stead, is not a lawful amendment-is not an amendment at 1822. all, but the grant of a new corporation and a new charter. Philadelphia. Much that is properly referrible to this head I have anticipated in my observations on the first and second objec- St. Mary's

tions.

What by the terms of the charter, are the temporal rights of these pastors? They are joint tenants with the eight lay trustees of the whole legal estate of the society-they are the assignees, and representatives of the founders, and each individual of them holds an individual vested right in the franchise, the right to which, by an action in his own name, he might assert, and maintain in a Court of Law. The act of the founders, and the Legislature will have vested this right in them, and these pastors have some real interest in the management of the estate, and funds of this institution. Here the lay members have attempted to deprive them of their stipends; but those members are not permanent; at some future day, the present majority might find themselves in the minority. Men's opinions are not unchangeable, and who knows but at some future day, their presence, their representations and their votes might restore, and even add to them, On the former application, the corporation protested against these amendments, and who will undertake to say, what may be the event of some future election. The very measure that put them out at the last election, may again restore them. Such changes are not without example in elections, on a larger scale, and will continue to be the case, so long as elections continue free, and the minds of men mutable. They have a power coupled with an interest.

But it is said, the clergy ought to have no concern with the temporalities of the church. In my private judgment I might agree to this. The answer is an easy and satisfactory one. It has pleased the donors, and the donors always are considered as the founders of the charity, to think and to act otherwise, and it has pleased the Legislature to confirm it. Cujus est dare, ejus est disponere, is a maxim of the law as well applicable to private individuals, as to associations. I do not know what will become of St. Mary's Church; what of the corporation. Deprived of the church, they could not be worshippers there. Who would have the right to the church? Those claiming under the new or under the old

Case of Church.

1822.

charter?-or neither of them, but the founders and their heirs? Philadelphia. These matters ought to be considered by both parties. For it

Case of

Church.

never can be—where the founders of a church have conveyed St. Mary's it as the act of incorporation here has done, to the Roman Catholics worshipping in it-that even a majority of the worshippers can say, all this is wrong-the clergy shall have nothing to do with this estate, or concern in its management-we will manage it ourselves. Those who adhere to the old grant and charter of the founders, and of the State, might justly say, if you do not like the terms on which the grant was made, you may quit; but as for our house we will not desert it. He that gives the first possession is the founder of the charity. Jenk. 270. Pl. 28. Fitzh. Grant. Pl. 5.

This church cannot long remain in its present state. The right cannot be decided by the arm of flesh, or any spiritual arm, but by the invincible arm of the laws of the land. So much for the estate itself. But the franchise is regarded in the law as a valuable thing independent of pecuniary benefit. The charter is a contract between the State, the founder, and the objects of the charity, all of whom are bound by its terms. The contract on the part of the government is, that the property, with which the charity is endowed, shall be vested in a certain number of persons, and their successors designated by the founder, to subserve the purposes of the founder, and to be managed in a particular way. But if the alteration changes the character of the trustees, then they are not the same persons the grantors intended should be the managers. The same identical franchise that has been before granted to one, cannot be bestowed on another, for this would prejudice the former grant. 2 Blacks. 37. All immunities, offices, franchises, or other incorporeal rights, though they are not tangible property, yet are valuable in law. The owner has a legal estate in them and legal remedies to recover his rights. Mr. Cummiskey being unjustly removed, could obtain a writ of mandamus, which is a civil action, to compel the trustees to restore him to his office.

All this doctrine of corporations and the rights of trustees is fully considered and established as I have stated it in the Supreme Court of the United States, Dartmouth College v. Woodward, 4 Wheaton. I cannot distinguish this from a case where all the trustees are removed and others substitut

1822. Philadelphia.

Case of

Church.

ed, or where they are in by their own names or by their names of office. Should the clergy in St. Mary's Church get the upperhand and propose, as an amendment of the charter, an exclusion of all laymen-all would exclaim, this a most horri- St. Mary's ble usurpation. Every man would cry out, this is unlawful; not an amendment of the charter, but an infraction. Others may see a difference; to me the principle is the same, though the proposition is wilder. But we need not go from home for information on the subject of charters. Our Legislature gives an example of this kind of altering charters, and a result. In the Act of 6th March, 1789, 2 Dall. State Laws, 660, repealing that which divested the trustees of the College and Academy of Philadelphia of their franchise, and vested it in others, the trustees of the University of Pennsylvania, and deprived the faculty and teachers of their offices, and restored them to the former occupants, there is this strong Legislative declaration, that they had been deprived of them without trial by jury, legal process, misuser, or forfeiture, and the estate and rights of the corporation vested in a new corporation; and it concludes with a protestation, that all this is repugnant to justice, a violation of the constitution, and dangerous in its precedent to the rights of all incorporated bodies and to their rights and franchises.

I can consider this charter in no other light than a contract which cannot be impaired-a settlement of estates by an assurance that cannot be broken; a grant of a franchise, of which the tenants cannot be deprived, but by a forfeiture of their rights by misuser or nonuser, and that forfeiture to arise on a conviction in some cause, on a hearing by some tribunal, a body whose jurisdiction the law acknowledges-a judicial judgment of forfeiture.

What the Legislature might do by law is not the question before us, nor do I give any opinion on it. All that is the present duty of the Court, is to certify whether the proposed amendments are lawful, in the way in which they come before us. My opinion is that they are not; that there is no power delegated to this Court to alter the conditions of a trust, or private charity, or change the persons appointed to manage it by the joint voice of the grantors and the State. I have only to observe that the collision between the trustees of the College and the University terminated in a junction,

1822.

Case of St. Mary's Church.

redounding to the honour of both, and to the prosperity of Philadelphia. the institution, and to conclude with an exhortation to the members of this church to follow their laudable example and go and do likewise. For the affairs of this society cannot long remain in this state of unprofitable conflict, and it requires no spirit of prophecy to foretell, that if it is not terminated by an union, it must end in a separation.

Amendments rejected.

INDEX

TO THE PRINCIPAL MATTERS.