43 U.S. 127 (Mem)

2 How. 127, 11 L.Ed. 205

(Cite as: 43 U.S. 127)

Supreme Court of the United States

FRANCOIS FENELON VIDAL, JOHN F. GIRARD, AND OTHERS, CITIZENS AND SUBJECTS OF

THE MONARCHY OF FRANCE, AND HENRY STUMP, COMPLAINANTS AND APPELLANTS,

v.

THE MAYOR, ALDERMEN AND CITIZENS OF PHILADELPHIA, THE EXECUTORS OF STEPHEN

GIRARD, AND OTHERS, DEFENDANTS

January Term, 1844

West Headnotes

Appeal and Error k671(1)

30k671(1)

Charities k12

75k12

In determining whether devise creating trust for establishment and maintenance of college was invalid as derogatory to Christian religion, court could not travel out of the record to ascertain private religious opinion of testator or consider whether scheme of education prescribed by testator was such as court would approve or was best adapted to accomplish the ends of education.

Appeal and Error k843(2)

30k843(2)

The supreme court will not enter on examination of public policy of state beyond what state constitutions and laws and decisions necessarily bring before the court.

Charities k3

75k3

St. 32 & 34 Hen. VIII. are not in force in Pennsylvania.

Charities k11

75k11

Charities k12

75k12

A trust for the establishment and support of a college for the education and maintenance of poor orphan children from which ecclesiastic missionaries and ministers were to be excluded was of an eleemosynary nature and a "charitable use".

Charities k11

75k11

Charities k12

75k12

Charities for the maintenance and relief of the poor, sick, and impotent and donations for the establishment of colleges, schools and seminaries, especially for the education of orphans and poor scholars, are "charities" in the sense of the common law.

Charities k12

75k12

Donations for the establishment of colleges, schools, and seminaries of learning, and especially such as are for the education of orphans and poor scholars, are charities, in the sense of the common law.

Charities k12

75k12

To establish invalidity of devise creating trust for establishment and maintenance of college on ground that foundation of college on principles prescribed by testator were derogatory to Christian religion, plain, positive and express provisions would be required to demonstrate not only that Christianity was not to be taught but that it was to be impugned or repudiated.

Charities k20(1)

75k20(1)

Charities k21(1)

75k21(1)

At common law no donation to charity could be enforced in court of chancery where donation was to trustees incapable of taking and beneficiaries were uncertain and indefinite.

Charities k20(5)

75k20(5)

If the purposes of the trust be germane to the objects of the incorporation, and if they relate to matters which will promote and aid and perfect those objects, the corporation may take the devise upon such trust; as, where one of the objects of incorporating a city was expressed in its charter to be to give power for the more effectual "suppression of vice and immorality, the advancement of the public health and order, and the promotion of trade, industry, and happiness," the city corporation, having power expressly given it, by its charter, to take real and personal estate without limitation, may take a devise upon trust for the establishing, building, and supporting a school in such city for "poor male white orphan children," and for maintaining and educating such children at such school, and for the purpose of making other improvements in the city tending to the suppression of vice, and to the benefit of the city, in respect to health, order, trade, and industry.

Charities k20(5)

75k20(5)

As the statute 32 and 34 Hen. VIII., which prohibits corporations from taking by devise, is not in force in Pennsylvania, the corporation of the city of Philadelphia may, under its charter, take real and personal estate by deed or devise.

Charities k21(3)

75k21(3)

A devise to charitable uses for "poor male white orphan children" is sufficiently certain and definite as to the beneficiaries.

Charities k38

75k38

Where a testator devised property in trust, to establish and support a college, and for the education and maintenance of poor orphan children therein, with the restriction that "no ecclesiatic, missionary, or minister of any sect whatsoever shall ever hold or exercise any station or duty whatever in said college, nor ever be admitted for any purpose, or as a visitor, within the premises appropriated to the purposes of said college," prescribing the branches of study which should be taught in the college, and directing that the orphans, who should be students therein, should be taught in the purest principles of morality, "so that, on entering active life, they may incline to benevolence, a love of truth, sobriety, and industry, adopting, at the same time, such religious tenets as their matured reason may enable them to prefer," but not expressly prohibiting religious instruction from being given in the college, it was held that these restrictions contained nothing inconsistent with the Christian religion, or opposed to any known policy of Pennsylvania.

Charities k43

75k43

A court of chancery has jurisdiction to enforce a charitable use for the education of orphans, and the right of the beneficiaries to have it so enforced is not affected by the fact that no court has existed in Pennsylvania having equity powers or with jurisdiction to enforce such trusts.

Charities k43

75k43

A charity is an object for which a court of equity will interfere to make good that which at law was an illegal or informal gift.

Charities k43

75k43

The doctrine of charitable uses was enforcible in chancery on general jurisdiction of court independently of statute of 43 Elizabeth relating to charitable uses.

Charities k43

75k43

There is an inherent jurisdiction in equity in cases of charity.

Common Law k4

85k4

(Formerly 57k1 Blasphemy)

Christianity is a part of the common law of the state in sense that its divine origin and truth are admitted and hence is not to be maliciously and openly reviled and blasphemed against to the annoyance of believers of the injury of the public.

Common Law k4

85k4

The Christian religion is a part of the common law of Pennsylvania.

Common Law k14

85k14

The common law is the law of Pennsylvania so far as applicable to its institutions and constitutional organization and civil rights and privileges.

Municipal Corporations k221

268k221

Where a city is incompetent to execute a trust under a will, if the devise be in other respects valid, the heirs of testator cannot take advantage of such incompetency; the state alone which granted the charter having the power so to do.

Municipal Corporations k223

268k223

As the corporation of the city of Philadelphia has power, under its charter, to take real and personal estate by deed, and also by devise, it may take such property in trust as a private individual might.

Parties k4

287k4

At common law sovereign, as perens patriae, had the right by his proper offices to call on the several courts of justice according to the nature of the several jurisdictions to see that right was done to the subjects who were incompetent to act for themselves.

Estoppel k1

156k1

Where a city was unable, under its charter, to execute a trust under a devise in a will, and the state enacted a law for the purpose of aiding such city in executing such trust, the state will be thereafter estopped to deny its competency to execute the trust.

Trusts k46

390k46

A devise to a city as a trustee, under a trust inconsistent with the purpose for which the city is established, is not void for that reason.

Trusts k160(1)

390k160(1)

Where a devise is made to a city as a trustee under a trust inconsistent with the purpose for which the city is established, equity will appoint a trustee to execute it.

Corporations k381

101k381

Where a corporation has the legal capacity to take real or personal estate, it may take and hold it upon trust to the same extent as a private person may do, though it may not be compellable to execute the trust if it be repugnant to, or inconsistent with, the proper purposes for which the corporation was created.

THIS case came up by appeal from the Circuit Court of the United States, sitting as a court of equity, for the eastern district of Pennsylvania.

The object of the bill filed in the court below was to set aside a part of the will of the late Stephen Girard, under the following circumstances:----

Girard, a native of France, was born about the middle of the last century. Shortly before the declaration of independence he came to the United States, and before the peace of 1783 was a resident of the city of Philadelphia, where he died in December, 1831, a widower and without issue. Besides some real estate of small value near Bordeaux, he was, at his death, the owner of real estate in this country which had cost him upwards of $1,700,000, and of personal property worth not less than $5,000,000. His nearest collateral relations were, a brother, one of the original complainants, a niece, the other complainant, who was the only issue of a deceased sister, and three nieces who were defendants, the daughters of a deceased brother.

The will of Mr. Girard, with two codicils, was proved at Philadelphia on 31st of December, 1831.

*129 After sundry legacies and devises of real property to various persons and corporations, the will proceeds thus:----

XX. And, whereas, I have been for a long time impressed with the importance of educating the poor, and of placing them, by the early cultivation of their minds and the developments of their moral principles, above the many temptations, to which, through poverty and ignorance, they are exposed; and I am particularly desirous to provide for such a number of poor male white orphan children, as can be trained in one institution, a better education, as well as a more comfortable maintenance, than they usually receive from the application of the public funds: and whereas, together with the object just adverted to, I have sincerely at heart the welfare of the city of Philadelphia, and as a part of it, am desirous to improve the neighborhood of the river Delaware, so that the health of the citizens may be promoted and preserved, and that the eastern part of the city may be made to correspond better with the interior. Now, I do give, devise and bequeath all the residue and remainder of my real and personal estate of every sort and kind wheresoever situate, (the real estate in Pennsylvania charged aforesaid,) unto 'the Mayor, Aldermen, and Citizens of Philadelphia,' their successors and assigns, in trust, to and for the several uses, intents, and purposes herein after mentioned and declared of and concerning the same, that is to say: so far as regards my real estate in Pennsylvania, in trust, that no part thereof shall ever be sold or alienated by the said mayor, aldermen, and citizens of Philadelphia, or their successors, but the same shall for ever thereafter be let form time to time, to good tenants, at yearly, or other rents, and upon leases in possession not exceeding five years from the commencement thereof, and that the rents, issues, and profits arising therefrom shall be applied towards keeping that part of the said real estate situate in the city and liberties of Philadelphia constantly in good repair, (parts elsewhere situate to be kept in repair by the tenants thereof respectively,) and towards improving the same, whenever necessary, by erecting new buildings, and that the net residue (after paying the several annuities herein-before provided for) be applied to the same uses and purposes as are herein declared of and concerning the residue of my personal estate: and so far as regards my real estate in Kentucky, now under the care of Messrs. Triplett and Brumley, in trust, to sell and dispose of the same, whenever it may be expedient to do so, and to apply the proceeds of such sale to the same uses and purposes as are *130 herein declared of and concerning the residue of my personal estate.

XXI. And so far as regards the residue of my personal estate, in trust, as to two millions of dollars, part thereof, to apply and expend so much of that sum as may be necessary, in erecting, as soon as practicably may be, in the center of my square of ground between High and Chestnut streets, and Eleventh and Twelfth streets, in the city of Philadelphia, (which square of ground I hereby devote for the purposes hereinafter stated, and for no other, for ever,) a permanent college, with suitable outbuildings, sufficiently spacious for the residence and accommodation of at least three hundred scholars, and the requisite teachers and other persons necessary in such an institution as I direct to be established, and in supplying the said college and out-buildings with decent and suitable furniture, as well as books and all things needful to carry into effect my general design.

The said college shall be constructed with the most durable materials, and in the most permanent manner, avoiding needless ornament, and attending chiefly to the strength, convenience, and neatness of the whole: It shall be at least one hundred and ten feet east and west, and one hundred and sixty feet north and south, and shall be built on lines parallel with High and Chestnut streets and Eleventh and Twelfth streets, provided those lines shall constitute at their junction right angles. It shall be three stories in height, each story at least fifteen feet high in the clear from the floor to the cornice. It shall be fire- proof inside and outside. The floors and the roof to be formed of solid materials, on arches turned on proper centres, so that no wood may be used, except for doors, windows, and shutters. Cellars shall be made under the whole building, solely for the purposes of the institution, &c., &c., &c., (and then follows a long and exceedingly minute description of the manner in which the building shall be erected.)

When the college and appurtenances shall have been constructed, and supplied with plain and suitable furniture and books, philosophical and experimental instruments and apparatus, and all other matters needful to carry my general design into execution, the income, issues, and profits of so much of the said sum of two million of dollars as shall remain unexpended, shall be applied to maintain the said college according to my directions.

1. The institution shall be organized as soon as practicable, and to accomplish that purpose more effectually, due public notice of the *131 intended opening of the college shall be given, so that there may be an opportunity to make selections of competent instructors and other agents, and those who may have the charge of orphans may be aware of the provisions intended for them.

2. A competent number of instructors, teachers, assistants, and other necessary agents, shall be selected, and when needful, their places from time to time supplied. They shall receive adequate compensation for their services; but no person shall be employed who shall not be of tried skill in his or her proper department, of established moral character, and in all cases persons shall be chosen on account of their merit, and not through favor or intrigue.

3. As many poor white male orphans, between the ages of six and ten years, as the said income shall be adequate to maintain, shall be introduced into the college as soon as possible; and from time to time as there may be vacancies, or as increased ability from income may warrant, others shall be introduced.

4. On the application for admission, an accurate statement should be taken in a book prepared for the purpose, of the name, birthplace, age, health, condition as to relatives, and other particulars useful to be known of each orphan.

5. No orphan should be admitted until the guardians or directors of the poor, or a proper guardian or other competent authority shall have given, by indenture, relinquishment, or otherwise, adequate power to the mayor, aldermen, and citizens of Philadelphia, or to directors, or others by them appointed, to enforce, in relation to each orphan, every proper restraint, and to prevent relatives or others from interfering with, or withdrawing such orphan from the institution.

6. Those orphans, for whose admission application shall first be made, shall be first introduced, all other things concurring--and at all future times, priority of application shall entitle the applicant to preference in admission, all other things concurring; but if there shall be, at any time, more applicants than vacancies, and the applying orphans shall have been born in different places, a preference shall be given--first, to orphans born in the city of Philadelphia; secondly, to those born in any other part of Pennsylvania; thirdly, to those born in the city of New York, (that being the first port on the continent of North America at which I arrived;) and lastly, to those born in the city of New Orleans, being the first port on the said continent at which I first traded, in the first instance as first officer, and subsequently as master and part-owner of a vessel and cargo.

*132 7. The orphans admitted into the college shall be there fed with plain but wholesome food, clothed with plain but decent apparel, (no distinctive dress ever to be worn,) and lodged in a plain but safe manner: due regard shall he paid to their health, and to this end their persons and clothes shall be kept clean, and they shall have suitable and rational exercise and recreation. They shall be instructed in the various branches of a sound education, comprehending reading, writing, grammer, arithmetic, geography, navigation, surveying, practical mathematics, astronomy, natural, chemical and experimental philosophy, the French and Spanish languages, (I do not forbid, but I do not recommend the Greek and Latin languages,)--and such other learning and science as the capacities of the several scholars may merit or warrant. I would have them taught facts and things, rather than words or signs; and especially, I desire, that by every proper means a pure attachment to our republican institutions, and to the sacred rights of conscience, as guaranteed by our happy constitutions, shall be formed and fostered in the minds of the scholars.

8. Should it unfortunately happen, that any of the orphans admitted into the college shall, from mal-conduct, have become unfit companions for the rest, and mild means of reformation prove abortive, they should no longer remain therein.

9. Those scholars who shall merit it, shall remain in the college until they shall respectively arrive at between fourteen and eighteen years of age; they shall then be bound out by the mayor, aldermen, and citizens of Philadelphia, or under their direction, to suitable occupations--as those of agriculture, navigation, arts, mechanical trades, and manufactures, according to the capacities and acquirements of the scholars respectively, consulting, as far as prudence shall justify it, the inclinations of the several scholars, as to the occupation, art, or trade to be learned.

In relation to the organization of the college and its appendages, I leave, necessarily, many details to the mayor, aldermen, and citizens of Philadelphia, and their successors; and I do so with the more confidence, as, from the nature of my bequests and the benefit to result from them, I trust that my fellow- citizens of Philadelphia will observe and evince especial care and anxiety in selecting members for their city councils, and other agents.

There are, however, some restrictions, which I consider it my duty to prescribe, and to be, amongst others, conditions on which *133 my bequest for said college is made and to be enjoyed, namely:--First, I enjoin and require, that if, at the close of any year, the income of the fund devoted to the purposes of the said college shall be more than sufficient for the maintenance of the institution during that year, then the balance of the said income, after defraying such maintenance, shall be forthwith invested in good securities, thereafter to be and remain a part of the capital; but, in no event, shall any part of the said capital be sold, disposed of or pledged to meet the current expenses of the said institution, to which I devote the interest, income, and dividends thereof, exclusively: Secondly, I enjoin and require that no ecclesiastic, missionary, or minister of any sect whatsoever, shall ever hold or exercise any station or duty whatever in the said college; nor shall any such person ever be admitted for any purpose, or as a visitor, within the premises appropriated to the purposes of the said college.

In making this restriction, I do not mean to cast any reflection upon any sect or person whatsoever; but, as there is such a multitude of sects, and such a diversity of opinion amongst them, I desire to keep the tender minds of the orphans, who are to derive advantage from this bequest, free from the excitement which clashing doctrines and sectarian controversy are so apt to produce; my desire is, that all the instructors and teachers in the college shall take pains to instil into the minds of the scholars the purest principles of morality, so that, on their entrance into active life, they may, from inclination and habit, evince benevolence towards their fellow-creatures, and a love of truth, sobriety, and industry, adopting at the same time such religious tenets as their matured reason may enable them to prefer.

If the income arising from that part of the said sum of two millions of dollars, remaining after the construction and furnishing of the college and outbuildings, shall, owing to the increase of the number of orphans applying for admission, or other cause, be inadequate to the construction of new buildings, or the maintenance and education of as many orphans as may apply for admission, then such further sum as may be necessary for the construction of new buildings, and the maintenance and education of such further number of orphans, as can be maintained and instructed within such buildings as the said square of ground shall be adequate to, shall be taken from the final residuary fund, hereinafter expressly referred to, for the purpose, comprehending the income of my real estate in the city and county of Philadelphia, and the dividends of my stock in the Schuylkill Navigation Company--my *134 design and desire being, that the benefits of said institution shall be extended to as great a number of orphans as the limits of the said square and buildings therein can accommodate.

XXII. And as to the further sum of five hundred thousand dollars, part of the residue of my personal estate, in trust, to invest the same securely, and to keep the same so invested, and to apply the income thereof exclusively to the following purposes, that is to say--(then follows an enumeration of the objects to which the income of the fund is to be applied, being the improvement of the eastern part of the city.)

XXIII. I give and bequeath to the commonwealth of Pennsylvania, the sum of three hundred thousand dollars, for the purpose of internal improvement by canal navigation, to be paid into the state treasury by my executors, as soon as such laws shall have been enacted by the constituted authorities of the said commonwealth as shall be necessary, and amply sufficient to carry into effect, or to enable the constituted authorities of the city of Philadelphia to carry into effect the several improvements above specified, namely: 1. Laws, to cause Delaware Avenue, as above described, to be made, paved, curbed, and lighted; to cause the buildings, fences, and other obstructions now existing, to be abated and removed, and to prohibit the creation of any such obstructions to the eastward of said Delaware Avenue; 2. Laws, to cause all wooden buildings, as above described, to be removed, and to prohibit their future erection within the limits of the city of Philadelphia; 3. Laws, providing for the gradual widening, regulating, paving, and curbing Water street, as hereinbefore described, and also for the repairing the middle alleys, and introducing the Schuylkill water and pumps, as before specified--all which objects may, I persuade myself, be accomplished on principles at once just in relation to individuals, and highly beneficial to the public: the said sum, however, not to be paid, unless said laws be passed within one year after my decease.

XXIV. And as it regards the remainder of said residue of my personal estate, in trust, to invest the same in good securities, and in like manner to invest the interests and income thereof from time to time, so that the whole shall form a permanent fund, and to apply the income of the said fund:

1st. To the further improvement and maintenance of the aforesaid college, as directed in the last paragraph of the XXIst clause of this will.

*135 2d. To enable the corporation of the city of Philadelphia to provide more effectually than they now do, for the security of the persons and property of the inhabitants of the said city, by a competent police, including a sufficient number of watchmen, really suited to the purpose; and to this end, I recommend a division of the city into watch districts, or four parts, each under a proper head, and that at least two watchmen shall, in each round or station, patrole together.

3d. To enable the said corporation to improve the city property, and the general appearance of the city itself, and, in effect, to diminish the burden of taxation, now most oppressive, especially on those who are least able to bear it.

To all which objects, the prosperity of the city, and the health and comfort of its inhabitants, I devote the said fund as aforesaid, and direct the income thereof to be applied yearly and every year for ever, after providing for the college as hereinbefore directed, as my primary object. But, if the said city shall knowingly and wilfully violate any of the conditions hereinbefore and hereinafter mentioned, then I given and bequeath the said remainder and accumulations to the commonwealth of Pennsylvania, for the purposes of internal navigation; excepting, however, the rents, issues, and profits of my real estate in the city and county of Philadelphia, which shall for ever be reserved and applied to maintain the aforesaid college, in the manner specified in the last paragraph of the XXIst clause of this will: And if the commonwealth of Pennsylvania shall fail to apply this or the preceding bequest to the purposes before mentioned, or shall apply any part thereof to any other use, or shall, for the term of one year from the time of my decease, fail or omit to pass the laws hereinbefore specified for promoting the improvement of the city of Philadelphia, then I give, devise, and bequeath the said remainder and accumulations (the rents aforesaid always excepted and reserved for the college as aforesaid) to the United States of America, for the purposes of internal navigation, and no other.

Provided, nevertheless, and I do hereby declare, that all the preceding bequests and devises of the residue of my estate to the mayor, aldermen, and citizens of Philadelphia, are made upon the following express conditions, that is to say: First, That none of the moneys, principal, interest, dividends, or rents, arising from the said residuary devise and bequest, shall at any time be applied to any other purpose or purposes whatever, than those herein mentioned and appointed. Second, That separate accounts, distinct from the other *136 accounts of the corporation, shall be kept by the said corporation, concerning the said devise, bequest, college, and funds, and of the investment and application thereof; and that a separate account or accounts of the same shall be kept in bank, not blended with any other account, so that it may at all times appear on examination by a committee of the legislature, as hereinafter mentioned, that my intentions had been fully complied with. Third, That the said corporation render a detailed account annually, in duplicate, to the legislature of the commonwealth of Pennsylvania, at the commencement of the session, one copy for the Senate, and the other for the House of Representatives, concerning the said devised and bequeathed estate, and the investment and application of the same, and also a report in like manner of the state of the said college, and shall submit all their books, papers, and accounts touching the same, to a committee or committees of the legislature for examination, when the same shall be required.

Fourth, The said corporation shall also cause to be published in the month of January, annually, in two or more newspapers, printed in the city of Philadelphia, a concise but plain account of the state of the trusts, devises, and bequests herein declared and made, comprehending the condition of the said college, the number of scholars, and other particulars needful to be publicly known, for the year next preceding the said month of January, annually.

(The 25th section related to the winding up of the Girard Bank, and the 26th appointed Timothy Paxon, Thomas P. Cope, Joseph Roberts, William J. Duane, and John A. Barclay, Executors. Then followed the execution of the will, in regular form, on the 16th day of February, 1830.)

Whereas, I, Stephen Girard, the testator named in the foregoing will and testament, dated the sixteenth day of February, eighteen hundred and thirty, have, since the execution thereof, purchased several parcels and pieces of real estate, and have built sundry messuages, all which, as well as any real estate that I may hereafter purchase, it is my wish and intention to pass by the said will: Now, I do hereby republish the foregoing last will and testament, dated February 16, 1830, and do confirm the same in all particulars.

In witness, I, the said Stephen Girard, set my hand and seal hereunto, the twenty-fifth day of December, eighteen hundred and thirty.

STEPHEN GIRARD. [L. S.]

*137 Signed, sealed, published, and declared by the said Stephen Girard, as and for a republication of his last will and testament, in the presence of us, who, at his request, have hereunto subscribed our names as witnesses thereto, in the presence of the said testator and of each other, December 25th, 1830.

JOHN H. IRWIN,

SAMUEL ARTHUR,

JNO. THOMSON.

Whereas I, Stephen Girard, the testator named in the foregoing will and testament, dated February 16th, 1830, have since the execution thereof, purchased several parcels and pieces of land and real estate, and have built sundry messuages, all of which, as well as any real estate that I may hereafter purchase, it is my intention to pass by said will; and whereas, in particular, I have recently purchased from Mr. William Parker the mansion-house, out- buildings, and forty-five acres and some perches of land, called Peel Hall, on the Ridge road, in Penn Township: Now, I declare it to be my intention, and I direct, that the orphan establishment, provided for in my said will, instead of being built as therein directed upon my square of ground between High and Chestnut and Eleventh and Twelfth streets, in the city of Philadelphia, shall be built upon the estate, so purchased from Mr. W. Parker, and I hereby devote the said estate to that purpose, exclusively, in the same manner as I had devoted the said square, hereby directing that all the improvements and arrangements for the said orphan establishment, prescribed by my said will, as to said square, shall be made and executed upon the said estate, just as if I had in my will devoted the said estate to said purpose--consequently, the said square of ground is to constitute, and I declare it to be a part of the residue and remainder of my real and personal estate, and given and devised for the same uses and purposes, as are declared in section twenty of my will, it being my intention, that the said square of ground shall be built upon, and improved in such a manner, as to secure a safe and permanent income for the purposes stated in said twentieth section.

In witness whereof, I, the said Stephen Girard, set my hand and seal hereunto, the twentieth day of June, eighteen hundred and thirty-one.

STEPHEN GIRARD. [L. S.]

Signed, sealed, published, and declared by the said Stephen Girard, as and for a republication of his last will and testament, and a *138 further direction in relation to the real estate therein mentioned, in the presence of us, who, at his request, have hereunto subscribed our names as witnesses thereto, in the presence of the said testator, and of each other, June 20, 1831.

S. H. CARPENTER,

L. BARDIN,

SAMUEL ARTHUR.

The executors named in the will, duly proved the same with the codicils before the register of wills for the city and county of Philadelphia, obtained letters testamentary thereon, and took upon themselves the burden of the execution thereof. Inventories and supplementary inventories of the estate were filed, debts and legacies paid, and large sums of money paid to the residuary legatees. The accounts of the executors were filed in the office of the register of wills, from which they passed, in due course of legal proceedings to the Orphan's Court, for the city and county of Philadelphia.

An act of the legislature of Pennsylvania, of 24th March, 1832, 'To enable the Mayor, Aldermen, and Citizens of Philadelphia to carry into effect certain improvements, and to execute certain trusts,' recites the bequest of $500,000, in Stephen Girard's will, sect. 22, to the mayor, aldermen and citizens of Philadelphia, in trust, &c., and 'for the purpose of enabling the mayor, aldermen, and citizens of Philadelphia, aforesaid, to effect the improvements contemplated by the said testator, and to execute in all other respects the trusts created by his will, to enable the constituted authorities of the city of Philadelphia to carry which into effect, the said Stephen Girard has desired the legislature to enact the necessary laws.' Sections 1 to 9 contain enactments stipulated by the testator in sect. 23 of the will, as the condition on which $300,000 was bequeathed to the commonwealth of Pennsylvania.

'And forasmuch as in the course of time it may appear that powers are not vested in the said, the mayor, aldermen and citizens of Philadelphia, which may be yet required, to the full execution of those parts of the said will of the said Stephen Girard, for the carrying of which into effect he has in his said will requested legislative provision, and it is the object and intent of this act fully to confer all such powers.

'Sect. 10. Be it further, &c., That it shall be lawful for the mayor, aldermen, and citizens of Philadelphia, to exercise all such jurisdiction, enact all such ordinances, and do and execute all such acts and *139 things whatsoever as may be necessary and convenient for the full and entire acceptance, execution and prosecution, of any and all the devises and bequests, trusts and provisions, contained in the said will, which are the subjects of the preceding parts of this act, and to enable the constituted authorities of the city of Philadelphia to carry which into effect, the said Stephen Girard has desired the legislature to enact the necessary laws.

'Sect. 11. And be it further, &c., That no road or street shall be laid out or passed through the land in the county of Philadelphia, bequeathed by the late Stephen Girard for the erection of a college, unless the same shall be recommended by the trustees or directors of the said college, and approved of by a majority of the Select and Common Councils of the city of Philadelphia.'

By another act, passed on the 4th of April, 1832, entitled 'A supplement to the act entitled 'An act to enable the Mayor, Aldermen, and Citizens of Philadelphia, to carry into effect certain improvements, and to execute certain trusts'' the Select and Common Council of the city of Philadelphia, are authorized to provide by ordinance, or otherwise, for the election or appointment of such officers or agents as they may deem essential to the due execution of the duties and trusts enjoined and created by the will of the late Stephen Girard.

In October, 1836, some of the heirs of Stephen Girard filed a bill upon the equity side of the Circuit Court of the United States for the eastern district of Pennsylvania, against the corporation of Philadelphia, the executors, and some of the nieces of Girard, who were made co-defendants. The claim, as presented in the original bill, amended bill, and bill of revivor, (in which Henry Stump is made a party as the administrator of one of the deceased complainants,) is as follows:----

'Your orator and oratrix further show, that amongst other things in their original bill, they have alleged and charged that the testator, Stephen Girard, by a supposed devise in his last will and testament, has in the first place appropriated two millions of dollars to the mayor, aldermen, and citizens of Philadelphia, in trust, for the erection and endowment of a college, for the maintenance and education of a class of orphans, attempted to be described by the said testator in his will.

'And your orator and oratrix further state, that in their original bill, they set out that the said testator, in and by his will, after appropriating *140 the two millions of dollars as aforesaid, by another supposed devise, dedicated the whole of the residuum of his real and personal estate, with certain exceptions mentioned in the said original bill, to the mayor, aldermen, and citizens of Philadelphia, in trust, for the progressive enlargement of said college, and that there are no other limitations to the number of orphans to be ultimately admitted into the said college, nor to the cost nor extent of the establishment, but the number and extent of the collegiate buildings and their appendages, that may from time to time be erected within the entire area of forty-five acres and some perches of land, being a country-seat called Peel Hall; so that in effect there is no devise over of any part of the said residuum of the real and personal estate of the testator, to any other use, purpose or object, after deducting the appropriations that are accepted in the original bill, than the charity connected with the establishment of said college, except it be contingently, in case the said college establishment be not made, as it is contemplated to be, capable of absorbing the whole of the said residuum of the real and personal estate, intended to be devised in trust as aforesaid, as by a reference to the said original bill and exhibits, which your complainants pray may be taken as part of this bill, will more fully appear.

'Your complainants suggest and insist to be available, that it will be decided, from a true exposition and construction of said will, which is submitted to the court, that it was the intention of the testator to dedicate the whole of the rents, issues, and profits of his real estate in the city and county of Philadelphia, in trust, exclusively to the uses and purposes of the charity connected with said college, and not that the said real estate, or the rents, issues, and profits thereof are to be contingently applied to any other use or purpose, unless it be to the payment of a ratable proportion of certain annuities charged on the real estate of the testator, in the state of Pennsylvania, by the eighteenth clause in his will.

'And your orator and oratrix further aver and expressly charge, that the charity connected with the college, if the establishment is erected and managed according to the directions of the testator, and the necessary buildings constructed so as to fill up and improve the whole area of forty-five acres and some perches of land, will require and consume the whole of the residuum of his real and personal estate, attempted to be devised as aforesaid for the purposes of erecting, progressively enlarging, and perpetually maintaining said collegiate establishment, for the support and education of as great a number *141 of orphans as the testator directs to be admitted therein, so that there will be no surplus of said residuum of his real and personal estate supposed to be devised in trust as aforesaid, to be appropriated to any other objects or purposes designated by the testator in his will. And your orator and oratrix aver, that there is no devise over for any other purpose, upon any contingency, of the said two millions of dollars, supposed to be devised to the mayor, aldermen, and citizens of Philadelphia, in trust, for the erection and endowment of said college, and that no part of said two millions of dollars, according to the will of the testator, can be applied in any event to any other use, purpose or object, except to the charitable objects depending upon the erection, endowment and perpetual support of said college. And your orator and oratrix aver and insist to be available, that the said supposed devise of two millions of dollars to the mayor, aldermen, and citizens of Philadelphia, in trust, for the erection and endowment of said college, for the benefits of uncertain objects of charity, supposed to be intended by the testator, is void.

'And your complainants maintain, that the mayor, aldermen, and citizens of Philadelphia, were at the death of the testator, incapable of executing any such trust, or of taking and holding a legal estate for the benefit of others; and that whatever may be the capacity of said mayor, aldermen, and citizens of Philadelphia, to hold property for the use of others, or to execute a trust, the object for whose benefit the said devise in trust is supposed to have been made, are indefinite, vague, and uncertain, as will appear from an examination of said will; so that no trust is created that is capable of being executed, or is cognizable either at law or in equity, and no estate passed by said supposed devise, that can vest in any existing or ascertainable cestuis que trust; that if the objects or persons for whose benefit the said devise is supposed to have been made, were susceptible of ascertainment, yet such beneficiaries, when ascertained, would be wholly incapable of transmitting their equitable title in perpetual succession, so that the said two millions of dollars, for want of a good and effectual devise, has descended by operation of the law governing descents in the state of Pennsylvania, and the treaty stipulations between France and the United States, to the heirs at law of Stephen Gerard the testator, according as such laws and treaty stipulations affect the rights of such of the heirs as are aliens and such as are citizens of the United States.

'Your orator and oratrix expressly charge in their original bill, that *142 the said supposed devise to the mayor, aldermen, and citizens of Philadelphia, in trust, of the whole of the residuum of the real and personal estate of the testator, for the erection, progressive enlargement, and perpetual support of said college, is void, and that your complainants were heirs at law of said testator, and each entitled to one-third part of the estate of the testator, undisposed of or ineffectually disposed of by his last will, according to the law governing descents in the state of Pennsylvania, and the treaty stipulations between France and the United States; and that the testator at the time of his death left certain other heirs, namely, Maria Antoinetta, wife of John Hemphill, Henrietta, wife of John Y. Clark, and Caroline, wife of Joh Haslam, which said Maria, Henrietta, and Caroline, are nieces of the said testator, and daughters of John Girard, later of Philadelphia, deceased, and they and their husbands, except the husband of said Caroline, are all made defendants to said bill, together with Mark Richards, who is the trustee of Caroline, all of which said defendants are citizens of the state of Pennsylvania. And your orator and oratrix further allege that the last named heirs are the only persons entitled besides your complainants to any part of the real or personal estate of which the said testator died seised or possessed, and which remained undisposed of or ineffectually devised by his will.

'And your complainants, as they are informed, verily believe and expressly charge, that notwithstanding the invalidity of said supposed devise or devises in trust, the said mayor, aldermen, and citizens of Philadelphia, soon after the death of the testator, entered upon and possessed themselves of the two millions of dollars, supposed to be devised to them in trust for the erection and support of said college, and also of the whole of the residuum of the real and personal estate of the testator, supposed to be devised to them for the same purposes, and have ever since continued to hold and manage the same according to the terms of said supposed trust, or under the pretext of applying the said two millions of dollars, and the said residuum of the real and personal estate of the testator, to the supposed objects and purposes of said trust; that they have altogether refused to account to your complainants or to pay over to them any part of their distributive shares, either of the said two millions of dollars or of the residuum of the real and personal estate, to which they are entitled, but intending artfully and fraudulently to evade and baffle the reasonable and just claims of your complainants, and the relief prayed for in the *143 original bill, they have neglected to answer fully, either as to the amount or value of the real or personal estate they have entered upon or received from the estate of the testator, under color of said trust; and your complainants pray that in order to obtain the relief and equity prayed for, the said mayor, aldermen, and citizens of Philadelphia, be compelled to answer and discover,' &c. &c.

[The bill then prayed a general discovery and account from all parties.]

The defendants all answered, and the executors filed full accounts of all their transactions. A commission to take testimony was issued to France, in order to establish the relationship existing between the complainants and the deceased.

Under the act of 1832, the corporation of Philadelphia passed an ordinance providing for the building of the college, and the board of trustees created thereby was organized in March, 1833. The building was commenced and carried on from year to year under the direction of the authorities appointed in this ordinance.

On the 28th of April, 1841, the cause came on for hearing in the Circuit Court upon the bill, amended bill, and bill of revivor, answers, replications, depositions and exhibits, when, after argument of counsel, it was ordered, and adjudged, and decreed, that the complainants' bill be dismissed with costs.

The complainants appealed to this court.

Jones and Webster, for the appellants, who were also the complainants below.

Binney and Sargeant, for the defendants.

Jones made the three following points:

1. That the bequest of the college fund is to this amount void, by reason of the uncertainty of the designation of the beneficiaries or cestuis que trust of the legacy.

2. That the corporation of the city of Philadelphia is not authorized by its charter to administer the trusts of this legacy, and that the intentions of the testator would be defeated by the substitution of any other trustee.

3. That if otherwise capable of taking effect, the trust would be void, because the plan of education proposed is antichristian, and therefore repugnant to the law of Pennsylvania, and is also opposed to the provision of Art. IX. sect. iii. of the Constitution of Pennsylvania, *144 that 'no human authority can in any case whatever control or interfere with the rights of conscience.'

If the first point should be established and the second not, the corporation would become trustees for the complainants. 8 Pet., 326; King v. Mitchell, 1 Meriv., 336; 2 N. C., 557 2 Dev. (N. C.), 309; 10 Ves., 535.

The city of Philadelphia claims as a residuary legatee, even if the trust should be declared void, but there are two answers to this, first, that a trust bars the residuary interest, and, second, that the residuum is divided into parts. Amb., 580; 1 Johns. (N. Y.), 571.

In real estate, the residuary devisee never had a lapsed devise.

The bequest of the college fund is void by reason of the uncertainty of the cestuis que trust.

At common law and prior to the statute 43 Elizabeth, such devises were void, and that statute is not in force in Pennsylvania. Duke, 125; Delford on Mortmain, 43.

The statute 5 Elizabeth, reviving a statute of Henry 8, says, henceforth it shall be lawful, &c., implying that it was not lawful before.

In England, formerly, all charities were under the care of the ecclesiastical courts. At the Reformation they were withdrawn from the church, and paupers thrown upon the public. Henry 8 was glad to find some other way of supporting them, and Elizabeth encouraged private persons to found charities with the same view. But since her day, the source of the power which chancery has exercised over charities in England has been the prerogative of the crown, and this prerogative law never could have been introduced into the colonies. Jurisdiction over the three subjects of lunatics, infants, and charities has always gone together, and been claimed because the king is said to be parens patriae. 1 Bl. Com., 303; 3 Id., 47.

The king, in his judicial capacity, through the chancellor, and exercising an extraordinary jurisdiction, takes control of these things. 3 Bl. Com., 427; 1 Fonbl., 57, note; 2 Id., 207, 235; Shepherd on Wills, 208; Chitty's Prerogative Law, 155, 161; 2 Atk., 553, where Lord Hardwicke says it is a personal authority of the chancellor.

The jurisdiction over charities is not within the ordinary powers of equity, but falls back upon the king's prerogative. Sir Francis More, 188; Hob., 138; 13 Ves., 248.

It must be an extra-judicial function to set aside a will. How *145 could this power have passed over to a revolutionized and republican state? In England, if the chancellor could not entertain jurisdiction, he referred the case to the king, who acted under his sign manual, but to whom can an American chancellor refer it? In an elective republic it is impossible to have such a person. These vague charities cannot be sustained unless by virtue of some peculiar law, and it is an alarming event that two millions of property are put into perpetual mortmain for the benefit of persons not even incorporated, not even a religious or mechanical society.

The municipal law of Pennsylvania consists of the law of nations, the common law of England, and some of the British statutes. The report of the judges made to the legislature in 1808, (3 Binn. (Pa.), 620,) says that parts of the statutes 7 Edward 1; 13 Edward 1; 15 Richard 2; and 23 Henry 8, commonly called statutes of mortmain, are in force in the state. 1 Dall., 67, 70, 444, 114.

The old remedy of assize was revived because the statute of Edward was considered to be in force in consequence of the report. 17 Serg. & R. (Va.), 174. The preface to the report says it was necessary to examine the whole code. But the statute of Elizabeth is not included amongst those in force. How then can it get in, unless by some act of the legislature, which is not contended?

If the statute was in affirmance of the common law, the judges would have reported it as being in operation, because the common law was itself in force. 9 Serg. & R. (Pa.), 348, 349.

The first Constitution of Pennsylvania, art. 7; art. 3, sect. 3, and 24 sect. (1 Dallas's Laws, appendix,) show that there is no power provided to carry out the king's prerogative.

[Mr. Jones then went into a minute and critical examination of the colonial records of Pennsylvania, to show that from the proceedings of the governor and assembly it was not believed that a power existed to sustain these religious charities, referring amongst other matters to the charter of the Presbyterian church in 1772.]

After the Revolution, the first case that occurred to test these principles was 17 Serg. & R. (Pa.), 88, Witman v. Lex; but the bequests in this case were good by the common law without the aid of the statute of Elizabeth, which was decided not to be in force.

2. As to the capacity of the trustee to take.

The powers of the corporation are limited, and a trust beyond those powers cannot be executed. 4 Wheat., 636; 9 Watts (Pa.), 551; 6 Conn., 304; 1 Ves., Sr., 534.

*146 If the city of Philadelphia is the trustee, the estate is in one body and the execution of the trust in another, for all the people are a part of the corporation. The head of the corporation cannot be separated from the body.

In ordinary cases, where there is no trustee, the court may appoint one; but this cannot be done here, because the trustee, being a corporation, has perpetuity, and a similar one must be selected. 4 Wheat., 28; 1 Ves., Sr., 534; Duke, 245.

A part of this devise would make it a curse to any civilized land; it is a cruel experiment upon poor orphan boys to shut them up and make them the victims of a philosophical speculation. By the laws of Pennsylvania it is blasphemy to attack the Christian religion, but in this case nothing is to be taught but the doctrines of a pure morality, and all the advantages of early impressions upon the youthful mind are entirely abrogated.

Binney, for the defendants,

(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 two-fold: 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 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.

*147 White & Brockden's History of Laws, Appendix 1, 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 forth 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 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. & R. (Pa.), 313; 14 Pet., 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 <<PoundsSterling>>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 decisions about their colonies. 2 Meriv., 143; 2 Madd. 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 Binn. (Pa.), 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?

*148 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 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 Dig., 403, tit. 12, Trust, chap. 1, sect. 89.

Also, that a corporation may be a trustee. 2 Vern., 411; 2 Bro. P. C., 370; 7 Id., 235.

Where a corporation abused a trust and was dismissed, see 3 Bro. Ch. Cas., 171, 371; 4 Ves., 453; 2 Id., 46; 1 Id., 467; 14 Id., 253; 12 Mass., 547; 17 Serg. & R. (Pa.), 89; 3 Rawle (Pa.), 170.

The cases in 12 Mass., 547 and 17 Serg. & R. (Pa.), 89, may not appear at first to sustain the doctrine, but the cases are right. That of 3 Rawle (Pa.), 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 the trust, and imply that the corporation had power to take it. This is evidence of an existing power. 4 Pet., 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 Ves., 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 estate beyond the life until the power is executed? It vests in no one. A charitable use is only a power *149 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. Wms., 146; 3 Atk., 164.

The tenure of the cestui que use is fixed; the boys of merit are to remain in the 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 Atk., 469; 4 Russ., 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 Ves., 436; 2 Atk., 328; 17 Ves., 371; 1 Sh. & L, 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 forever.

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 favor with which charities are regarded, and the motive by which they are established, spring from? The doctrine is traced up to the civil law. But where 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 'honor thy father and thy mother;' but the domestic affections are selfish, and it was reserved for Christianity to enjoin the duty of 'loving thy neighbor as thyself.' The Jewish lawyer asked who his neighbor 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 *150 done it to the least of these, ye have done it unto me.' Even in the old 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 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 Ves., 273; 1 Vern., 248; 7 Ves., 65; 17 Id., 371, that it becomes a charity as soon as uncertainty begins. Amb., 422; 5 Rawle (Pa.), 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 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 Reeves, 80; Moo., 122. The principle of these charities is also engrafted upon the old English tenures. Co. Litt., 94 b; *151 Littleton, §§ 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., 2; Co. Litt., 149 a; Brooke's Abr. part 2, Tenure, 53. Some of the early statutes recognized them.

The stat. 17 Edward 2, chap. 12, passed in 1334, related to the Knight 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 2, 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 blow 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,) endeavored to preserve 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 *152 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 but not in the former. The stat. 7 Jac., 1, chap 3, has for its object to bind out 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 Ves., 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., § 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; Perk., 563; And., 43, 108; 3 Dyer, 255 d, same in Jenk., 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, (Moo., 129,) where the use was to pray for the soul of the donor. So much of the use as was esteemed superstitious was set aside, and the rest confirmed. See also Moo., 594, (or same case in Poph., 6,) where the heir of the executor who had a trustestate recovered from the heir of the donor.

In Porter's case, 1 Co., 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 years. Duke, 360; 4 Co., 116; 8 Id., 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 Pet., 498, 431; 12 Wheat., 582; 10 Pet., 712; 2 Id., 256; 9 Cranch, 212; 4 Pet., 487; 4 Serg. & R. (Pa.), 212.

*153 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. & R. (Pa.), 307.

2. The city is in possession, and wants no remedy. If the use is good, the owner of the legal estate cannot recover. 2 Dowl. & Ry., 523; 5 Madd., 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. 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 sects 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 therefore affirmatively recommended, *154 and in such a way as to preserve the sacred rights of conscience. No one can say that Girard was a deist. 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, for example, is there to prevent 'Paley's Evidences' from being used as a school-book?

The law of Pennsylvania is not infringed.

In the case of Updegraff, (11 Serg. & R. (Pa.), 400), the court said that Christianity was part of the law. But it was Christianity with liberty of conscience to all men. This is exactly what Girard thought.

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 principles of equity jurisdiction, which protects all lawful trusts whether there be a trustee or not.

*155 In England the power of the king as parens patrioe 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 in Story'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. Cas. Abr., 198; 1 Ves., 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 & K., 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 Dall., 211, 213, 214; 1 Binn. (Pa.), 217.

In Pennsylvania, specific performance is obtained at law by cautionary verdicts. 3 Serg. & R. (Pa.), 484; And., 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 since. Duke, 135, 154, 242, 380, 519, 644; 2 Gibson's Codex, 1158, note 7; 1 Ch. Cas., 157; 2 Lev., 167; 2 P. Wms., 119; 2 Vern., 342; 3 Atk., 165; 2 Ves., 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 & R., 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. [FN11]