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Argwnent of Horace Basey.-Extracts. The charitate was declared in the Testator's Wil for the education od ris time of poor watte maie orphan, are perfectiy raid is al respects.
This great question, invoiving the largest pecuniary arpooni ikat las pertaps ever depended opoo a single judicial decision, and affecting some of its most widely d Tisd and precious interests, religioas, literary, and charitable, of all our communities, is now to be brought to the test of legal research and reasoting. There was a period of time, covering the whole coobial existence of these States, wben the validity of such uses as these, was taken for granted and acquiesced in by the people every where. There was probab. Deres a colony of E..g!sh origin, that did not regard them as both morals and legais gond, and ho.d them to be matters of conscientious duty as well as of patie policy. An Englishman of adult age, could not bave left the land of his Christian forefathers, without bringing with him a reverential regard for charitable uses, and an isbred deference for all who desired to extend and to perpetuate tiem, whatever might have been his personal practice. The great scope of their design-in tbe sustenance of the poor, the instruction of the young, and the succor of the afflicted, under the vicissitudes that man is erery where gubject to-in the cultivation of learning, and the advancement of Christian knowledge—their tendencies to consolidate and to adorn society in its progress --and their being moreover, under every shape and form, an acknowledgment, express or implied, of our duty to God, and to our neighbor, and directiy or indirectly, acts of religious worship and gratitude-obtained for them in some form, and frequently in all forms, the consent of all the colonists. But they rested upon the habits and the feelings of the people, or upon adjudications elsewhere, and not upon principles investigated and declared by our Courts : and hence it has happened, that after more than a century and a half of general adoption, the legality of charitable uses has of recent times been regarded by some persons among us as a prejudice, rather than a principle of law or equity, and as a well meaning weakness, that neither law nor equity is strong enough to support, without the sanction of legislative enactment
There is not a charitable society, nor an object of charity in Pennsylvania, nor an institution for the promotion of religion or literature, that is not to be affected by this decision. The magnitude of the estate in controversy, disappears before the magnitude of the public interests involved. It is indispensable that we look to our foundations with more than usual care.
We are told that these uses are vague and inde finite, and the attempt is made to press upon the Court the adoption of the popular notion of them, by means of popular language. In an argument before a learned court, the effort should be to speak of legal things in legal terms,—to speak of that which has been adjudicated, in the language of adjudication, and not to confound all differences, by rejecting all established distinctions. Even a bequest to charity without more, though it is general, is in no legal sense 'vague or indefinite.' It is good in England, and I trust in Pennsylvania too. The mode of administering it may be different from that of a gift to trustees for charity generally, or a gift to a more precise charity, without trustees : but it is not vague, it is not indefinite. It is comprehensive, but it comprehends nothing that has not the specific traits of charity, which I'shall endeavor hereafter to point out. General charity, if
there are no trustees, is administered in one way–if there are trustees, it is administered in another way; but nothing that is vague and indefinite can be administered at all.
If, however, any charitable use is precise and not vague, limited and not indefinite, it is the charity founded by Stephen Girard, an Orphan College for the maintenance and education of poor, while, male orphan chi’dren, from the ages of six and ten to the ages of fourteen and eighteen, in the manner and to the intents and purposes declared in his Will. It is almost perfect precision. But it must not be understood that we claim the least protection for it, on the ground of this precision, or shall offer a single suggestion to the Court, that will distinguish it in point of favor above a charity to poor orphans generally,—to poor children—to pour seamen—to poor widows, or to the members of any class of the helpless, necessitous, or afflicted of mankind, however general may be the description. A distinction upon any such ground, mistakes the source, motive, end, and objects of charity,--mixes up with its pure principle the grosser elements of exclusive rights, -endeavors to individuate the equitable interest, to fasten it in some way to the landmarks of private property—to make it the selfish thing that private property is—to require for it some characteristic that will give it the cast of personal possession, and a lawful title, by which one man may say to another, even of the same bereaved family,—'it is mine, and not yours.' The argument of the complainants demands for all charities that certainty and definiteness which are the badges of private right; and it probably will not be surrendered, until by rising up to the source of charity, it is shown that certainty in their sense, is its bane-that uncertainty, in the sense of the law of charities, is its daily bread - and that the greatest of all solecisms in law, morals, or religion, is to talk of a charity to individuals, personally known to, and selected by the giver. There is not, there never was, and there never can be such a thing, as charity to the known, except as "unknown.' Uncertainty of person, until appointment or selection, is in the case of a charitable trust for distribution, a never failing attendant. If the trust be committed to a corporation for charitable uses, it makes no difference. Corporations for charitable uses are but bodies of trustees for uncertain beneficiaries; and their charities have no attribute of greater certainty, than if the trust were given to unincorporated trustees, or given for the object generally without trustecs, when Chancery if necessary would supply them.
But where did the Roman Law get them? We might infer the source, from the fuct that Constantine was the first Christian Emperor—that Valentinian was an Arian, a sagacious, bold, and cruel soldier, but the tolerant friend of Jews and Pagans, and a persecutor of the Christians—and that Justinian, 'the vain titles of whose victories are crumbled into dust while the name of the Legislator is inscribed on a fair and everlasting monument,' obtains, with this praise from the Historian of the Decline and Fall, the more enviable sneer, of being at all times the 'pious,' and at least in his youth the 'orthodox Justinian.' We might infer it still better from that section of the code, which after liberating gists to orphan-houses and other religious and charitable institutions, 'a lucrativorum inscriptionibus,' and confining the effect of these charges to other persons, concludes with the inquiries—'Cur enim non faciamus discrimen inter res divinas et humanas ? Et quare non competens prerogativa celesti favori conservetur ?
What are pious uses? They are uses destined to some work of benevolence. Whether they relate to spiritual or temporal concerns—whether their object be to propagate the doctrines of religion, to relieve the sufferings of humanity, or to promote those grave and sober interests of the public, which concern the well being of the people at all times—all of them come under the name of 'dispositiones piä testatoris.' 2 Domat. 168, Book iv. Tit. 2, Sect. vi. 1.
They come then from that religion to which Constantine was converted, which Valentinian persecuted, and which Justinian more completely established; and from the same religion they would have come to England, and to these States, though the Pandects had still slumbered at Amalfi, or Rome had remained forever trodden down by the barbarians of Scythia and Germany. I say the legal doctrine of pious uses comes from the Bible. I do not say that the principle and duty of charity, are not derived from natural religion also. Individuals may have taken it from this source. The Law bas taken it in all cases from the revealed will of God.
What is a charitable or pious gist, according to that religion? It is whatever is given for the love of God, or for the love of your neighbor, in the Catholic and universal sense-given from these motives, and to these ends-free from the stain or taint of every consideration that is personal, private, or selfish.
The domestic relations, it is not to be doubted, are most frequently a bond of virtue, as they are also the source of some of the most delightful as well as en. nobling emotions of the heart. In the same class, both for purity and influence on human happiness, we may generally place the relations of kindred by blood or alliance, our friends and benefactors, those of whon we are a part, or who are an acknowledged part of ourselves. There is nothing in the Bible to sever any of these relations, if cultivated wisely, and in due subordination to greater duties; nor much, with perhaps an exception or two, to enjoin a special observ. ance of them. One of them has the sanction of a commandment in the second table, to make children remember their parents, who need no command to remember them: and another is defended by injunctions, against infirmities, which while they are its cement are often its ruin. All of them are deeply rooted in our nature. Instances are not wanting of their vivid influence between men whose nature is discolored by the darkest stains; and with. out any emphatic sanctions in the revealed Word, they are perhaps more than sufficiently invigorated by natural impulses, which for good or evil rarely or never sleep. The feelings which attend them are not unmixed with benevolence-nay, they are often deeply tinctured with it; but benevo. lence does not bear supreme rule among them, nor is it their sole guide and governor. It is not to be forgotten by the Christian moralist, that although the ties which bind men together in these narrow relations, are necessary to their happiness, and therefore to their virtue, the due observance of the relations themselves is not that which the Gospel meant chiefly to inculcate upon
Father and mother, son and daughter, husband and wife, master and servant, kinsmen, friends, benefactors and dependents—while such relation bind individuals together, they often break society into sections, and deny the larger claims of human brotherhood. They are an expansion, and sometimes little else, of the love of self. This is in many instances their center and their circumference. The Gospel was designed to give man a truer center, and a larger circumference; to wean him from self and selfish things—even from
selfish virtues, which are 'of the earth, earthy,'—to make the intensity of his self-love the standard of his love of human kind, and to build him up for Heaven, upon that which is the foundation of the law and the prophets, the love of God and the love of his neighbor.
Here are the two great principles upon which charitable or pious uses depend. The love of God is the basis of all that are bestowed for His honor, the building up of His church, the support of His ministers, the religious instruction of mankind. The love of his neighbor, is the principle that prompts and consecrates all the rest. The currents of these two great affections finally run together, and they are at all times so near, that they can hardly be said to be separated. The love of one's neighbor leads the heart upward to the common Father of all, and the love of God leads it through Him to all liis children. The distinction between the two descriptions of charities, the doctrinal and the practical, or as they may with more propriety be called, the religious and the social, is one, however, that Christianity can hardly be said to enforce, since all its doctrines are practical, and all the charities it enjoins are religious; but it is of some moment in the law, as may hereafter be perceived.
But who is my neighbor? It was perhaps difficult to make a Jew, a Jewish lawyer especially, whose profession was not the best in the world, to enlarge his heart-it might have been difficult for some teachers to make such a Jew understand that he was neighbor to a Samaritan, a schismatic, with whom the Jews'had no dealings:' but it was not at all difficult to make him confess, by the voice of his own self-love that a Samaritan was neighbor to a Jew. A Jew whose brother had fallen among thieves, who had stripped him of his raiment, and wounded him, and left him half dead, was not slow to confess, that he that showed mercy on him, was his neighbor, even though he was a Samaritan.
Even the disciples of the Great Teacher, the fishermen from the strand of Genesareth, who from their station, and the vicissitudes of their calling, would seem to have been more than others in smypathy with the unprotected and un. provided of the earth, were not quick to learn this great lesson. An outcast from the coast of Israel, a Canaanite, who sought relief for her demoniac daughter, though she came with the strongest claim that humanity ever makes . for sympathy and succor—a wretched mother imploring aid for her afflicted child -received from them nothing but 'send her away, for she crieth after us.' The sentiment in their hearts, their Master, preparing the lesson for them, seems to have put into words: 'It is not meet to take the children's bread, and to cast it to dogs.' But when the reply came—'Truth, Lord, yet the dogs eat of the crumbs which fall from their master's table'—the reproof of the misjudging disciples, and the restoration of the wretched demoniac, were conveyed by the same answer: 'O woman, great is thy faith, be it unto thee even as thou wilt.'
Lesson after lesson was designed to lead the Jew from the prejudices of his narrow family, to all the kindreds upon earth,' and to open his heart to even the proscribed Gentile, instead of suffering none to enter but those who held to him the personal relations, by which his own infirmities were cherished and confirmed—to lead him to imitate that celestial mercy which sends the rain upon the unjust, and 'is kind to the unthankful and to the evil,'—to impel him, in fine, to love his enemies, and to do good unto all men, as his brethren of one descent from the same Father in Heaven. 'He that loveth father and mother more than me, is not worthy of me; and he that loveth son or daughter more
than me, is not worthy of me.' ‘My mother and my brethren are these which hear the word of God and do it.' Such was the language of Christ to those who were prone to think, that the love of their own blood, or of their own nation, was the highest attainment of virtue.
The great final illustration of the principle of charity, is given as almost the last act of the ministry of Christ, when he prefigured the gathering of all nations, and the separation of one from another, as a shepherd divides the sheep from the goats. To those on his right hand the king shall say—'I was an hungered, and ye gave me meat: I was thirsty, and ye gave me drink: I was a stranger, and ye took me in: naked, and ye clothed me: sick, and ye visited me; I was in prison, and ye came unto me.' And when the righteous, unconscious of this personal ministration to his wants, say, 'Lord, when ?' the answer consummates the lesson, and leaves it for the instruction of the living upon eartlı, as it is to be pronounced for their beatitude in beaven: 'Inasmuch as ye have done it to one of the least of these my brethren, ye have done it unto me.'
It is not therefore in gifts to the beloved relation, the faithful friend, the per. sonal benefactor, the personal dependent, the known, the individuated, whether beloved for merit, from gratitude, by personal association, or in reciprocation of good offices, that we are to look for acts of charity. These have their personal motives and their personal ends. We must go out of this narrow circle, where sometimes self-love is all that kindles our emotions, and perhaps always gives to them the warmth which we mistake for a nobler fire, into the larger circle of human brotherhood—the unrelated by any nearer affinity—the naked, the hungry, the sick, the stranger, and the captive—and must give to them, in humble reverence, and in faint imitation, of that divine beneficence, that gives every thing to us. This alone, in the sense of Scripture, and in the sense of law also, is a charitable gift.
Nor is the extension of the hand to the wayside mendicant, or the administration of succor to the traveler who has just fallen among thieves near our path, or that occasional relief which feeling rather than principle prompts to the distressed who meet our eyes, a compliance with the duty which the Gospel enjoins. Provision for the day of need—accumulation for future necessity -a provident forecast for those who can have none for themselves—a preparation for our brethren under the Gospel, such as we should make for our children and brothers by blood-all these are not more the suggestion of reason, than they are the command of religion. The apostolical direction to the churches was distinct and reiterated. “Upon the first day of the week let every one of you lay by him in store, as God hath prospered bim, that there may be no gatherings when I come, whomsoever ye shall approve by your letters, them will I send to bring your liberality unto Jerusalem. And if it be meet that I go also, they shall go with me.' St. Paul himself was a trustee for charitable uses, and by his injunction and example, gave the highest sanctity to both the charity and the trust.
It is by no means in the Gospel that this provision for the helpless and unknown is first announced, though it is there that the precept has its greatest expansion and emphasis. For whose benefit was the Jewish command, 'When thou cuttest down thine barvest in the field, and hast forgot a sheaf in the field, thou shalt not go again to fetch it.' When the olive tree was beaten, for whose sake was the husbandman commanded not to go over the bouglis again? For