# Magill v. Brown

> U.S. Circuit Court for the District of Eastern Pennsylvania · April 15, 1833 · 16 F. Cas. 408

URL: https://www.frixlaw.com/law-library/cases/9299351

## Case

- **Full name:** MAGILL v. BROWN
- **Court:** U.S. Circuit Court for the District of Eastern Pennsylvania
- **Decided:** April 15, 1833
- **Citations:** 16 F. Cas. 408; 14 Haz. Reg. Pa. 305
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Baldwin
- **Judges:** Baldwin
- **Cited by:** 5 later opinions in the Frix Law Library

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## Opinion text

BALDWIN, Circuit Justice.
This case arises on the will of Sarah Zane, a member of the Society of Friends, who in the body thereof describes herself as of the city of Philadelphia. She died in Virginia, but, as it has not been questioned, we shall assume this to have been the place of her domicil at the time of her death. The law of the state must therefore govern her disposition of her personal property, as well as of her real estate situated here. 1 Bin. 336, 344 ; 3 Rawle, 318 ; 3 Pen. & W. 187, 188 .
The questions which have been made in the argument, and those which necessarily arise in the case, are of the most interesting kind; involving the capacity of the Quaker societies of this and other states to take real or personal estate by devise, without a charter of incorporation; their right to enjoy it for their own use, as a body united for the purposes of religion, charity, and education; and what now are, by.the law of the land, pious and charitable uses, for which valid donations can be made by deed or will. In referring to the history of the settlement of this state, the principles of its first settlers, the character of its founder, his systems and institutions, it would seem not a little surprising that such questions could have remained open till this time. If there are any subjects on which the law could be supposed to be settled, it would be the rights of religious societies and charitable establishments. If there was any part of the law of England which could be congenial to the spirit and policy of the colony, and likely to be adopted by a society of men who sought an asylum from persecution for religious opinion, it would be that which would afford the best protection in the enjoyment of their rights, privileges, immunities and estates as a religious society. If there were any laws which they would be disposed to leave behind them, they would be those which grew out of feudal tenures, a spirit of persecution, or an established religion. The last laws which they would introduce would be those which created a forfeiture of all land conveyed to a society incorporated for the purposes of charity and religious worship, according to their own *410 consciences, without regard to the mode of celebrating divine service as prescribed by law, or which prevent a donation for such uses from taking effect without a special license by charter or act of assembly. Such would be the natural conclusion from the known and practical principles of civil and religious liberty which have distinguished the policy and jurisprudence of this state through all time as founded on a system of “free and unlimited Catholicism” in matters of religion, of expanded benevolence in matters of charity, and equality of rights in the enjoyment of property.
These leading features are so strongly impressed on the written laws, and enter so deeply into the customs and common law of the state, as to make it impossible to mistake the character and tendency of the system in the details of its legislation, by ’ colonial authority, or the adoptiop of the statutes or common law of England. It is not conceivable that the Quaker settlers of this province should have introduced those laws of the mother country, which would incapacitate them as individuals or a religious society from taking, holding or enjoying property as a matter of right without a charter; or expose to a forfeiture to the proprietor or mesne landlord lands conveyed to them for the purposes of sepulture, religious worship, or charity; and above all that William Penn should have adopted the statutes of Henry VIII., declaring the celebration of divine service according to the rites of the Catholic church to be superstitious, and conveyances for its use illegal and void; and the statutes of mortmain, which make the enjoyment of property by a religious body dependent on the pleasure and permission of the lord of the fee; while at the same time he excludes the statute of 43 Eliz. and the mild and beneficent principles of the common law which that statute has been held to have restored.
The history of the Society of Quakers presents no instance of an incorporation. Did they adopt any rule of law, making one necessary to give them a legal capacity to purchase property? They have enjoyed it from the earliest time without a license in mort-main. Is it liable to be now seized by the state as forfeited by the purchaser? They have their own modes of worship and system of charities. Are donations for their support to be regulated by the prohibitory statutes of a foreign country, or confined to the uses specified in its laws? 2 Ves. Sr. 475. They have kindred societies in other states — do the laws of these invalidate a bequest of money to them for purposes of piety and charity? These are questions which have been made by the counsel in their objections to the devise of the lot of ground to the yearly meeting of Philadelphia, and the pecuniary bequests to the several meetings of Friends in this place and in Maryland. Virginia, and Ohio. The objections to the validity of the dispositions of this will are not founded on any statutory law of Pennsylvania, but on the English statutes of mortmain, superstitious uses, and wills, alleged to be in force in this state by usage, though not adopted by any act of assembly. The principles of the common law have also been relied on as supporting the objection-to the capacity of the parties to take, for the want of an incorporation as well as of an act of assembly, containing enabling provisions, analagous to the 43 Eliz., validating dispositions for religious, literary and charitable purposes, and giving jurisdiction to the courts to carry them into effect, as they can do in England.
The field of investigation is from its nature a broad one, and from the confined course which has been taken in discussing the law of charities in the various cases which have arisen is, in a great measure, a new one. Though there are several statutes on the subject in England, prior to the 43 Eliz., no treatise or opinion contains a condensed or comparative view of the system of charities, which has grown out of them, so as to enable us by any authority of precedent or adjudication to ascertain the definite source of the various principles which have from time to time become embodied into the general course of the law of England. Nor have the courts of the United States or of this state brought into contrast or comparison either the policy of the government of England and this country in relation to the religious establishments and rights of conscience, the general course of legislation pursued in either, or the principles of the common law independent of the statutes alluded to.
Proceeding on the assumption that the 43 Eliz. was the only foundation on which charities could be supported, in opposition to prior statutes, and that statute not being considered in force here unless re-enacted, the courts in this country have laid down principles which, resting solely on such assumption, cannot be considered as authoritative in their conclusions, if on a more thorough examination the premises on which they depend should appear to be erroneous. We trust that a review of the course of their adjudication on charities will show that it has not become so settled as to be sanctioned by the maxim of “communis error facit jus,” or that in endeavoring to extract the rules which must govern the law of charities from the constitution of the Union and this state, its statutes and usages, and the statutes and common law of England, we violate the respect due to the decisions of courts of high authority.
It is at all times proper to discriminate between the question directly presented for the deliberate consideration of a court, on which they exercise their judgment, by a solemn adjudication, and those observations which are made by way of illustration, or mere declarations of what the law is on any particular subject. The one is binding as authority, the *411 other to be respected only as a mere opinion or argument, which must have its influence, but cannot be enforced on our judgment. If the supreme judicial tribunal of the state or the Union have judicially considered the statutes of mortmain to be in force, this court is bound to take the law as settled; but if they have merely declared them to be so, without making such opinion the basis of their judgment, or have in doing so omitted to refer to the supreme law of the land which bears on the question, this court may and ought to do what a higher one would do, notwithstanding any preconceived or expressed opinion — compare the constitution with the statutes, and be governed by the result
The 3d section of the 3d article of the constitution of the United States prohibits. a “forfeiture for treason except during the life of the person attainted.” The constitution of Pennsylvania extends the prohibition to all forfeitures by attainder, or felos de se, or death by casualties. It is at least worth the inquiry whether a forfeiture in fee is incurred by an alienation in mortmain, against which no prohibition is to be found in any law of the state; in a word, whether a penal law of England has an effect which the whole power of the federal and state government is incompetent to give to a conviction for the highest crimes known to their laws. 9 Serg. & R. 343. This inquiry necessarily leads to an investigation of the common law, so as to find out whether these statutes are in affirmance or derogatory of its principles which have been made the common law of the state, so far as adopted or applicable to its policy. If they are of the latter character, then how have they become in force in Pennsylvania, and what is the evidence of their adoption by legislation or usage? As these statutes impose a forfeiture of the whole estate conveyed, the proposition that they are in force here ought to be considered as an affirmative one to be made out by those who assent, that an act lawful by the common law is prohibited by a statute. The penal laws of England have been presumed not to be in force here. The burden of proof has always been held to be on those who allege a forfeiture, by an act punishable only by statute; and it ought to be clear and conclusive, especially on subjects which affect the rights to the transmission and enjoyment of property. If there was any one subject on which the founder, the legislature, and the people of the colony, from its flrst settlement, were governed by a settled, unyielding course of policy, it was to facilitate the transmission of estates, to secure their enjoyment, and disincumber them of all restraints attendant on feudal tenures, the forms of conveyance, the ceremonies of investiture, and most emphatically to protect them from the operation of all laws growing out of an established religion, which at all interfered with the rights of conscience or the perfect freedom of religious worship. Lyle v. Richards, 9 Serg. & R. 326, 334, 359.
The charter of privileges of 1701, the colonial laws, both the constitutions of 1776 and 1790, and the laws of the state, are in the same spirit which induced the people, in their flrst acts of assuming independence and establishing government by their own authority, to prescribe the following oath to the members of the convention who formed their first constitution: “That I will oppose any measure that shall or may in the least interfere with or obstruct the religious principle or practice of any of the good people of this province, as heretofore enjoyed.” Conv. Pa. 39. The constitution was in the spirit of this oath, and declared the rights of religious societies and corporate bodies held according to the usage of the colony to be inviolable. We have, therefore, a plain rule of decision by the supreme law of the state, if the nature and extent of such usage can be judicially ascertained. The enjoyment of real estate in perpetuity by any body incorporated by a written charter, or one presumed by law from evidence of long possession and exercise of corporate franchises, is mortmain per se. If on a review of the legislation and custom of the colony before* and of the state after the Revolution, it shall appear, that their rights have been the subject of the most continued favor, and their protection is provided for in the most explicit manner, it must be deemed conclusive evidence of the general policy of the state at least, if it does not establish the utter incompatibility of any incapacity in any body of men not only to take, but to enjoy, an estate to their own use, with the whole scope and tenor both of its written and common law.
The strong constitutional position which has been assumed by the senior counsel of the respondent in this case has induced us to examine it with a degree of attention equally called for by the magnitude of the questions involved, and by the conclusions which we have felt ourselves bound to adopt; in some respects at variance with the views of the judges of the supreme court of the United States as to the necessity of an actual incorporation to give the capacity to take; and of those of this state, to enable a corporation to enjoy an estate. We think, however, that it will be found to accord with all the great leading principles and rales which have been too firmly established by themselves to be now shaken, and that their minds would have come to the same conclusion as ours have done if the same materials for investigation had been presented, to them. In reviewing the judicial history of this state, it is believed that there will be found no decision that an incorporation is necessary to give to any association of individuals the capacity of taking and enjoying an estate in perpetuity, either by the assumed name of the society, or by trustees for their use. If such a rule exists, it is only by the common *412 law as adopted liere. Neither is there any adjudged case turning on the statutes of mortmain, hy which any estate has ever been vested in the commonwealth by a forfeiture incurred in consequence of an alienation to a corporate body without license, charter or law; or any evidence that such license was ever granted by the proprietary or governor, or any public grant made with a clause of non obstante statuto, in any patent, charter, or act of assembly, under the colonial or state government; nor does the word “mortmain” appear on the statute book for one hundred and fifty years from the date of the charter to Penn. This unbroken silence would have been taken as conclusive evidence that the British statutes were deemed wholly inapplicable to the fixed policy of the colony and state, its usage and fundamental laws, if the contrary opinion had not been expressed by the judges of the supreme court of the state, and adopted by the legislature at the present session. Hence arises the importance, as well as delicacy, of the questions involved in this cause. To consider them open after the declared opinion of both departments of the government, may seem to indicate a want of respect to their authority, but when we feel convinced that there is a law of higher obligation which must guide our judgment, we are bound to follow it.
The view which we feel constrained to take of the constitutions of 1701, 1770. and 1790. all of which remain in force so far as respects the rights of property, conscience, and religious worship, is this: that all bodies united for religious, charitable or literary purposes, though without a written charter or law, are to be considered as corporations by prescription or the usage and common law of the state, with all the attributes and incidents of such corporations by the principles of the common law. and entitled to all rights which are conformable to the customs of the province. From this view it results that if the statutes of mortmain apply to bodies whose charters are in existence they apply equally to those whose charters are presumed from prescription. A brief summary of these jn-o-visions will show that- they embrace all corporations of either kind. The 9 Hen. III. c. 36, declared gifts made to any religious house to be void, and that the land given should enure to the lord of the fee. The 7 Edw. I. prohibited all alienations in mortmain under a like forfeiture. These statutes were evaded by fictitious recoveries, till the 13 Edw. I. took away their effect. A new inode of evasion was then invented by conveyances in trust for uses in mortmain, so that the profits went to religious persons. The 15 Rich. II. extended the former statutes to such uses, and to all guilds, fraternities, towns, and cities which have perpetual community, and all others which have offices perpetual, though not people of religion. Keb. St. 5, 33, 46. 181; 1 Ruffh. St. 9, 32. 100, 401, 402. The 23 Hen. VIII. c. 10, prohibited conveyances to any bodies not incorporated, for the use of churches, &c., to have obits perpetual or the continual service of a priest forever, and declared them void, but there was au express saving of the right of devising in mort-main by the custom of cities and towns corporate. Keb. St. 403, 404; 2 Ruffh. St. 171, 172. The statute of wills of 34 & 35 Hen. VIII. contained an express exception of devices to corporations. Keb. St. 562; Ruffh. St. 333, 334.
Such is the substance of the English statutes, which have been considered as the clogs upon dispositions to pious and charitable uses, which have been removed by the 43 Eliz. in England. If the question of their application to the state of things in this colony was a new one, we should deem it apparent that they were never practically extended to it. “It is the true principle of colonization that the emigrants from the mother country carry with them such laws as are useful in their new situation, and none other.” 3 Bin. 596 . That the law of charities as it rests on the 43 Eliz. is not only useful, but peculiar^' adapted to the policy of the state, is unquestioned. It is therefore difficult to account for tlie prevalence of the opinion that it is not in force, or that any statutes repugnant to its provisions, should have been considered as practically adopted. Vet such is undoubtedly the apparent tendency of judicial opinion for the last twenty-five years.
In 180S, the judges of the supreme court made a report to the legislature pursuant to a resolution calling on them to state what English statutes were in force, in which they declare “conveyances to superstitious uses absolutely void by these statutes, and conveyances to corporations, unless sanctioned by charter or act of assembly, to be so far void that they have no capacity to hold the estates for their own benefit, but subject to the right of the commonwealth, who may appropriate them at their own pleasure; in other words, that such conveyances have no validity for the purpose of enabling the corporation to hold in mortmain.” They consider them as standing on the same footing as conveyances to aliens. 3 Bin. 626 ; Leazure v. Hillegas. 7 Serg. & R. 319. 322. In M’Girr v. Aaron they declared a devise to an officiating priest and his successors, not being a corporation sole, was against the policy of the law. and void, as tending to a perpetuity. 1 Pen. & W. 51 . In the case of Methodist Church v. Remington. 1 Watts. 218, they say: “The statutes of mortmain, too, which deprive corporations of the capacity to hold,” &c., and consider the legislature as evincing “an evident jealousy of clerical monopoly,” though they refer to no act in which it had been expressed. They also decided, that a conveyance for a religious society composed of members a majority of whom resided out of the state was not good under the law of 1730; and that the trust not being sanctioned by any legislative recognition, they would not lend their aid *413 to carry it into effect. In Witman v. Lex they seem to take for granted that at common law an incorporation was necessary to give a capacity to take and hold in perpetuity (17 Serg. & R. 91), though it was dispensed with by the custom of the province. We should have felt bound by these opinions, if the court had taken a view of the constitution and legislation of the state on the subjects to which they relate, and given them a deliberate construction; but as they have not been called upon to declare the meaning of any but the act of 1780, or of the provisions of any of the constitutions, it cannot be expected that the law can be considered as settled until their provisions had been brought under judicial notice. In the case of Baptist Association v. Hart’s Ex’rs, 4 Wheat. [17 U. S.] 28, the supreme court of the United States have decided that a bequest of personal property to the plaintiffs as trustees was not valid for want of an incorporation, at the time of the devise; and the decision was approved in the case of Inglis v. Trustees of Sailor’s Snug Harbor, 3 Pet [28 U. S.] 114. This case was ruled according to the law of Virginia, in which state the 43 Eliz. had been repealed. We may therefore consider it as a case settling a question of a local rather than of a general nature. It has not, at any rate, such an application to the law of Pennsylvania as to control this case, if it should appear to be embraced in the provisions of any act of assembly or constitution of the state, or to rest on its known and recognized usage.
So far as these opinions of both courts rest on general principles affecting this case, they are also open to all rules which have been laid down in other cases by the same authority. to which it is thought best to refer before entering on a review of the general course of the law of England or of this state. The last case which has arisen in the supreme court of the state is Methodist Church v. Remington [supra]. In giving their opinion, the chief justice uses this strong language: “The decision in Witman v. Lex is full to the point that a trust in favor of an incorporated religious or charitable society is an available one.” As the statute 15 Rich. II. expressly applied to conveyances in trust, or for the use of religious persons, in mortmain, we may consider this statute as not in force in this state; so that the objections growing out of the statutes of mortmain will be confined to those of Hen. III. and Edw. I. In relation to superstitious uses, the court observe: “The present is not a superstitious use, and indeed it is not easy to see how there can be such a thing here, at least in the acceptation of the word by the British courts, who seem to have extended it to all uses which are not subordinate to the interest and will of the established church;” so that an inquiry into this subject is not closed. In M’Girr v. Aaron there were no trustees, and, though the court held the devise to an officiating priest void because he was not a corporation, yet they declared it good in ease of the congregation, though not incorporated ( 1 Pen. & W. 51 , 52), on the principle that “a gift to a charitable use shall not fail for want of a trustee, but vest as soon as the charity has acquired a capacity to take.” As the bequest in the case of the Baptist Association failed only for the want of a trustee capable at the time of the devise, though’ there was an incorporation afterwards, we cannot consider it as authority in this state, where a different principle is established. The bequest would have been good according to M’Girr v. Aaron.
In examining the decisions of the supreme court of the United States which precede and follow the Baptist Case, it appears that they have established a different principle as to devises of real estate for charitable uses, or for the use of religious societies which are not incorporated; so as to leave that case applicable only to a bequest of money or personal property, even in Virginia. In Terrett v. Taylor, 9 Cranch [13 U. S.] 43, 53, land in or near Alexandria was conveyed to two persons, the church-wardens of the parish for the time being, and their successors in office for the use and benefit of the church in said parish. The deed was held to operate by way of estoppel to confirm to the church and its privies the perpetual and beneficial estate in the land, though it was not incorporated, and church-wardens were not capable of holding an inheritance in land by succession. [Mason v. Muncaster] 9 Wheat. [22 U. S.] 455, 464. The court remark: “And in our judgment it would make no difference whether the Episcopal Church were a voluntary society or clothed with corporate powers, for in equity, as to objects which the laws cannot but recognise as useful and meritorious, the same reason would exist for relief in the one case as the other. Laws enacted for religious purposes evidently presuppose the existence of the Episcopal Church, with its general rights and authorities growing out of the common law.” The church was capable of receiving endowments of land, and that the minister of the parish was during the incumbency seized of the freehold of its inheritable property as emphatically persona eeele-siae, and capable as a sole corporation of transmitting the inheritance to his successors. [Terrett v. Taylor] 9 Cranch [13 U. S.] 45, 46, 329; [Mason v. Muncaster] 9 Wheat. [22 U. S.] 455, 464. In Town of Paulet v. Clark, 9 Cranch [13 U. S.] 329, they say: “The property was in fact and in law generally purchased by the parishioners, or acquired by the benefactions of pious donors. The title thereto was indefeasibly vested in the churches, or rather in their legal agents — [Terrett v. Taylor] Id. 49 — or representatives entitled to take the donation — [Town of Paulet v. Clark] 9 Cranch [13 U. S.] 329.” “The true legal notion of a parish church is a conse crated place, having attached to it the right of burial, and the administration of the sacra- *414 meats. Every such church, of common right, 'ought to have manse and glebe as a suitable endowment; and when there is a church actually in existence, a grant to it is in effect a grant to the parson and his successors, as an endowment to be held jure eeclesiae.” [Town of Paulet v. Clark] 9 Cranch [13 U. S.] 329; [Mason v. Muncaster] 9 Wheat. [22 U. S.] 464. The parsou has a qualified fee, but the land becomes the perpetual inheritance of the church. [Terrett v. Taylor] 9 Cranch [13 U. S.] 47, 53; [Town of Paulet v. Clark] Id. 329; Co. Lift. 341 a. b.; 2 Mass. 500 .
In Beatty v. Kurtz, 2 Pet. [27 U. S.] 580, 583, 585, the court decided that the laying out and marking a lot in the plan of a town “for the Lutheran Church” was a good and valid disposition — though it was not then organized, and was never incorporated as a religious society, but was a voluntary association, acting in its general arrangement by committees and trustees chosen from time to time; or any church actually in existence, or any grantee capable of taking. It was supported as a dedication of the lot to public and pious uses, and the enjoyment decreed to the committee of the society. The court take a ground which applies with great force to the law and constitution of Pennsylvania, as will appear hereafter. “The bill of rights of Maryland gives validity to any sale, gift, lease or devise of any quantity of land, not exceeding two acres, for a church, meeting, or other house of worship, and for a burying ground, which shall be used, improved and enjoyed only for such purposes. To this extent it recognizes the doctrines of the statute of Elizabeth for charitable uses, under which, it is well known, that such uses would be upheld, although there was no specific trustee or grantee.” In the Case of the Town of Paulet they laid down the principle that they considered appropriations or dedications of property to particular or religious uses as an exception to the general rule, requiring a particular grantee, and, like the dedication of a highway to the public. [Town of Paulet v. Clark] 9 Cranch [13 U. S.] 331; s. p. [Beatty v. Kurtz] 2 Pet. [27 U. S.] 583. In M’Connell v. Lexington, 12 Wheat. [25 U. S.] 582, they considered that the immemorial use of a spring by the people of the town, as public property, was evidence of its original dedication, and decisive against a private claim to its exclusive use. In Cincinnati v. White, 6 Pet. [31 U. S.] 436. 437, the principle of these cases was affirmed to its fullest extent, and the court add — what is very important in the consideration of this case — that “the ease of Beatty v. Kurtz [supra] did not turn on the bill of rights of Maryland or the statute of Elizabeth, but rested on more general principles of law.” [Cincinnati v. White, supra.]
To trace these principles to their source in the early statutes and common law of England is therefore in perfect accordance with the decisions of the tribunal to whose revision our opinion is subject. It is the more necessary in this case, as the general course of the law of England as to the transmission and enjoyment of property formed the law of the colony at its first settlement, and continued in force till repealed or altered by colonial authority. In ascertaining what these general principles are, it is our duty to adopt the rules of construction which have been established by the supreme court in relation to charities under the 43 Eliz., and to apply them to the laws and constitution of this state, and the other English statutes which are analogous in their provisions and subject-matter to that statute, in doing which we shall start upon premises which must lead to correct results.
The legislation of Pennsylvania will be first considered according to the rules of expounding statutes laid down in Baptist Association v. Hart [4 Wheat. (17 U. S.) 1], and those which are the principles of the common law. It is not to be denied that if any gifts are enumerated in this statute which were not previously valid, or for which no previous remedy existed, the statute makes them valid, and furnishes a remedy. That there were such gifts, and that the statute has given them validity, has been repeatedly determined. The books are full of cases where conveyances to charitable uses which were void by the statutes of mortmain, or were in other respects so defective that on general principles nothing passed, have been sustained under this statute. If this statute restores to its original capacity a conveyance rendered void by an act of the legislature, it will, of course, operate with equal effect on any legal objection to the gift which originates in any other manner, and which a statute can remove. The authorities to this point are numerous. [Baptist Ass’n v. Hart] 4 Wheat. [17 U. S.] 31; 1 Sugd. Powers, 267; 4 Vin. Abr. 479, 483; Gilb. Ch. 45; 1 P. Wms. 248; [Inglis v. Trustees of Sailor’s Snug Harbor] 3 Pet. [28 U. S.] 141; 4 Ch. R. 40.
“Statutes providing remedy for the maintenance of religion, the advancement of learning. and the relief of the poor, shall be extended according to equity, right and reason in their favor, and never against them,” or be so construed as to permit the mischief to remain and suppress the remedy. The duty of judges is to advance the remedy and suppress the mischief — to advance the public and suppress the private object. 11 Coke, 70-73b; Hob. 97, 157; 5 Coke, 14b. Statutes authorizing gifts in mortmain, and all laws in favor of public institutions, shall be favorably and benignly construed. 11 Coke, 76a; Hob. 122; Co. Litt. 99a; [Town of Paulet v. Clark] 9 Cranch [13 U. S.] 331; [Inglis v. Sailor’s Snug Harbor] 3 Pet. [28 U. S.] 140, 480; 1 Lev. 66; Dyer, 225. So of charters of the king for pious and charitable works. 10 Coke, 28a. And in all acts for the confirmation of grants by persons having power over the land the deed shall be established though it wants some circumstance necessary to *415 gire it effect, according to its tenor and purport. 11 Coke, 78a. The statutes of superstition were intended to advance and continue good and charitable uses, and affect none which are not derived out of superstitious uses, or to be distributed by superstitious persons. Moore, 129, pl. 277; 4 Coke, 105, 11, 13, 14; where the same deed contains a disposition partly superstitious, and pious and charitable in other parts, the latter are good, if not dependent on and capable of being separated from the former. 4 Coke, 104—116, and cases cited; Anders. 95-100; Cro. Eliz. 449; Wing. Max. 497; Co. Litt. 342a. Though hospitals are named in the statutes, they apply only to such as are religious or ecclesiastical, or the funds are to be devoted to purposes of superstition as specially defined and plainly prohibited. It shall not be made superstitious by construction or intendment — it must be plain, and not imaginary, and no general words shall take away good and charitable gifts allowed by parliament, which are favored in the law. Co. Litt. 342a; Hob. 120-124; Moore, 865, pl. 1194; 11 Coke, 70b 71a; Wing. Max. 497. An affirmative statute does not take away a right existing by common law or custom, as the statute of wills, which did not affect the previous right to devise. Co. Litt. 111b, 115a; 3 Coke, 35a.
A custom saved and preserved by a statute is. good against a statute. Thus lands can be held in mortmain in London without license, because there is such a custom (Cro. Eliz. 455); and the customs of London are saved by acts of parliament and Magna Charta (2 Co. Inst. 201; 4 Co. Inst 250, 253; 5 Day, Com. Dig. 20; Cro. Eliz. 248, 455; W. Jones, 251, 387). A statute authorizing an act to be done repeals a law prohibiting it; otherwise it would be a dead letter, in opposition to an established maxim that such construction shall be made of all acts, “ut res magis valeat, quam pereat,” and reverse another unquestioned one, “leges posteriores priores contraria abrogant.” [Greene v. Neal] 6 Pet. [31 U. S.] 299. A grant by the king or an act of parliament is an authority to hold the thing granted, and operates as a license dispensing with the performance of any other act required by any law against which the king may grant a license or dispensation; though none is given in terms, it per se creates an incorporation, confers suggestion, and grants a rent; so if done by a private person under the authority of an act of parliament, as the erection of an hospital. 10 Coke, 30, 25a; Plowd. 502. A clause of non obstante statuto is not necessary to save a forfeiture by the statutes of mortmain. It is inferred from the act of the king or the legislature in order to give it effect. 8 Coke, 56. Its only use is to show the king is not deceived. 4 Coke, 36a. Hence it has always been held that the statutes did not apply to grants made by the king. 15 Vin. Abr. 479, a, 2. “He shall not be intended to be misconusant, and when he licenses expressly to alien to an abbot, &c., which is in mortmain, he need not make any non obstante of the statute of mortmain, for it is apparent to be granted in mortmain, the license of the king or mediate lords operates to two intents, as a dispensation from the statute of quia emptores, and of mort-main, because their deeds shall be taken most strongly against them, and the king shall not be presumed to make a void grant.” Co. Litt. 98b, 99a; Plowd. 502; 8 Coke, 56.
Where land is held immediately of the king, he may grant a license to alien in mortmain; if held mediately, it might be made by the mesne lord, or with his consent. 34 Edw. I. c. 3; Keb. St. 71; Ruffh. St. 155. Since the 7 & 8 Wm. III., he can do it without their consent. 2 Day’s Com. Dig. 298. As tenures in chivalry had been abolished by the statute 12 Car. H., the forfeiture accruing by alienation in mortmain accrued only to the king, who may renounce by his license a right conferred on the crown. Co. Litt. 98, 99; Vaughan, 332. The effect of a license in mortmain is not to give a capacity to a corporation to take or hold in mortmain. Conveyances in mort-main were good at common law. Co. Litt. 98, 99; Vaughan, 356. A grant in frank-almoigne placed the lands in the hands of bodies which never died. The estate became dead as to the king or mesne lords, of whom they were holden, yielding neither escheats, wardships, reliefs, or other benefits. Such grants were always good by deeds of private persons before the statutes, or by title of prescription, and are now good by the grant of the king. Litt. §§ 141, 142; Co. Litt. 98, 99; Co. Litt. 2b; Terms of the Law, 294; Plowd. 293; 6 Coke, 17a. Notwithstanding the statutes, the estate vests by the conveyance. 7 Serg. & R. 320. They are founded on the capacity of the grantee to take, so that wherever they apply the conveyance would enable a corporation to hold at common law for its own use; for if the estate did not vest, it would remain in the hands of the grantor or his heirs, as in the case of a conveyance to superstitious uses, which are merely void without incurring any forfeiture by the statutes of Hen. VIII. and Edw. VI. The license therefore is only an exemption from the penalty of the statutes. Co. Litt. 52b. It restores an interest. 1 Freem. 117 . It is an authority coupled with an interest, enabling the grantees to acquire and enjoy an inheritance to their own use, without incurring the forfeiture, and by a renunciation of the rights given by the statutes, leaves the estate in their hands as if they had never been passed (2 Day’s Com. Dig. 297, b, 3; Fitzh. Nat. Brev. 222, 495, 500; 4 Co. Inst. 135; Co. Litt. 99a; Vaughan, 333, 356); and operates in favor of a society or body not incorporated by a charter (Vaughan, 351, 352; 7 Coke, 35b). which is conclusive to show its previous capacity to *416 take. All that can be required, then, to irire the same capacity to bold as to take, and make the right to enjoy as perfect as to take an estate, is any act of the party to whom the forfeiture accrues, which is in terms, or by its legal operation, a renunciation of a right conferred by law, which binds him and protects the estate from the assertion of his claim under the statutes; according to the established principle that subsequent laws abrogate prior ones, inconsistent with them, -without any repealing clause, and will produce the same effect as a license in mortmain. It is admitted that the king is bound by all acts of parliament in which he is named, so that he can exercise no power by statute; prerogative, or tenure, in derogation of any right protected or authority conferred by the statute; but, generally speaking, he is not bound unless its provisions extend to him. subject to these exceptions. All statutes which provide profitable remedy for the maintenance of religion. the advancement of good literature, and the relief of the poor (11 Coke, 71b; 5 Coke, 14a. 14b). which suppress wrong and provide a remedy for a right (2 Co. Inst. 142. 69. 359, 681), or tend to perform the will of a donor or founder (11 Coke. 72a; 5 Coke. 14. 15; Plowd. 246; 3 Atk. 147), bind the king, though not named. His claims to lands by escheat, forfeiture or wardship are subject to all rights existing before they came to his hands. The law gives him a better remedy, but no better right, than the subject from whom the land came to his hands (2 Co. Inst. 573; 2 Ves. Sr. 290. 297; Hardr. 69. 469); and the appropriate courts were authorized by the statute — 33 Hen. VIII. c. 39; Keb. St. 555: 2 Ruffh. St. 324 —to decide on the rights of a subject, in a controversy between him and the king, according to equity and good conscience, as between subject and subject (7 Coke. 19b; Hardr. 27. 176. 230. 502; 4 Co. Inst. 190).
These are the principles which have given to the 43 Eliz. its powerful effect; though it contains no repealing clause, license or non obstante statuto. yet. by universal consent, it has been held to repeal the statutes of mortmain, the exceptions of corporations in the statute of wills, and to restore the common law in all eases embraced in its provisions. or which can be brought within them by the most liberal and benign construction. 1 P. Wms. 248; Finch, Prec. 16; Gilb. Eq. 137; 2 Eq. Cas. Abr. 191; [Inglis v. Trustees of Sailor’s Snug Harbor] 3 Pet. [28 U. S.) 141. These principles are admirably condensed by the supreme court in [Baptist Association v. Hart] 4 Wheat. [17 U. S.] 31, and are those by which we must consider the legislation of Pennsylvania on the same subjects. We must hold its law to bind the state, and to dispense with the forfeiture accruing to it by an alienation in mortmain, if a similar law in England would bind the king. The prerogative of a republican state cannot be deemed, in a court of justice, more sacred than the jewels of a crown; or the rights of its citizens, individually or collectively, to the enjoyment of property, to be placed on a less permanent foundation than those of the subjects of a monarchy. Nor can corporations be subject to disabilities here from which they are exempted by the general course of the law of England, between the spirit and policy of which, and that of Pennsylvania, there will be found a most marked difference in this respect.
In England there has always been a jealousy of their rights to hold property; here they will be found to have been favored and protected by express provisions ,in the constitution and laws, while there is an entire absence of any restriction on their capacity to take or enjoy estates. There the effect of statutes has been to remove disabilities interposed by former statutes, which abrogated common law rights; here laws have been passed in affirmance of its principles, and they have been embodied in a supreme law. There courts have gone to the extent of their power, to rescue charities from the intolerant spirit of the times; here their duty is to further the benevolent policy of the people and legislature as evidenced in all their acts. From the first settlement of the province, we find that the uniform tenor of its laws has been to encourage all alienations of property, and to confirm its disposition, in every mode known to the law. The act of 1705 confirmed all sales of land made under the laws of the province, and declared that no deed, grant or assurance should be held defective on account, of any want of form, of livery of seisin, attornment, misnomer or misrecital, but shall be good and effectual. 1 Dall. Laws, 51, 53; 1 Smith Laws, 31. This law has always been in force. The act of 1711 confirmed all grants from the proprietor to any person or persons, bodies politic or corporate, to hold the same for such estates and uses as they had been sold or disposed of, notwithstanding any defects therein, and shall be expounded most beneficially for the grantees, according to the words, tenor and true meaning thereof. 1 Dall. Laws, Append. 39, 40. This law was repealed in council in 1713. but its principles have ever been respected. The law of 1705 declared that all wills whereby any lands were devised should be good and available in law for granting, conveying, and assuring the lands devised and chattels bequeathed. 1 Dall. Laws, 53; 1 Smith, Laws, 33; 1 Dall. Laws. Append. 26. 36. The law of 1742 gives a remedy for the recovery “of any legacy or bequest of any sum of money” to any person or persons. Miller. Laws. 130; 1 Dall. Laws, 449, 631. Neither of these laws contain any exception of corporations. The rights of conscience were declared inviolable by the charter of privileges of 1701, granted by William Penn to the people of the colony. No person who lived quietly un *417 der the government and acknowledged one God, should be in any case molested, or prejudiced in his estate, because of his conscientious .persuasion (1 Dall. Laws, Append. 8, 10); and liberty of conscience was secured by a law approved in council (1 Dall. Laws, 43, 44). In 1712 an act was passed empowering all religious societies of Protestants within the province to purchase and hold lands for burying grounds, houses of worship, schools and hospitals; and, by trustees or otherwise, as they shall think fit to receive and take grants and conveyances for the same, for any estate whatever for the uses aforesaid. All sales, gifts or grants to such societies, or any persons in trust for them, were ratified and confirmed according to their tenor and meaning, and of the parties concerned. Gifts to the poor of these societies, or for their use, shall be employed only for the charitable uses for which they were given, according to what may be collected to be the true meaning of the donors or grantors, notwithstanding any failure in these gifts, grants or bequests. Bradf. Laws, 160. This law was repealed in council, twice enacted, and as often repealed. In 1710 the judges of the county court were made a court of equity, authorized to proceed according to the rules and practice of the high court of chancery of Great Britain, and an appeal was given to the supreme court, with power to decree as may be agreeable to equity and justice. Bradf. Laws, 103, 120. Though this law was repealed in 1713, and courts of chancery discontinued in 1736, the rules and principles of equity have always formed part of the common law of the state.
The sixth article of the charter to Penn provided, that the laws for regulating and governing property within the province, as well as for the descent and enjoyment of lands and goods and chattels, should be and continue the same as they should be for the time being, by the general course of the law of England, till the same should be altered. 1 Dall. Laws, Append. 3. The preamble to the act of 1718 recites that it is a settled point, that as the common law is the birthright of English subjects, so it ought to be the rule in British colonies. But acts of parliament have been adjudged not to extend to these plantations, unless they are particularly named in such acts (1 Dall. Laws, 129, 133); or, as has often been declared by the supreme court of the state, unless they are convenient, adapted to the circumstances of tlie colony, or have been in force by adoption, usage or long-continued practice, in courts of justice. [Morris v. Vanderen] 1 Dall. [1 U. S.] 67; [Respublica v. Mesca] Id. 74; 3 Bin. 596 , 597; 1 Dall. Laws, 722. After repeated attempts to pass a law in favor of religious societies which would accord with the spirit of the colony, one was finally approved in council. The act of 1730-31 confirmed all sales, gifts and grants of land to any persons in trust for the use of any protestant religious society, for sites of churches, houses of religious worship, schools, almshouses and burying-grounds, made before the law. It also contained a provision which made it lawful in future, for any such society within the province to purchase, take, receive by gift, grant or otherwise, for the above specified uses and purposes, and for any estate whatsoever, and to hold the same for the said uses in fee, provided, that they should not take land for their maintenance or support, or for any other uses than those specified. 1 Dall. Laws, 270-273.
The constitution of 1776 declared, in the first section of the bill of rights, “That all .men have an equal right to acquire, possess and protect property;” and in the eighth, “That every member of society hath aright to be protected in the enjoyment of life, liberty and property.” 2. “That all men have a natural and unalienable right to worship God according to the dictates of their own conscience and understanding." 3. “Nor can any man, who acknowledges the being of a God, be justly deprived or abridged of his civil rights as a citizen, on account of his religious sentiments, or peculiar mode of religious worship, and that no authority is or ought to be vested in any power whatever, that shall in any case interfere with, or in any manner control the rights of conscience in the free exercise of religious worship.” In the frame of government (section 45): “And all religious societies or bodies of men, heretofore united or incorporated for the advancement of religion or learning, or for other pious and charitable purposes, shall be encouraged and protected % the enjoyment of the privileges, immunities and estates which they were accustomed to enjoy, or could of right have enjoyed under the laws or former constitution of the state.” Section 46. “The declaration of rights is hereby declared to be a part of the constitution of this commonwealth, and ought never to be violated on any pretence whatever.” 1 Dall. Laws, Append. 55, 60; Conv. Pa. 55, 64.
The first law passed, on the change of government, declared the province laws in force till altered or repealed; also the common law, and such parts of the statute laws of England as had been before in force, — “And so much of any law or act of assembly as declares, orders, directs or commands any matter or thing repugnant to, or inconsistent with, the constitution, is hereby declared not to be revived, but shall be null and void, and of no force or effect.” 1 Dall. Laws, 722. The constitution of 1790, in article 7, § 1, provides, “That the legislature shall, as soon as may be, provide by law for the establishment of schools throughout the state, in such manner that the poor may be taught gratis.” Section 2. “The arts and sciences shall be promoted in one or more seminaries of learning.” The 44th section of the old constitution contained similar provisions, though not so full. Section 3. “The rights, privileges, *418 immunities and estates of religious societies and bodies corporate, shall remain as if the constitution of the state had not been altered or amended.” The first three sections of the bill of rights are, in substance, the same as in the old one. The third concludes — “and that no preference shall ever be given by law to any religious establishment or modes of worship.” Section 20. “To guard against the transgression of the high powers which we have delegated, we declare that every thing in this article is excepted out of the several powers of government, and shall for ever remain inviolate.” In the first clause of the schedule it is ordained. “That all laws of this commonwealth in force at the time of malling the said alterations and amendments in the said constitution, and not inconsistent therewith, and all rights, actions, prosecutions, claims and contracts, as well of individuals as of bodies politic, shall continue as if the said alterations and amendments had not been made.” 3 Dall. Laws, 32, 36. These provisions, and the law which immediately followed the adoption of the constitution, are a direct negative on the existence of any spirit of policy adverse to corporations.
In 1701. the act was passed “to confer on certain associations of the citizens of this commonwealth, the powers and immunities of corporations, or bodies politic in law.” The preamble recites the reasons to be the saving time to the legislature in enacting laws to incorporate private associations, and the convenience of individuals desirous of incorporation — and the law provides: “That when any number of persons, citizens of the state, are associated, or mean to associate for any literary, charitable or religious purpose, they are empowered to obtain a charter of incorporation, subject only to the following conditions: To state in writing the objects, articles and conditions of their associations, and if the attorney general and the supreme court shall certify their opinion that they are lawful, the governor shall order it to be enrolled; and the persons associated become an incorporated body in law and in fact; to have continuance by their corporate name and title. They are authorized to execute the usual corporate powers, and to make by-laws and ordinances, provided they are not repugnant to the constitution and laws of the United States, of this state, or to the instrument on which the corporation was established. The corporations and their successors shall be able and capable in law, according to the terms and conditions of the instrument on which they are established, to take and hold lands, money, goods and chattels given them, according to the articles and by-laws, or the will of the donor, provided the clear income does not exceed five hundred pounds yearly.” “And, whereas, bequests and legacies may be made to public institutions of which they may not derive the benefit intended, from a want of information,” it is directed, that “when a will is brought to the register’s office, to be recorded, which shall contain a bequest or legacy to a public incorporate body, he shall give them notice within six months, of the nature and. amount of the legacy, and the name of the executor.” 3 Dall. Laws, 40, 43. The law of 1818 enacts that where any lands are holden in trust for any religious society, or for any number of persons for the purpose of public worship or schools, or to be used as a burying-ground. or for charitable purposes; or where any estate of a personal nature, is or may be vested in any person or persons, to be applied by them to any religious, literary or charitable use or uses, and the trustee or trustees neglect or abuse such trust or trusts, the supreme court, or court of common pleas, on complaint made, may call on the trustees to answer; and if, on hearing, the court is satisfied that the trust has been neglected or abused, may and shall remove the trustees, and appoint others in their place, who shall be vested with the rights and powers of the former trustees, and give such security as is required. Section 2. The court shall have the power and jurisdiction of compelling the trustees to account before the court or auditors. Purd. Dig. 167; 7 Smith. Laws, 43, 44. This law was followed by the act of 1825, “To prevent the failure of trusts.” The supreme court is authorized to grant relief in equity in all eases of trusts, so far as regards the appointment of trustees, either in consequence of the death, infancy, lunacy or other inability, or where a trustee renounces or refuses to act, or one or more dies, or becomes non compos, and a joint action is requisite, and to compel a conveyance of the legal estate, when the trust has expired. On the application of any person interested in the execution of the trust, the court may appoint a trustee, having regard to the objects of the trust as fully as a court of equity can do. and the rights of the former trustee shall vest in him; on the application of trustees, the court may remove them and appoint others. The act of 1828 confers the same powers on the courts of common pleas, district and circuit courts. Purd. Dig. S5S-860.
Prom this summary of the legislation of Pennsylvania, it appears to have partaken of the spirit of its successive constitutions, and to have been constantly progressive, in the completion and perfection of the system of its founder, each succeeding law being more liberal in its principles, and more expanded in its provisions. The principles of the charter of Penn continued in force and protected all religious societies in the enjoyment of their rights of worship and property. in their houses of devotion, after the repeal of the act of 1712 by the council, and the passage of the act of 1730, as before. In 1733-34, Governor Gordon informed the council that a house had been erected in Walnut street for the exercise of the Roman Catholic religion, in which mass was openly *419 celebrated, contrary to the laws of England, particularly to the statute of 12 Wm. III., which extended to the colonies. The council were of a different opinion, and declared that the Catholics were protected by the charter of privileges and the law concerning liberty of conscience; but they referred the subject to the governor, that he might consult his superiors at home. No other proceedings however took place. Gord. 216. This opinion of the council accords with the declaration of William Penn to the members of the assembly, in 1701, “That he had justly given privileges the precedency of property as the bulwark to secure the other.” 2 Clarkson’s Life of Penn, 203. It was a rule of property, and the basis of the usage and common law of the state. The opinion of the council was the practical exposition of the charter, as understood and acknowledged, of which there cannot be a stronger case than the one that occurred. The 11 & 12 Wm. III. c. 4, prohibited the celebration of mass in any of the dominions of England, under a penalty of perpetual imprisonment. 4 Ruffh. St. 41. If this statute included the colonies, it was repealed by the charter; if it did not, there was no law professing or attempting to interfere with it as a fundamental law of the colony.
The list of laws rejected by the king in council shows the constant struggle between the policy of the colony and mother country (Hall & Sellers’ L. 21, 57, 67, 99, 125, 193, 199, 276; Miller’s L. 16, 74, 158), which ended only with the Kevolution. The usage continued, in despite of the efforts of the king and council to prevent it from having the sanction of the law, and the provisions of the constitution were as broad as the usage. Its phraseology is adapted to the inconveniences which existed, and its provisions afford a remedy commensurate with the mischief arising from the want of a legal sanction to rights indispensable to the enjoyment of practical liberty of conscience, as a bulwark to property. In the Case of Cedar Springs Congregation, the trust did not depend on the enabling provisions of the statute, but on the custom of the province, as stated in Witman v. Lex [supra]; Methodist Church v. Remington, 6 Bin. 59 [ 1 Watts, 218 ]. The evidence of this custom appears in all the acts for granting charters, and in the law of 1791, in relation to the lots held by the Quaker societies in Front street, and at the comer of Fourth and Arch streets. 3 Dall. Laws, 46, 47. The proceeding before the council in 1734 is unequivocal evidence of the claim of right by the Catholic societies, according to the usage under the charter of' 1701; so that we have from the most authentic sources full evidence of the existence of a custom and usage, expressly saved and preserved by the constitution of 1776, which operates not only prospectively, but refers by express terms to the former constitution of 1701, so as to make the usage of the same force from that time, as it would have had, if the state had been then independent of the mother country, as she was in 1776. Being saved by the supreme law, the custom had the same force as the law itself, and stood on the same basis as customs saved by Magna Charta, according to the rules of law before laid down.
The constitution of 1776, then puts the rights which could be enjoyed by the previous custom of the province, on the same footing as if they had been defined in detail in the 45th section, and the present constitution makes them perpetual. If any additional sanction could be given to them by human authority, it will be found in the first amendment to the constitution of the United States. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This extends to the judicial as well as legislative departments of the government, and annuls all jurisdiction over the subject matter, past or future. [Marbury v. Madison] 1 Cranch [5 U. S.] 174-179; [Bingham v. Cabot] 3 Dall. [3 U. S.] 382. If the rights of a religious or literary society are derived from a contract or grant, no state law can impair their obligation, and the supreme court have placed them under the same constitutional protection as those of individuals. [Terrett v. Taylor] 9 Cranch [13 U. S.] 45; [Mason v. Muncaster] 9 Wheat. [22 U. S.] 454; [Society v. Town of New Haven] 8 Wheat. [21 U. S.] 480; [Dartmouth College v. Woodward] 4 Wheat. [17 U. S.] 624. To deny to bodies united without a charter any rights of property which could be enjoyed by a corporate body, would be in direct opposition to both the constitutions of the state and union, and the custom of the province. “Incorporations were almost unknown; yet to all sorts of pious and charitable associations, in every part of the province, valuable bequests were made by those who were ignorant of the niceties of expression necessary to accomplish the object at common law. Nothing was more frequent than bequests to unincorporated congregations, without the intervention of trustees; and even when there was a corporation, it frequently happened that the corporate designation was mistaken, or the trust vaguely defined. Notwithstanding which, the testator’s bounty was uniformly applied to the object.” Surely a usage of such early origin and extensive application, may claim the sanction of a law, resting, as it does on the basis of all our laws of domestic origin, the legislation of common consent. 17 Serg. & R. 91, 92. The same principle is adopted in all governments. A usage or custom is presumed to have had its origin in a law once in existence, and lost in the lapse of time, the evidence whereof being by prescription, that supplies the place of the written law, which is taken to have been as broad as the usage. ' The law presumed from a custom, has the same force as one appearing on the rolls of parliament— *420 the only difference is in the mode of proof; and the rule that a custom shall not prevail against an act of parliament unless it is saved and preserved by a statute. 3 Dow, Parl. Cas. 112; Austruther 614; 1 Dow, Parl. Cas. 322. The supreme law of England and the states of this Union which have no written constitutions of government, is proved only by legislative usage, which is the evidence of their constitution and supreme law. [Calder v. Bull] 3 Dall. [3 U. S.] 400; [Wilkinson v. Leland] 2 Pet. [27 U. S.] 656, 657; [U. S. v. Arredondo] 6 Pet. [31 U. S.] 714, 715. On whatever subject a known and recognized usage exists, it forms the law of the case, and controls all affirmative statutes, and the rules of the common law — as a general or local law, according to its nature. [U. S. v. Arredondo] Id. 715, and cases cited. The reason is obvious — it is founded on a law presumed from the prescription. This presumption is not that such a law ever, in fact, existed, but “it is adopted as a general principle, to take the place of individual or specific belief.” 12 Ves. 265, 266; 10 Johns. 380 ; [Prevost v. Gratz] 6 Wheat. [19 U. S.] 504. Though the party claiming by prescription produces his title, and it is worth nothing, the court will direct the jury to presume another grant subsequently. All shall be presumed to be done, which shall make the ancient appropriation good, and the right shall be presumed from the prescription, if it could have had a legal beginning. 12 Coke, 5; Cowp. 109, 110. The same rule applies to the franchises of a corporation (4 Mod. 55; 1 Saund. 345; 1 Rolle, Abr. 512), “for whatever may commence by grant, is good by prescription.” Where possession has been long held under a claim of right, to the exclusive enjoyment of the lands of the crown, a patent, charter, or grant of the king will be presumed. 1 Dow. P. C. 322. The same rule is applied in this country, — 14 Mass. 534 .— though the possession was taken and held under a defective title, — [Society v. Town of Pawlet] 4 Pet. [29 U. S.] 506, 507; [Jackson v. Huntington] 5 Pet. [30 U. S.] 439, 440. The principle has been applied in Pennsylvania to a religious society, which has been long in possession of a piece of ground, on which they had erected a church, used it for public worship, and occupied an adjoining piece for a burial-ground, and another piece for the free passage of the congregation, and the accommodation of horses and carriages, according to what the supremo court declared the common usage. This possession was held to be sufficient to enable the society “to recover in ejectment, and sufficient for a presumption, that the commonwealth had granted the land to the predecessors of the plaintiffs, or made a promise of a grant which would establish a right of pre-emption.” Mather v. Ministers of Trinity Church, 3 Serg. & R. 510, 511.
Either presumption is sufficient for all the purposes of this case. The only difference between a grant and a pre-emption is the payment of the purchase money, which must precede the formal consummation by patent; but when paid, the right to a patent, and the enjoyment of the estate against the commonwealth is complete. We may now assume these principles to be settled, that usage and customs have the force of laws — that those which are saved and presen ed by the constitution of this state are its supreme law — and that rights declared in the constitution, or which have been, or could be enjoyed according to customs or usage, saved and preserved, neither depend on legislative discretion, nor can be impaired, much less forfeited, by legislative power. It follows, that no charter can be requisite to give a capacity already existing by usage, or asserted in the bill of rights or constitution, or a dispensation from a forfeiture, which no law was competent to enforce or prescribe. Hence, the course of the legislature has been, in granting special acts of incorporation to religious, literary and charitable societies, strictly in the spirit of the constitution, to superadd to their constitutional rights, the privileges, franchises and iinmu-nities of corporations, to confer the powers of corporate bodies, “to further their objects and charitable designs,” to put all religious societies on the same footing, as to the encouragoment and protection afforded by the constitution (Bradf. Laws, 11, 23, 52, 89; Laws 1790, p. 285) by imparting to them such powers as would enable them to manage their corporate concerns, and enjoy their corporate property by their own by-laws and officers, and to assert their rights in their corporate capacity; not to give the capacity to take property, nor to release it from the forfeiture of mortmain. Charters were given to Catholic societies, “to enable them to manage the temporalities of the church, as fully as any other religious society could do.” Laws 1789, pp. 456. 532; [Terrett v. Taylor] 9 Cranch [13 U. S.] 49; [Town of Pawlet v. Clark] Id. 326. 327. A lottery was granted for the benefit of the Hebrew congregation, in order to save their property from sale by execution. The preamble contained this recital — “And whereas. it is just and proper that all religious societies should be protected, so far as is consistent with the principles of the constitution.” Laws 1790, p. 310; 2 Dall. Laws. 817.
In most of the laws granting charters, there is a recital to this effect, “that it is just and right, agreeably to the true spirit of the constitution, that the prayer be granted;” or, “that this house is disposed to exercise their powers for the encouragement of all pious and charitable uses.” Bradf. Laws, 37, 223, 407; Laws 1789, pp. 189, 198, 225, 285. They are retrospective to the property held by the society, before the incorporation, in some cases by deeds in trust for their use; in others, to the society by their name of association only, of which there are more than thirty instances in Bradford’s Laws, which fully establish the fact of the universal usage throughout the state, for all religious societies to enjoy estates *421 without actual incorporation. What expresses the sense of the legislature most unequivocally is, the law of X7S9, which, after reciting the 45th section of the constitution, declared so much of the law of 1779, relating to the college and charitable school of Philadelphia, as was repugnant to the charter from the proprietor, to he void, on the ground “that the charter gave them rights which were entitled to encouragement and protection in the free enjoyment and exercise thereof, in conformity to the will of the donor, in the same manner as it could have of right occupied and enjoyed the same under the former laws and constitution,” and that the law was “repugnant to justice, a violation of the constitution, and dangerous in its precedent to all incorporated bodies, and the rights and franchises thereof.” 2 Dall. Laws, 650, 651. When such is the fact of the constitution, it certainly could not be the law of the state, that bodies united or incorporated, needed any other protection for their rights, privileges or estates. They could be submitted to no other test than usage; and though the legislature could not be coerced to grant an incorporation, they could not infringe any right which could be enjoyed under the constitution. They might refuse them the franchises necessary to transmit property by mere succession, and to govern the society by corporate officers and bylaws; but as all the individual members were capable in law of acquiring it, no power could take it from them.
The inhabitants of a town may take in succession by a grant to tljeir singular heirs, a private person may build and endow a house for a school, an hospital, a church, or abiding houses for the poor, without incorporation: but he could not, by his own grant, give it corporate franchise of succession. 10 Coke, 26, 27; 2 Co. Inst. 202; [Town of Pawlet v. Clark] 9 Cranch [13 U. S.] 329. The rule of the common law is recognized and well illustrated in the preamble to the 39 Eliz. c. 5, for the erection of hospitals, &c., by private persons, — the reason for which is declared to be, “understanding and finding that such good law has not taken such good effect as was intended, by reason that no person can erect or incorporate any hospital,” &c., “but her majesty, or by her highness’ special license, by letters patent in that behalf to be obtained.” The act then authorized the creation of incorporations by the deed of the founder enrolled in chancery, without any act of the crown, with full corporate powers and franchises and to make any bylaws not repugnant to the laws of the kingdom. Keb. St. 921; 2 Ruffh. 687, 688. This statute was evidently the pattern for the act of 1791, as appears by the title, the preamble, and the enacting clauses. Neither contain any restrictions on any unincorporated societies or bodies; their provisions are remedial, in order to facilitate the enjoyment of charitable donations, and the furtherance of charitable objects, by corporate franchises; to enable an individual to do what he could not do without a law; — to give a private deed the effect of a public grant, in order to complete the pious and charitable work by the charter of the donor or founder, without a special application to the crown or assembly. 10 Coke, 25-34; [Terrett v. Taylor] 9 Cranch [13 U. S.] 49. Both laws are founded on an existing right to make the donation; and if the right of property had not been understood to have been fixed and settled, the legislature would never have interfered to secure its enjoyment in perpetuity by succession, as a continuing corporate franchise with no other limitation to the power of making by-laws, than the laws of the land, the will of the donor or founder, and the articles of association; placing the incorporation on the authority of parliament, in England, and in this state making it a contract or legislative grant, the obligation of which cannot be impaired by the state.
All the analogous legislation of England is bottomed on the right of private persons, singly or associated, to take and hold estates of inheritance by apt words of grant to themselves and their heirs, which is a common law right of all subjects who are under no legal incapacity. In this respect the law of both countries is the same; the only difference between them consists in two particulars: — 1. In England, those persons who have devoted themselves to religion, withdrawn from the world, and entered into holy orders, are not deemed in law to have any civil existence until they have acquired the capacity of natural persons by the removal of the disabilities arising from their profession and the restoration of their original. right. In this state, there is no such disability. The bill of rights declares it to be the natural and inherent right of all men to acquire, possess and enjoy property, and the constitution protects all members of society in their persons and estates. No common law disability, therefore, can obstruct the vesting of a constitutional right, and as no law can take it away, no charter is necessary to confer it, or to restore what has not been relinquished or lost. 2. In England, there are statutory disabilities on corporations, whereby they are less favored than individuals or bodies not incorporated; but, in this state, they are subject to no restraints, and in the constitution are placed on the same footing of protection as private persons or bodies united without a charter — there is of course no necessity of any law to repeal a statutory disability, or of a license by any subordinate authority, to perfect a right conferred by a supreme law. If an act of parliament had contained the same provisions as the constitution of this state, and the statute of 34 & 35 Hen. VIII. had contained no exception for corporations, there could have been no doubt that any religious society could have taken an estate in fee without a charter, and enjoyed it in mortmain without a license. There can *422 be no clearer evidence of the common law right, than the enactment of statutes to take it away, nor is any rule better established, than that an exception of a particular case is an admission that the case would have been embraced in the law or constitution, if no exception had been made. [Gibbons v. Ogden] 9 Wheat. [22 U. S.] 207; [Brown v. State of Maryland] 12 Wheat. [25 U. S.] 436-438.
The application of this rule to the jurisprudence of this state will furnish a solution of all the difficulties which have attended the investigation of the law of charities, and lead to results which cannot be erroneous. The reason of the law is the law itself, and we have only to look to the reasons which call for an incorporation in England for. the want of an act of parliament removing the disabilities of religious persons, and to bear in mind that the effect of the constitution must necessarily be that here ecclesiastics or persons in holy orders have a capacity to purchase, which is denied to them by the policy of the common law. Hence arises the necessity of an incorporation by charter or prescription, to give them the capacity of natural persons, by removing the disability arising from their being professed men of religion, as monks, friars and canons, who are deemed dead persons in law; but when one of them becomes a bishop, an abbot, &c., he is the head or sovereign of the house, having a secular capacity to purchase and hold land, through whom the monks or the convent become as natural persons, and remain so while there is a sovereign or head. A grant to an abbot and his monks, or to the abbot and convent, is good, and vests the title in perpetuity. If the grant is made while there is a vacancy in the head or sovereignty, the fee remains in abeyance, but vests whenever the vacancy is filled. Perk. §§ 3, 51, 55; Litt. §§ 443, 655; Co. Litt. 263, 346b; [Terrett v. Taylor] 9 Cranch [13 U. S.] 47; [Town of Pawlet v. Clark], Id. 329; [Beatty v. Kurtz], 2 Pet. 27 U. S.] 580. The reason why a giant to monks or to a convent, who have never had a head or sovereign by charter or prescription, is bad, is “that when a man taketh lands or tenements by purchase he ought to be of ability to take the same when it falleth to him by purchase.” Perk. § 505. Monks have not this capacity, because they are all dead persons in law; but the abbot, who is the sovereign, &c., and this by reason of the sovereignty, for otherwise he should be but as one of the other monks of the convent. Co. Litt. § 655; Id. 345b. And the grant cannot take effect, though a corporation was made afterwards. 2 Coke 51b; Hob. 33; 8 Vin. Abr. 56, H; Perk. §§ 3, 4; Co. Litt. 2a, 3a. The reason of this rule shows that it is confined to grants to persons who have no personal capacity or civil existence. It cannot apply to natural persons, who have a common law right, guarantied in this state, and declared inviolable, as to whom a charter could have no effect except to confer some corporate franchise which was not of right by law. There is no rule of the English law which requires a charter to enable a society or body of capable persons to take and hold property'in fee by proper and apt words of inheritance. Any opinion to the contrary must be founded on the misapplication of the foregoing rule, as is evident from the cases referred to by the counsel in the argument of the case [Baptist Association v. Hart] 4 Wheat. [17 U. S.] 1; and in not discriminating between the right of holding an estate of inheritance with and without proper words to convey it, and between the effects of a deed which transmits from ancestor to heir, or a charter which passes it from predecessor to successor. A grant to the commonalty, parishioners, inhabitants or good men of a place (Co. Litt. 3a), the commoners of a waste (Shep. Touch. 230, 237), the people of the county of O., or to associates, being a settlement of Friends at S., does not enable them to hold an inheritable estate without a charter (Perk. § 510), if they could take any estate or privilege it would be only for the lives of the then existing inhabitants ( 2 Johns. Cas. 323 ; 9 Johns. 75 ), as in case of a grant to a single-person, omitting “and his heirs.” They arc-capable of taking the fee by proper words of grant to themselves and their heirs, or to another in trust for their use ( 8 Johns. 388 : Shep. Touch. 337), but some person or body politic must be named who can take by force of the grant, as a mayor and commonalty (Perk. § 64), or the church-wardens of such a church (Perk, g 55), in ancient time (Co. Litt. 3a). and now by custom (Cro. Eliz. 145, 179). The parishioners, inhabitants or good men of Dale are capable to purchase goods by such name. Co. Litt. 3a. The only reason why they cannot purchase in fee by that name is that they are not a permanent (Hob. 80), continuing body having succession. Any estate conveyed to them in fee must descend to their singular heirs, unless they have no charter or prescription, tin-franchise of a body politic, which is the only thing required to enable them to hold in perpetuity by succession.
These considerations lead to the object and effect of an incorporation in England, first, to give to ecclesiastical persons the same civil capacity to purchase as other natural persons have by right; and, secondly, to confer the franchise of succession. In this state, the first object is effected by the constitution, and the incorporation is necessary only for the second. The only difficulty then is to distinguish between the natural rights of all the members of the society which constitutes the state a body politic, and those which are conferred by charter or law on a body of men who are the members of a society united for particular purposes. The common law requires no charter to enable a body of men in any place to purchase chattels or receive do *423 nations of money, a chattel interest, or an estate for the lives of the grantees, in land, by their name, as a body, without other words. If one is necessary, it can be only to give them some privilege, immunity or exemption from the rigor of the common law, so as to make them as a natural person capable of enjoying an estate in fee without words of inheritance. A corporation is a permanent thing, that may have succession, an assembly of many into one body (Terms of Law, 123), an artificial body constituted of several members, united by its franchises and liberties, which form its ligaments and are'its frame and essence' (Lil. Pr. Reg. 459), which never dies, and exists only in its political capacity (1 Bl. Comm. 468-470), which unites and knits them together as a natural person (Id. 272); or a person who is made by policy and fiction of law a body politic, with the capacity of succession in perpetuity, but which exists in both a natural and political capacity (Wood. Inst. 109; 1 Bl. Comm. 468—470). The corporation aggregate, which never dies, and can take only in one capacity, holds in perpetuity by a grant to itself without words of succession; but a corporation sole, existing in both capacities, takes only for life, unless the word “successors” is added, so as to denote the intention to convey to him in his politic capacity of succession. Co. Litt. 8, 9, 94a, 96b, 250; Perk. § 240; Plowd. 496; Wood. Inst. Eng. Law, 111; Terms of Law, 124; Cro. Jac. 532. Succession is a corporate franchise, by which property passes from predecessor to successor, as it does from ancestor to heir, by inheritance. Terms of Law, 123; 4 Coke, 65a. Succession is not a word of inheritance. A grant to a private person and his successors carries only a life estate. Succession must be granted by a charter from the crown, or a law making the grantees a corporation, so that their rights devolve on their successors by virtue of the franchise. The object and effect of the incorporation is to create the artificial person with the same capacity as the natural person. Whenever it exists as a perpetual body, in the exercise of this franchise, its uninterrupted enjoyment is evidence of a charter presumed to be lost, and it is a corporation in fact and in law. Perk. § 34; Co. Litt. 132b; 2 Day’s Com. Dig. 300; 1 Saund. 345; 1 Mod. 55. The word “successors” is not in all cases indispensable to vest an interest by a grant oí-an obligation in the successor of a sole corporation; as where a grant is made to an abbot and his convent, to hold in frank-almoigne the tenure imports succession, and as the celebration of divine service and free alms are continuing objects, the estate is in perpetuity, as in case of a gift in frank-marriage. Litt. § 133; Co. Litt. 93b, 94a; s. p. [Inglis v. Trustees of Sailors’ Snug Harbor) 3 Pet. [28 U. S.] 146, 147. So where, by a local custom, the right passes to the successor, though not named, as the chamberlains of London (Terms of Law, 124; 1 Lil. Pr. Reg. 383, 384; 4 Coke, 65a; Cro. Eliz. 464, 682; Hob. 247; 5 Day’s Com. Dig. 17); so, of church-wardens who are a corporation by prescription throughout the kingdom, with capacity to take and hold money and chattels for the church, but not lands, yet they may hold lands by special custom in succession as a corporation (March, 67, pl. 104; Cro. Eliz. 145, 179; Cro. Jac. 532; Cro. Car. 455; [Terrett v. Taylor] 9 Cranch [13 U. S.] 45, 53; [Town of Pawlet v. Clark] Id. 328; 17 Serg. & R. 92). Neither are any particular words necessary to create the corporation; a public grant of corporate privileges is, per se, an incorporation to give the capacity of enjoyment according to the grant; as to the inhabitants of a town, to have guildam mer-catoriam, which unites them by the franchise, and makes them as a natural person for the purpose. 10 Coke, 30a; 1 Rolle, Abr. 513; 1 Bl. Comm. 474. And as the only thing for which a charter is necessary is, to grant the franchise of succession, its actual enjoyment and exercise is, per se, evidence that it was by lawful and competent authority. 1 Bac. Abr. 500; 10 Coke, 28a; 1 Bl. Comm. 475—479; 1 Lil. Pr. Reg. 459. London itself is only a corporation by prescription. 5 Day’s Com. Dig. 17, H. If then the religious, literary and charitable societies which have existed in this state had no other foundation for their rights of property, than the principles of the common law and long usage, they could not be disturbed for want of an actual incorporation by charter or law; and when we add to these rights, those expressly secured to them by the constitutions of the state and Union, we cannot doubt that they are as inviolable as a charter could make them. To decide that any one was necessary to enable a religious society to enjoy the sites and buildings for worship, for charity, for education and sepulture, and funds for the maintenance and support of poor, would be a declaration that the rights of conscience and worship could be made dependent on the discretion of the legislature. And, if a charter could be withheld from any society, united for religious purposes, so as to impair their rights of property, then a preference could be given to modes of worship; there would be a virtual prohibition of the free exercise of religion, and the sect favored by the legislature would be, in substance, a religious establishment.
Connecting with the whole course of the legislation of Pennsylvania, the well known fact which appears in the record in this cause, that the societies of Quakers have never been incorporated, it is not credible, that their right to hold their places of worship and charity, and to enjoy donations of land and money, is a mere shadow, without a charter in fact. In our opinion, they have had from 1701, and yet have, a charter more firm than any patent or law can create, the great charter of Penn, which was the basis of the usage and custom of the prov- *424 inee, and by its incorporation into the supreme law of the state, is the rule and standard of right by which our judgment must be guided. The law of 1777 repeals all laws inconsistent with its provisions, whether those of the mother country or the colony; and declares that laws not inconsistent with it shall remain in force, as well as such statutes and common law in England as have been heretofore adopted. The laws of 1705 in relation to deeds and wills, which have no exception of corporations, the law of 1730-31, which actually amortises the sites of houses of worship and burial grounds, then in possession of religious societies, devoted or erected for the purposes of religion or charity, were also a direct license to all Protestant religious societies to take and hold in mortmain by future grants and gifts. The law of usage which, being saved by the constitution, became a supreme law, gave the same right to all societies united or incorporated for these purposes, whether Protestant or not. As the custom of the province was in accordance with the rejected laws of 1710, in relation to the powers and duties of courts of equity, to the law of 1711, for the confirmation of public grants, and of 1712, in relation to religious societies, and the various acts concerning liberty of conscience and the privileges of freemen, and as this custom is the law of the state, according to which lands have been held in mortmain from its first settlement, we are bound to give it the same effect as is given to the custom of London by all the rules and principles of law in relation to the construction of statutes, We must apply those which have been adopted on the 43 Eliz., as laid down by the supreme court, to the constitution and laws of the state, and construe them most favorably and benignly, for the promotion of all objects connected with the maintenance of religion, the advancement of learning, the relief of the poor, and public utility; so that the rights, privileges, immunities and estates thus guarantied, shall be enjoyed unimpaired here, at least as far as they are in England, by this statute. No one can compare its provisions with the legislation of the state, and hesitate, for a moment, in saying that they fall far short of the protection given by our own laws to donations for pious and charitable uses. If the 43 Eliz. has by universal consent been considered as pro tanto a repeal of the statutes of mortmain, of superstitious uses, and restraints on corporations by the statutes of wills, they cannot be in force in this state, unless we reverse the whole course of the law, in the exposition of statutes, by construing them liberally in favour of forfeitures, and strictly against charities, so as to abrogate common law rights by equity, and defeat the remedy provided by statutes for their protection.
It must be remembered, that these are mere statutes of policy in contravention of the common law. The old statutes of mort-main were passed to prevent the king and mesne lords from being deprived of their seignioral and feudal rights accruing by prerogative and tenure. The statutes of Hen. VIH. and Edw. VI. were aimed avowedly against tlil rights of the Catholic religion. Its suppression being their great object, donations for its support were declared “to be superstitious uses, mala in se, and destructive to our constitution and government under the Protestant religion; therefore the law prohibits them, but it is not so with charities, which have always been favored.” The true foundation of the statute of mortmain of 9 Geo. II. was, that enough of lands had got into the hands of corporations that were indissoluble; and even now charities may be established in the lifetime of a person, but shall not be done in his last moments. 3 Atk. 148, by Lord Hardwicke. The history of the times gives another reason for this statute: It was passed in the session of 1735-36, during a period of high excitement against the Catholics, and when the church was deemed to be in such danger that a bill for the relief of the Quakers from severe disabilities was thrown out in the house of lords after passing the commons. 5 Hume, 617, 618; 3 Rapin, 225, 226. It is not congenial to the policy of this state to incorporate such principles into its system, nor would it be creditable to the character of its legislation to expound it unfavorably to those rights and institutions which were favored, protected and spared by the laws of a king who spared little besides. If any statutes were suited to the policy of the state, they are the 43 Eliz. and the 7 & S Wm. III. c. 37, an act for the encouragement of charitable gifts and dispositions, which in favor of learning, charity and other good and public uses, authorized the king to grant licenses to any person or persons, bodies politic or corporate, their heirs and successors, to purchase and alien land, in mortmain, in perpetuity or otherwise, without being subject to forfeiture. 3 Ruffh. 636. It may well be presumed, that the emigrants from England brought with them these principles for adoption, and en-grafted them into their system of religious toleration and charities; but that they ever adopted any law which created a forfeiture for an alienation of property to any religious, literary or charitable society or corporation or prohibited donations for the uses of worship, according to the ritual of the Catholic church, is utterly inconsistent with the established usage, and every law of the state or colony from *he earliest to the present time.
The law must be settled beyond all doubt before we can feel justified in deciding that the rights of religious societies and of charitable and literary institutions, in Pennsylvania, are less firmly established than they were in the mother country. As to the statutes of superstitious uses, it suffices to say that where there can be no religious estab *425 lishment, no restraint on the iree exercise of religion, and no preference of modes of worship, the celebration of divine service according to the rites of any church or society worshiping the Supreme Being, cannot be deemed unlawful or superstitious; nor can an actual incorporation or express lieense be necessary to give- to any society or body of men the capacity of enjoying any right in accordance with a custom or usage, incorporated into the constitution, in order to save a forfeiture, by an alienation in mort-main, where none is in a like case imposed by the law of England. The Revolution devolved on the state all the transcendent power of parliament, and the prerogative of the crown, — [Trustees of Dartmouth College v. Woodward] 4 Wheat. [17 U. S.] 651, — and gave their acts the same force and effect; consequently, a grant, charter or law made by its authority is, by the principles of the common law, equally binding on the state, as a patent or act of parliament is on the king. The state can take no estate by forfeiture when the alienation is expressly authorized by its laws, and the enjoyment of the estate secured to the grantee by constitutional provisions, which except the subject matter from all the powers of government.
It would be a remarkable feature in the legislation of the state, if, while its successive constitutions have made the rights of bodies united or incorporated its especial favorites, and its laws give the right of self-incorporation to all religious, literary and charitable associations, and so far depart from the jealous policy of the state against chancery jurisdiction as to provide special remedies for the execution of trusts in their, favor, both as to real and personal property, they should be still considered as reprobates, outlawed by the statutes of mortmain, and their estates forfeited by the very act of a conveyance to a corporation directly, or to trustees for their use. If any, the least respect is paid to the constitutions, they must be considered as placing corporations on the same footing at least, if not a better, than in England; yet if the judicial dicta which we find in the cases are the law of the state, the statutes of mortmain are in full force, while those which have softened their rigour have not been adopted, and the supreme law of the state is a very nullity, incompetent to protect charities, even to the extent of the 43 Eliz. or the 7 & 8 Wm. III. There is no escape from this conclusion, if we take these dicta as the settled law of the state. If the statutes of mortmain are a part of the jurisprudence of the state, they have been so from its first settlement; and as they have been in no way modified or altered,they must be taken to have been adopted to their full extent, so as to cover the mischief they were intended to remedy, by creating the forfeiture, and giving the state the right to seize the lands aliened, or the mesne landlord to enter, as the land may have been held under the one or the other. 7 Serg. & R. 320. As the tenures of Pennsylvania are free and common socage, there were no seigniorial rights accruing by tenure, which could be defeated by an alienation in mortmain, except in case of a person seised of lands, dying intestate, and without known kindred, when the land escheated to the immediate landlord of whom it was holden, or to the proprietary, if he held immediately from him; according to the colonial law of 1705 (1 Dall. Laws, Append. 45, § 12), which remained in force till 1787, when the escheat was declared to be to the state (2 Dall. Laws, 553). The mesne landlord, then, was till that time, entitled to the benefit of the forfeiture, and the license of the king or proprietary was no dispensation without the consent of the party to whom it accrued; the king could renounce his own right, but not the right of a subject; before the statute of Wm. III. it could be done only by the power of parliament. Vaughan, 333-343, 356; Co. Litt. 99a. By the law of England, the license of the king and mesne lords is not alone sufficient; there must be a writ of ad quod damnum, to ascertain what damage it would be to any other person, to alien in mortmain. Fitzh. Nat. Brev. tit. “Writ of Ad Quod Damnum” (222), 493, etc. It follows, that a patent, license or charter from the proprietary, under the colonial government, or from the president of the council, before 1787, would not have saved the forfeiture to the immediate landlord, without his consent, and the writ of ad quod dam-num; for if the statutes were in force, either by adoption or as “the general course of the law of England,” or the common law, they remained in force till they were altered or repealed, as declared in the acts of 1718 and 1777, as fully as if they had been re-enacted; and a license can have no greater effect here than it had in England before the statute of 7 & 8 Wm. III. which was passed in 1695, thirteen years after the charter to Penn. “With respect to English statutes enacted since the settlement of Pennsylvania, it has been assumed as a principle, that they do not extend here, unless they have been rec-ognised by our acts of assembly, or adopted by long-continued practice in courts of justice.” 3 Bin. 597 . As there is not a spark of evidence of such recognition or adoption, we .have no legislative or judicial authority for saying that it is now in force; consequently, no license would save the forfeiture before 1787.
The supreme court has declared it to be a point conceded, that the 43 Eliz. has not been extended to this country. “But we consider the principles which chancery has adopted in the application of its principles to particular cases, as obtaining here, not indeed by the force of the statute, but as part of our common law, and where the object is defined, and we are not restrained by the inadequacy of the instrument which we are *426 compelled to employ, nearly if not- altogether, we give relief to that extent that chancery does in England.” 17 Serg. & R. 91,. Assuming this position of the court to be correct, the inevitable conclusion is, that we ¡ have not adopted the great operative principles, by which it has been held in courts of law, as well as in equity, to be a repeal of the statutes of mortmain, de donis condition, alibus, and of the restriction on corporations ! by the statute of wills. 3 Atlc. 130. This ! is the effect produced, which has given to that statute its importance: those statutes interposed barriers to the vesting and enjoyment of property for pious" and charitable uses, which the 43 Eliz. removed, so that they became opened for the exercise of the equity powers of courts of chancery as completely as if no previous disability by statute had ever existed; and this is the reason why it has ever been considered in England as the Magna Oharta of charities, that, being an enabling statute, it repealed all disabling ones. If we assume that this leading feature, this vital spirit of the statute, has not been adopted here, we should be bound to consider the prohibitory statutes which it repealed, as in force here in all their rigor; i if we follow the report of the judges made in ISOS, as explained and adopted by the declaration which they made in subsequent cases, in connection with the opinion in Wit-man v. Lex, above quoted, we must declare the law of mortmain to apply to all donations of land to corporations, for pious and charitable uses, without the benefits of the statutes of Eliz., or Wm. III., to mitigate their severity or save the forfeiture.. Strange as this result may be, it is unavoidable, if the protection which these statutes throw around charities in England does not exist here, or has been taken away by the statute, common law or usage of the state. They operate equally on all societies, whether incorporated by prescription, by special act of assembly, or the charter of the proprietary; so that the enjoyment of their estates depends on legislative discretion, in granting a dispensation of the forfeiture, accruing by an alienation to bodies, and for purposes not only valid, but favored, encouraged and protected in England, without license, under the 43 Eliz., or by the license of the king under the 7 & S Wm. III. This latter statute was passed shortly after the first settlement of this colony; its words show the policy of the times to be favorable to all charitable institutions, and connected with the political history of England, its passage is a striking illustration of the disposition of parliament to make them its peculiar favorites.
One of the great principles of the Revolution of 1GSS, was a denial to the king of the power of dispensing with, or suspending of laws, or the execution thereof. It was the first item of abdication of the crown by James II. as set forth by the lords and commons in convention, that he had exercised it without consent of parliament; and a declaration that it was illegal, was the first and second items of the bill of rights (3 Ruffh. St. 440, 441), which was made a fundamental law of the kingdom. There could therefore be no stronger indication of the spirit of the times in favor of charities, than by authorizing the king to dispense with the statute of mortmain in their favor, making it an exception to a great rule and principle of government; and we deem it incredible that a less liberal spirit could have entered into the legislation of the colony: yet, if the statutes of mortmain have been adopted, there can be no power to dispense with their forfeiture, but by the legislature. The principle of the Revolution of 1(188 has been carried into all the American constitutions: no governor can exempt a corpoiation from the forfeiture of mortmain by his license or charter, with a clause of non obstante statuto; and no act of assembly before or since the Revolution has exempted charities from the effects of mort-main. There are, therefore, but two alternatives for us to adopt; the first, that the statutes of mortmain have been in force from the first settlement of the province, that the statutes which, in England, have mitigated their rigor, and made them in some measure conformable to our usage and condition, the laws and constitution, have not been adopted, and that there has never been any power to dispense with the forfeiture, unless in the party to whom it accrued. Or, that they never were introduced by our ancestors, as any part of their code. In the choice of these alternatives, we cannot hesitate — we cannot look at one item of legislation upon the subject, whether of supreme or subordinate authority, or into the ancient customs and unbroken usage of the state, without at once perceiving the total repugnance between the whole policy of the state, and the existence of British statutes, which would compel us to declare that every house of worship erected in the colony from the time of William Penn, stands upon ground forfeited by a conveyance to a religious society or corporation. It was due to the weight of judicial authority which bore on these questions, to examine them through the details of the law of England, as well as of the state, before we would venture to dissent from it; it was due especially to the high legislative authority which has declared what in its view was the policy and law' of the state, as to the disabilities of corporations. The thirty-fourth section of the judiciary act [ 1 Stat. 92 ] makes it our duty to make state laws the rule of our decision, unless they are repugnant to the constitution, laws or treaties of the United States. The preamble to the act of 6th April last, contains a plain declaration, that “no incorporation, though lawfully incorporated or constituted, can, in any ease, purchase lands within this state, either in its corporate name, or names of any person or persons whomsoever, for its use, directly or *427 indirectly, without incurring the forfeiture of said lands to this commonwealth, unless said purchase be sanctioned and authorized by an act of the legislature thereof; but every such corporation, its feoffee or feoffees, hold and retain the same, subject to be divested or dispossessed at any time by the commonwealth, according to due course of law." P. L. 467, 468. On the other hand, we have the supreme law of the state in two constitutions, declaring — one, that the declaration of rights is hereby declared to be a' part of the constitution of the commonwealth, and ought never to be violated on any pretext whatever; the other, that every thing contained in the bill of rights is excepted from the general powers of government, and shall forever remain inviolate: among these rights are enumerated those of “all religious societies, or bodies of men heretofore united or incorporated for the advancement of religion and learning, or for other pious and charitable purposes, which shall be encouraged and protected in the enjoyment of the privileges, immunities and estates,” &c., in the constitution of 1776; and “the rights, privileges, immunities and estates of religious societies and corporate bodies,” are, by that of 1700. declared to remain as if the constitution had not been altered, and the first article pf the schedule expressly saves the rights of incorporations. ,
We have felt it our duty to consider the law of the state to be as thus declared and we have been unable to bring our minds to any other conclusion than that any English statute which impairs the right of any corporation to enjoy an estate for its own use, is entirely inconsistent with the usage and constitution of the state, and could never have been in force by adoption, without deranging the whole system of policy, built up by a uniform course of the common law, and legislation of the state for a century and a half. If, however, we have not succeeded to that extent, we apprehend there can be little doubt that these propositions may be considered as established: 1. That, construing the legislation of the state by the rules which have been applied to the 43 Eliz., the statutes which would prevent the effectuation of any objects declared lawful, and by any disposition made valid and confirmed by law, must be considered as repealed so far as they embrace these objects and dispositions. 2. That conveyances and devises of land for religious, charitable, literary and public purposes, must be taken to be, within the meaning of the act of the 6th April, 1833, a purchase “sanctioned and authorized by an act of the legislature.” 3. The constitution is an act of the supreme legislature of the state, which authorizes all societies or bodies of men, united or incorporated. to hold and enjoy to themselves, and in their own names and right; and the acts of 1730, 1818 and 1825, are legislative sanctions of their right to hold and enjoy lands, money and chattels for all these purposes.
We should have rested satisfied with results so satisfactory to our minds as these, if they had not been in some respects • at variance with the understanding’of the supreme, court of the state, as to the law of mortmain, and the decision of the court in Baptist Association v. Hart [4 Wheat. (17 U. S.) 31], Opposed to such authority, it would have been our duty to have surrendered our own judgment, unless we had found it supported by the constitutions of the state, and the United States. Bound to decide on the laws of a state, as the courts of a state do, we must look to that which is supreme, as the only rule of our decision, where its language is plain; in its application to this case, it cannot be mistaken, nor can we overlook the first amendment to the constitution of the United States, which, in our opinion, wholly prohibits the action of the legislative or judicial power of the Union on the subject matter of a religious establishment, or any restraint on the free exercise of religion. We know of nothing which would so directly tend to infringe this prohibition as a law to declare that no religious society sliould be capable of enjoying land for the purposes of sepulture, worship or charity, without a license from the state; if the legislature can seize it as forfeited, they may impose the most effectual restraint on religious worship, by taking from the society the ground whereon, and the building in which they celebrate it; and no preference of modes of worship can be so repugnant to the rights of conscience and equality of religious right, as to license one society to do what they prohibit to another. With such rules for our guide, we could follow no other.
The objection to the devise of the eight acre lot is thus narrowed to the want of residence of some of the members of the yearly meeting in the state. This is founded on the act of 1730, which is confined to religious societies within the province. In the case of Methodist Church v. Remington, 1 Watts, 218 , the supreme court say, “If the trust before them is to be sustained only by the enabling provisions of the law of 1730, it must fall: on the other hand, it is fair to say, that, though it derives no support from the statute, it is not necessarily prohibited by it; for it is an undoubted rule of construction, that an affirmative statute such as this, does not take away the common law, and there was certainly no absolute prohibition of such a trust by the common law, or any previous statute.” The objection is therefore not sustained by this decision, still less by the opinion in the case of Baptist Association v. Hart, 4 Wheat. [17 U. S.] 27-29, where the court declared that a devise in Virginia to a charity in Pennsylvania would have been good if the plaintiffs had been capable of taking; and it is in direct opposition to the common law in relation to bequests of personal pi-operty for charitable purposes, to be expended in Ireland (1 Brown, Ch. 274); Scotland (1 Brown, *428 Ch. 571; Amb. 236; 14 Ves. 537; 16 Ves. 337); or for the support of a bishop in America (1 Brown, Ch. 444), all of which have been held to be good. 3 Pet. [28 U. S.] 500-502. Append. The yearly meeting of Philadelphia is a Protestant religious society, which has existed from the settlement of the colony, with known and recognized capacity of taking and enjoying property, according to the law and usage of the province and state, as well as the principles of the common law. They must be considered as a body politic or corporate by prescription, possessing and enjoying the franchise of succession, with the same rights of property as a natural person does by inheritance. We cannot impair the rights of the body united by their franchises, by inquiring into the separate capacity of its component members. They might be in part persons who could not hold for their separate use; but that would not change the character of the society, nor affect their constitutional rights as a body united for the purposes of religion and charity, located within the state; and, as such, they would come within the equity, if not the words, of the law of 1730. Be that as it may, they cannot be excluded from the protection of the constitution and usage, in the absence of any law requiring the residence of all its members within the state, or any rule of the common law, which imposes any disability upon the citizens of one state holding property in any other state, as its own citizens may do. The objection to the bequests of money to the Quaker societies in Maryland, Virginia, Ohio, and to the citizens of Winchester, assumes a different shape. Their alleged incapacity arises from their being composed wholly of the residents of other states, which must be tested by the la-w of the domicil of the testatrix. There is none which denies to the citizens of other states any rights of property which can be enjoyed by the citizens of this state under its constitution and laws, which declare them inherent in all persons. The laws for the enforcing the execution of trusts extend to all “personal property vested in any person or persons, to be applied by them to any religious, literary or charitable use or uses,” and the cestui que trust, or other person interested in the execution of the trust may apply to the courts of the state to compel the trustees to account, or to prevent the failure of the trust.
The constitution of the United States declares, that “the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states;” this instrument was adopted by the same power which established the constitutions of the several states, and is a part of the supreme law of each, as fully as if it was incorporated in its body. We must take it therefore as a grant by the people of the state in convention, to the citizens of all the other states of the Union, of the privileges and immunities of the citizens of this state; no law of the state has given it any construction which in any way restricts its operation, and it is not the duty of any federal court to so expound the constitution as to weaken the bond existing between the states which have established a “general government of the Union,” a federal government of these states, by restraining the grants of rights or powers within limits narrower than the tenor and purport of the words used, according to their common acceptation. “It cannot be presumed that any clause in the constitution is intended to be without effect, and therefore such a construction is inadmissible, unless the words require it.” [Marbury v. Madison] 1 Cranch [5 U. S.] 174-176. This clause is copied from the fourth article of the old confederation, and is one of the most important inthe whole instrument; it becomes senseless if it is not applied to the rights of property. The political rights of the citizens depend on the laws of the respective states (article 1, § 2, cl. 1, Const. U. S.), rights accruing by contract cannot be impaired in their obligation by state laws (article 1, § 10), and personal rights are protected by the 2d and 3d clauses of section 9, art. 1, of the constitution, and the 9th amendment; leaving no subject on which this clause can operate except property. The words “privileges and immunities” relate to the rights of persons, place or property; a privilege is a peculiar right, a private law, conceded to particular persons or places (7 Day, Com. Dig. 113, tit. “Privilege,” A), whereby a particular man, or a particular corporation, is exempted from the rigor of the common law (Cow. Inst. tit. “Privileges”), as converting aliens into denizens, whereby some very considerable privileges of natural born subjects are conferred upon them, or erecting corporations, whereby a number of private persons are united and knit together, and enjoy many liberties, powers and immunities in their political capacity, which they were utterly incapable of in their natural (1 Bl. Comm. 272). Among the privileges of the citizens of every state, is that of exemption from the law of alienage, though not born in the state; and every body of private persons united or incorporated have the franchise and immunity of enjoying estates in succession in this state; these are exemptions from the rigor of the common law, which the citizens of other states may enjoy in this, as fully as the citizens of this state can. We can therefore make no distinction between these bequests and those to societies located in the state; the disability of alienage cannot be applied to the citizens, societies or corporations of other states, and they may enjoy property as it can be enjoyed of right by those which are within the state.
The next questions that arise on this will, are the uses for which the various dispositions are made. As the supreme court have declared it a settled point, that the 43 Eliz. *429 is not in force, we must endeavor to'ascertain from other sources, what uses are pious and charitable, as distinguished from those which are deemed superstitious or otherwise invalid. The general course of the law of England, as to the transmission of property, was declared, in the charter to Penn, to be the rule in the colonies, till altered or repealed, and the common law was recognized by the acts of 1718 and 1777 as in force, as well as such statutes as had been adopted. It is also a conceded principle, “that the colonists take with them such laws of the mother country as are useful and suited to their condition.” 1 Jour. Cong. 27. It will be necessary, therefore, to trace the law of charities through the English statutes which preceded the 43 Eliz. as well as the common law, so as to determine what was its general course, how far it has been adopted in the written law of this state, or has been the basis of its usage independently of the enabling or enacting provisions of the 43 Eliz. and 7 & 8 Wm. III., assuming them not in force as adopted statutes. The following statutes on the subject come strictly within the description of the supreme court of the United States, in [Baptist Association v. Hart] 4 Wheat. [17 U. S.] 31; they embrace cases within the statutes of mortmain, and gifts to corporations, and are analogous to the 43 Eliz. in all their features; so that there can be no reason for not giving them the same effect and construction as have been given to that statute.
The following are uses declared to be pious and charitable, by a series of statutes commencing in 1285, and affirmative of the common law: The statute 13 Edw. I. c. 41, enumerates the maintenance of a chantry, lights 'in a church, divine service and alms. Keb. St. 49; 1 Ruffh. St. 106; Fitzh. Nat. Brev. 465; 2 Co. Inst. 467. The statute 17 Edw. II., divine service, the defence of Christians and the church, liberal alms-giving, relief of the poor, hospitalities, and all other offices and services before due. by whatever name they are called. Keb. St. 36, 37. The statute 15 Rich. II. c. 6, the poor parishioners of the churches, the endowment of a vicar to do divine service, inform the people and keep hos-pitalities. Keb. St. 181; 1 Ruffh. St. 402; S. P. 4 Hen. IV. c. 12; Keb. St. 198. The statute 2 Hen. V. c. 1, the sustenance of impotent men and women, lazars, men out of their wits, and poor women with child; the nourishing, relieving and refreshing other poor people. Keb. St. 212; 1 Ruffh. St. 486. The statute 23 Hen. VII. c. 10, obits, masses and lights, to be kept not more than twenty years; the discharge of tolls and customs in a city in case of the poor, and the cleansing of the streets. Keb. St. 403, 404; 1 Ruffh. St. 171, 172. The statute 37 Hen. VIII. c. 4, § 5, alms to the poor, and other good, virtuous and charitable deeds. Keb. St. 608. The statute 1 Edw. VI. c. 14, erecting grammar schools to the education of youth in virtue and godliness; the augmentation of the universities; better provisions for the poor and needy; the support of a schoolmaster, preacher, priest, vicar; the maintenance of pier walls and banks; and the relief of poor men being students or otherwise. Keb. St. 636-644; 2 Ruffh. St. 397, etc. The repairing of bridges and highways, and setting poor people to work. 2 & 3 Edw. VI. c. 5; Keb. St. 651; 2 Ruffh. St. 412; 18 Eliz. c. 20; Keb. St. 903, 904; 2 Ruffh. St. 623. The relief of the poor of every parish. 5 & 6 Edw. VI. c. 2; Keb. St. 676; 2 Ruffh. St. 639. The resuscitation of alms, prayer and example of good life in the realm. Keb. St. 730; 2 Ruffh. St. 481. The relief of prisoners. 14 Eliz. c. 5; Keb. St. 847; 2 Ruffh. St. 606. The repair of churches. 13 Eliz. c. 10; Keb. St. 839; 2 Ruffh. St. 595. The maintenance and relief of the poor in houses of (correction, impotent and maimed soldiers (29 Eliz. c. 6, § 7; Keb. St. 894; 2 Ruffh. St. 656; 35 Eliz. c. 1; Keb. St. 907; 2 Ruffh. St. 672), and hurt and maimed soldiers and mariners (Keb. St. 911; 2 Ruffh. St. 676). The maintenance of houses of correction, abiding houses, and stocks and stores therefor. 35 Eliz. c. 7; Keb. St. 913; 2 Ruffh. St. 678. The founding and erecting hospitals and houses of correction, for the relief and sustenance of poor, maimed, needy or impotent people. 13 Eliz. c. 5; Keb. St. 921; 2 Ruffh. St. 687; 2 Co. Inst. 120. Donations to hospitals, colleges and other places, founded, ordained, for the relief of poor, aged and impotent people, and maimed soldiers. 39 Eliz. c. 6. Schools of learning; orphans, or such other good, lawful and charitable intents and purposes; reparation of high-ways and sea banks; the maintenance of free schools and poor scholars; orphans and fatherless children; and such like good and lawful charities. 4 Co. Inst. 166, 167. To which may be added the cases not enumerated or recognised by the words of the statutes, but which are within their equity, by adjudged cases. The erection of chapels of ease, as members of parochial churches (Hob. 123, 124); or cathedral churches (Swinb. 60). Gifts for the advancement of religion, learning, piety and public utility. 11 Coke, 70b, 73b; 10 Coke, 26; 8 Coke, 130b. Po

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9299351. Public record. Not legal advice.