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The complainants in this cause are the next of kin to Stephen Girard, who come here to try the validity of a devise, purporting to establish what has been called a charity. The counsel on the opposite side have assailed their motives, accusing them of wishing to steal the bread of the orphan, and have censured them for coming to this court instead of resorting to the tribunals of Pennsylvania. The plaintiffs are foreigners, and have a right to come here under the Constitution of the United States. Are they to be reproached for it? But the answer to this objection has already been furnished by the opposite counsel, when they say that in Pennsylvania, the complainants would not have been permitted to question the devise. Here, they are sure of a patient hearing. The cause was not argued in the Circuit Court, because the question arose in that court in 1833, [**86] upon the construction of the will of Sarah Zane, [note: See Appendix.] and the court, in its opinion, decided the point. It would, therefore, have been useless to renew the argument there, but the best way was to bring the subject directly up for review.
It was said by the opening counsel, (Mr. Jones,) that in England charities are often superintended by the king in virtue of his prerogative, and that no analogous power can exist in a republican government, where there can be no parens patriae; and it was also said that in order to establish a peculiar and local common law in Pennsylvania, one decision is not enough, but there must be a series of decisions to sustain a system of law. Both these positions are correct.
But the attention of the court will be directed in the first place to that clause in the will which excludes clergymen, &c., from the college; and it is worthy of reflection whether the devise must not be maintained, if maintained at all, upon the ground of its being a charitable devise, and as such entitled to special favour. It is a proposition of the highest magnitude, whether in the eye of jurisprudence it is any charity at all; the affirmative cannot be supported [**87] by law, or reasoning, or decisions. There are two objections to it.
1. The plan of education is derogatory to the Christian religion, tending to weaken men's respect for it and their conviction of its importance. It subverts the only foundation of public morals, and therefore it is mischievous and not desirable.
2.It is contrary to the public law and policy of Pennsylvania.
The clause is pointedly opprobrious to the whole clergy; it brands them all without distinction of sect. Their very presence is supposed to be mischievous. If a preacher happens to have a sick relative in the college, he is forbidden to visit him. How have the great body of preachers deserved to be denied even the ordinary rites of hospitality? In no country in the world is there a body of men who have done so much good as the preachers of the United States; they derive no aid from government, constitute no hierarchy, but live by the voluntary contributions of those to whom they preach. It astonishes the old world that we can get on in this way.We have done something in law and politics towards our contribution for the benefit of mankind; but nothing so important to the human race as by establishing the [**88] gret truth that the clergy can liver by voluntary support. And yet they are all shut out from this college. Was there ever an instance before, where, in any Christian country, the whole body of the clergy were denounced? The opposite counsel have gone as far back as Constantine in their history of charities; but have they found or can they find a single case, where opprobrium is fixed upon the whole clergy? We have nothing to do with Girard's private character, which has been extolled for benevolence. Be it so. We are asked if he cannot dispose of his property. But the law cannot be altered to suit Girard. What is charity? It is the indulgence of kind affections -- love -- sympathy for our fellow-creatures. In a narrow sense it means alms, relief to the poor. But the question is, what is it in a legal sense? The object here is to establish a school of learning and shelter; to give a better education. The counsel upon the other side are right in speaking of charity as an emanation of Christianity. But if this be so, there can be no charity where the authority of God is derided and his word rejected. If it becomes an unbeliever, it is no longer charity. There is no example [**89] in the books of a charity where Christianity is excluded. There may be a charity for a school without a positive provision for Christian teachers; but where they are expressly excluded, it cannot be such a charity as is entitled to the special favour and protection of a court. It is said by the counsel on the other side that Pennsylvania is not an infidel state, but a Christian community; and yet children who are orphans, with no parents to look after them, are directed to be shut in to stay until they approach manhood, during the age when the character is formed, and if they happen to have any connections or friends who are clergymen, they are excluded from ever seeing them. There are two objectionable features in this restriction in the will. The first is, that all clergymen are excluded from the college; and the second, that a cruel experiment is to be made upon these orphans, to ascertain whether they cannot be brought up without religion.
[Mr. Webster here read a passage from one of the works of the late Bishop White upon this point.]
The doors of the college are open to infidels. The clause, as it stands, is as derogatory to Christianity as if provision had been made [**90] for lectures against it. If it be said that infidels will not be encouraged, the answer is, that a court can only judge of the tendency of measures. The trustees must not be supposed to violate the will. But it is said by the counsel that lay teaching can be substituted for clerical. There are at least four religious sects which do not allow this mode of teaching religion; and it is as much against the spirit of the will as teaching by clergymen. The object is to have no religious teaching at all, because in this way controversy will be avoided. Lawyers are as much sectarians as clergymen, and lay teaching leads as directly to controversy as lay preaching. The intention of the will is, that the boys shall choose their own religion when they grow up. The idea was drawn from Paine's Age of Reason, 211, where it is said "let us propagate morality unfettered by superstition." Girard had no secrets, and therefore used the words which he considered synonymous with "superstition," viz.: "religious tenets."
Ministers are the usual and appointed agents of Christ. In human affairs, where the ordinary means of attaining an object are rejected, the object is understood to be rejected [**91] also; much more is this the case when the means are of divine authority. In the New Testament preaching is ordered both before and after the crucifixion. "If any man refuse to hear," &c. "Go ye into all the world and preach the gospel to every creature." Different sects have different forms of worship, but all agree that preaching is indispensable. These appointed agencies have been the means of converting all that part of the world which is now Christian. What country was ever Christianized by lay teaching? By what sect was religious instruction ever struck out of education? None. Both in the Old and New Testaments its importance is recognised. In the Old it is said "Thou shalt diligently teach them to thy children," and in the New, "Suffer little children to come unto me and forbid them not." But this will requires religion to be put off till mature years, as if a knowledge of man's duty and destiny was not the earliest thing to be learned. Man is the only sentient being who knows that he is eternal; the question "If a man dies, shall he live again?" can be solved by religion alone.
Is this school a charity? What is to become of the Sabbath. It is not intended to say [**92] that this institution stands upon the same authority as preaching, but still it is a part of Christianity. All sects have a day which is holy, and hold its observance to be important. Lay teachers will not do. Where are the children to go to church, even if they go out of the college? There is no Christian father or mother who would not rather trust their children to the charity of the world at large, than provide in this way for their bodily comforts. The single example of the widow's mite, read as it has been to hundreds of millions of people, has done more good than a hundred marble palaces. No fault can be found with Girard for wishing a marble college to bear his name for ever, but it is not valuable unless it has a fragrance of Christianity about it.
The reasons which the testator gives are objectionable and derogatory to Christianity; they assume that a difference of opinion upon some religious tenets is of more importance than a Christian education, and in order to get rid of superfluous branches, they lay the axe to the root of the tree itself. The same objection is made by all the lower and vulgar class of the opponents of Christianity. The first step of infidelity [**93] is to clamour against the multitude of sects. Volney, 84, (Ruins of Empires,) says, "they all preach damnation against each other, and all cry out 'our holy religion.'" The opposite counsel say that Girard was in a difficulty, because if he had thrown open the college to all sects indiscriminately, they would not have agreed with each other. But if it had been so, these orphan children would not have been in a worse condition than other children, and what father would not have preferred that his children should go to this college under any form, than no form of religion? All sects believe in a future state and in a creator of the world. Suppose we carried out these principles of exclusion into our social relations. Differing as we do about government, it would tear up society by the roots. All preachers unite in many points; they would all agree with Franklin, who is reported in the letters of John Adams to his wife, to have said in the days of trouble, "let us have prayers."
[Mr. Binney here cited the following authorities to show that Jewish charities can be sustained. 1 Ambler, 228, note; 2 Swanston, 487; 7 Vesey, 417; Sheltford, 107; Boyle, 27.]
Mr. Webster said the [**94] distinction between the Jewish cases and the present is, that the former were within the ordinary rules of law, whereas this devise could only be sustained by being brought under the peculiar favour of the court, as it belongs to that class of charities. But what would be the condition of a youth coming fresh from this college? He could not be a witness in any court. He had never been taught to believe in a future state of rewards and punishments, because this is a "tenet" upon which he is enjoined not to make up his mind until he can examine for himself. What parent would bring up his child to the age of eighteen years without teaching him religion? What is an oath in heathen lands as well as our own? It is a religious appeal, founded upon a conviction that perjury will be punished hereafter. But if no superior power is acknowledged, the party cannot be a witness. Our lives and liberties and property all rest upon the sanctity of oaths. It is said that there will be no teaching against Christianity in this college, but I deny it. The fundamental doctrine is, that the youthful heart is not a proper receptacle for religion.This is not the charity of instruction. In monasteries [**95] education was always blended with religious teaching. The statute 4 Henry 4, chap. 12, in 1402, established charities of religion, (2 Pickering, 433,) and directed the schoolmaster to perform divine service, and instruct the children. 1 Edward 6, chap. 14, to the same effect. 2 Swanston, 526, 529, says that care was always taken to educate youths in the doctrines of Christianity, which is a part of the common law of England. That it is so, see 1 Benson, 296; 2 Strange, 834; 3 Merivale, 405; 2 Burn's Ecclesiastical Law, 95; 2 Russell, 501; Younge and Collyer's Reports in Chancery, 413, Attorney-General v. Cullum, a full authority.
In this last case there was a charity for the use of the parish, but no provision for religious education. The court said that if the fund were to be applied to education at all, a part of it must go to religious education; not the particular doctrines of the Church of England, but religion in a more comprehensive sense.
Bache, in his Course of Education in Europe, describes a monitorial school in Liverpool upon Bell's plan, but divine service is performed every Sunday. In Shepherd, 105, the cases are summed up.
As to the Smithsonian legacy and the [**96] University of Virginia, the former is not carried out, and the latter is no charity. Upon this branch of the case the whole argument may be presented in the following question, "Is a school, founded clearly on the principles of infidelity, a charity in the appropriate sense of that word?"
2. What is the law or public policy of Pennsylvania?
If there be a settled policy there, no gift or devise to overturn it can be recognised. It is an independent state, a popular government recognising all guarantees of popular liberty. It is lawful to speak or write against all these guarantees, such as trial by jury, &c., but if the aid of a court be asked to carry on these attacks, it will be refused.
Mr. Girard in his lifetime might have paid people to write against the right of suffrage, but it is a different thing when it assumes the shape of a charitable devise, and requires the strong aid of a court to carry out the design. The Christian religion is as much a part of the public law as any of these guarantees. The charter says that Penn came over to spread the Christian religion; and the legislatures have often acted upon this principle, as where they punished the violation of the [**97] Lord's day. That it is a part of the common law, see 11 Serg. and Rawle, 394, Updegraff v. The Commonwealth. So the court set aside a trust because it was inconsistent with public policy. See the case of the Methodist church, 5 Watts. The policy of a country is established either by law, or courts, or general consent. That Christianity is a part of the public law of Pennsylvania by general consent, if there were no other source of authority, the churches, meeting-houses, spires, and even grave-yards over the face of the country all show. The dead prove it as well as the living.
If the trust cannot be executed, can it be reformed?
Who is to do it? The doctrine of cy-pres cannot apply and give the benefit to some other society. It would be an extravagant application of the doctrine. Who is to supply the place of the trust stricken out? The trustee cannot. It is a case where there is no doubt of the intentions of the testator. They are positive. In other cases there is room for discretion, but none here. The testator calls these articles restrictions and limitations. Courts of equity have gone to an extravagant length in cy-pres cases, but it is impossible to reach this. [**98]
7 Vesey, 490, said that if authority were out of the way, the gift would be void, and the case be one of intestacy; but the court thought itself bound to follow authority and decree that the testator should be charitable in the court's way. See also Strange, 127, Attorney-General v. Dowling. But the entire doctrine of cy-pres is rejected by the Pennsylvania courts. See 17 Serg. and Rawle, 93; 1 Watts, 226.
As to the second division of the argument of the case, what is the law of Pennsylvania with respect to such devises?
This court will adopt the construction which the courts of a state place upon its laws. 2 Cranch, 87; 11 Wheat. 361; 2 Peters, 58; 6 Peters, 290; 12 Wheat. 153. There have been four cases decided in Pennsylvania, viz.: 17 Serg. and Rawle, 88, Witman v. Lex; 1 Pennsylvania Rep. 49, McGin v. Aaron; 3 Rawle, 170, Mayor, &c. v. Elliott, &c.; 1 Watts, 218, Methodist Church v. Remington. All these cases are in our favour, except a single dictum in one of them. The opposite counsel are obliged to reject the points decided in two. In the first case it was decided that the statute of Elizabeth was not in force, and the devise was not so uncertain as to be void. The [**99] second was a gift to a congregation for a house of religious worship; in the third there was no uncertainty in the cestui que trust, and in the fourth the trust was declared void.
The old records of England do not militate against the decision of this court in the case of the Baptist association. (4 Wheat. 1.) There is believed to be no case in them of an indefinite charity in perpetuity sustained by the authority of chancery prior to the time of Henry 8. Corporations competent to take, whether aggregate or sole, are not included within this remark. Decisions before the 43 Elizabeth are apt to be misunderstood, because the term "charity" is applied to cases where there is no uncertainty. 1 Proceedings in Chancery, 208. Of the fifty cases cited from the old records, only three are given at length; in one of which the objects of the trust are specially declared, and in the other two there was a license from the king. All the cases referred to did not take place before the time of Elizabeth. [note omitted]
[**100]
The acts of the legislature of Pennsylvania after the death of Girard can have no effect upon the rights of parties which were then vested.
The case in 3 Peters, 99, 115, Inglis v. The Trustees of the Sailor's Snug Harbour, rested upon the ground that the devise was good as an executory devise.
If the devise in trust be void in this case, what becomes of the fee? If must rest somewhere. In England, where a devise was made to a corporation which could not take, the fee was decided to be in the heir at law. Hobart, 136. But where a court of chancery charges itself with the whole administration of the charity, it takes possession of the fee as an incident to this power.In Pennsylvania there is no such authority anywhere, and this court cannot exercise it.What is done in England is done by virtue of the statute of Elizabeth, which has no force in this case. Suppose the corporation had renounced the trust, what would have become of the fee? Could the court in such case have divested the heirs of the fee and appointed another trustee? There is no power to remodel a trust as in England, or to exercise a right of visitation.
There is a want of power in the trustee to administer the [**101] charity. The fee must rest in the entire body of the corporation whilst others are administering the trust. It is true that sometimes trusts have been conferred on the heads of corporations, and the whole body been held responsible. But the will here can give no power. There is no connection between this trust and the powers of the corporation. The school is out of the city, and the only interest which the city has in it is that some of the poor may be provided for. But suppose a defalcation to take place. The mayor, &c., are chosen for the purpose of laying city taxes for city purposes. Can they levy a tax to replace the sum thus abstracted? Are the whole people of the city responsible by taxation for an abuse of trust? Yet they are a part of the corporation which is the trustee. The 16 section of the charter contains the power to hold land, but this does not go far enough. If the city cannot execute the trust, what becomes of it? It was the intention of the testator that a particular trustee and no other should execute it, and if that trustee is incapable of doing it, the trust must fail altogether.
By the Pennsylvania statutes of 1730, 1791, and 1833, the policy of [**102] the state is shown to be that a moderate limit is fixed for the amount of property held for religious or charitable purposes, first of L 500, and afterwards $2000. These laws are intended to act upon just such devises as this. Can it be said, with these laws in view, that an unincorporated body, such as these boys, or any one in trust for them, can hold property to the amount of $2,000,000? The policy of the state is to prevent large amounts in perpetuity, and if any one desires to exceed the limits fixed in those laws he must apply to the legislature for a special permission. Constitution of Pennsylvania, sect. 37; Purdon's Digest, title Estates-tail.
Where is the supervisory power over this trust? In 2 Vesey, 43, Attorney-General v. Foundling Hospital, it is said that chancery must supervise. When it is given to a corporation with power to trustees to go on, there is no need of a supervisory power except to protect the fund. 2 Bro. Chan. Ca. 220, 236.
In 17 Vesey, 409, it is said that if there are no visitors appointed in the charter, the chancellor interferes to visit, through a petition addressed to him as keeper of the great seal, representing the king in person. But [**103] there is no such power to be found any where in Pennsylvania. Girard should have provided for a charter, and the legislature could have seen how much property was going into mortmain and directed accordingly.
The city is incapable of executing this trust, because it cannot make contracts beyond the range of its charter. Suppose the trust should not be faithfully carried out by any agents, and the corporation be held responsible. In Pennsylvania, in case of a judgment against a corporation, any money on its way to the treasury can be arrested. In Bridgeport, Connecticut, the corporation issued bonds upon which there was a judgment, and private property in dwelling-house seized in execution; yet these persons could not prevent the bonds from being issued. There is no security anywhere for any species of property except by holding corporations to a strict exercise of their power. No good can be looked for from this college. If Girard had desired to bring trouble, and quarrel, and struggle upon the city, he could have done it in no more effectual way. The plan is unblessed in design and unwise in purpose. If the court should set it aside, and I be instrumental in contributing [**104] to that result, it will be the crowning mercy of my professional life.