equally instruct those of other people? The orphans are not to enter the college until a contract is made for them by somebody. According to the common law, an infant can bind himself so some extent by a contract. So he can here. It must be sanctioned by his guardians too. No one objects to a child being bound out in a vessel where, of course, there is a great chance of his dying without the benefit of religious services, and where his voice, when in extremes, cannot reach an ear which, it is said, it ought to do. We must, upon his doctrine, condemn the House of Refuge. [**84] But we may trust that the cry of a child will be heard in mercy, although it may not reach the ear of a priest. If a father should refuse to instruct his children in religion, can the state interpose? Suppose that the will had made no provision on the subject, and the governors of the college had adopted this same regulation, would the court have denounced it as a violation of their duty? The case of the University of Virginia is far beyond this. There is no professor of theology, nor instruction in divinity. These things are purposely omitted, from a fear that the institution might become sectarian. If Virginia permits it, she is the judge of its propriety and not we. But Girard has neither prohibited religious instruction nor a professorship. What will the United States do with the Smithsonian legacy? Congress cannot connect religion with it. Clothing and feeding the poor are worthy objects. Girard is said to have expressed himself in terms derogatory to Christianity. Suppose he had used a different phraseology, and said that none but laymen should be admitted into the college. This would not have been objectionable, and yet precisely the same result have been brought [**85] about. Children are to be fed and clothed. This is not a superstitious use, and must stand. Will you destroy the patient, if there is an unsound limb? The case is left with the court with a perfect conviction that it will not put the knife to the throat of this most useful charity.