THE WAPPETAW CHURCH CASE. pplemental Bill—Arguments for the Relators ; William Whaley , Counsel. rhe important question in this cause is, whether t$e Act of the gislature of South Carolina of the 17th December, 1834, ere by it was enacted that the Act entitled an Act for incorpor- ng the Society for the relief of Elderly and Disabled Ministers d of the Widows and Orphans of the Clergy of the Independent Congregational Church in the State of South Carolina, ratified the 7lh March, 1789, be, and the same is hereby repealed, by 1 with the consent of the said Corporation, is or is not constitu- nal. Upon which result depend the two practical questions : First, whether the donations by the Society in aid of the Circular uch are or are not misappropriations of the funds of this charity its Trustees, the Society: And Secondly, if they are misappropriations, whether there is a general right in Equity to follow the Trust Funds so mis- died, into the hands of the Circular Church, a volunteer with dee of the trust. rhe origin of this Society is involved in some obscurity as to date, but its design and its objects are manifest to all who will k into its early history. Some time previous to 1789, a number of pious persons belong- r to the Independent or Congregational Church in the State of uth Carolina, imitating the example of the Episcopal Church, d having a living instance before them of the necessity of such Association, in the person of the Rev. Josiah Smith, a disabled esbyterian Minister, who had labored for their spiritual benefit their own vineyard, associated themselves together for the sole rpose of raising a fund and establishing a charity; out of which assurance of aid and relief would be guaranteed for all time to dr elderly and disabled Ministers while living, and a suitable wision for their Widows and Orphans when dead. As it is an obligation of the Gospel” they say in their Preamble, “on Chris- s of all denominations to encourage and support its Ministers, who are their tors in the Lord ; and as it appears to us that due encouragement may be more itainly and extensively provided and secured, by adding to the usual sup- [ afforded to Gospel Ministers during their health and usefulness, an assurance 1 2 of aid and relief when they are disabled for the services of God’s Vineyard, and i provision lor their Widows and Orphans when they are removed, without leavir them a coiripetent support, we, the subscribers, therefore desirous of carrying th good purpose into effect, and of testifying our regard to them, who have faithful labored amongst v.s in the Gospel, do hereby solemnly associate and bind ou selves under the following rules : Such were the sentiments which kindled up that bright flame ( Christian charity; such were the sentiments which moved ill benevolent hearts and the wise understandings of Drs. Rolling head and Keith with their associates; so as to determine thei that this good deed should not be done in a corner; that it shoul not pass away with their day and generation, or be limited to the own Congregation, but that for all time and for all Ministers wt should labor for them and become old or disabled, or die poo leaving needy families, this assurance of aid and relief, and < future provision should be firmly granted and perpetually estal Lislied. It was then and under such circumstances, that thisAssi ciation in 1789, presented themselves before the Legislature i South Carolina; with their petition: “To the Honorable Jacob Head, Esq., Speaker, and the rest of the House of Kept sentatives in General Assembly met: ‘■The humble petition of the subscribers sheweth, That your petitioners at many others have taken into their serious consideration the distressed situatic in which Elderly and Disabled Ministers, and the Widows and Orphans of tl Clergy of the Independent or Congregational Churches are frequently placed left, and are desirous to associate themselves together for the purpose of esla lishing a fund for their benefit. “ That your petitioners conceive their design would be more effectually prompt by their being incorporated ; which would enable them to appropriate their fun to greater advantage, aud to conduct their affairs with greater certainty than tb otherwise could do. “ Your petitioners therefore pray that your Honorable House would be pleased pass a law for incorporating them as a Society by the name and style of 1 Society for the Benefit of Elderly and Disabled Ministers, and of the Widows* Orphans of the Clergy of the Independent or Congregational Churches in State of South Carolina; and that the said Society may have all the privile usually annexed to an incorporation. “And your petitioners will ever pray, &c.” This Petition, expressing the same sentiments and ackno edging the same objects, prays an act of Incorporation, t their designs may be more effectually promoted, that their fuifl may be applied to greater advantage, and that their affairs nfl be conducted with greater certainty, and that their charity nia be perpetual. Such was the avowed purpose of these Petitw ers. They asked no pecuniary aid; they desired no directiin as to how their funds should be applied, or as to whom tlfl beneficiaries should be; they were only solicitous that the fv- 3 reign Power should bestow that immortality which they alone juld bestow upon the artificial being which they (jesired to reate, and invest that being with power to dispense such aid 3 they had collected, to such persons as they should direct, ir all time. The Legislature granted the prayers of the Peti- oners and passed an Act in precise conformity with their views nd wishes. “Whereas, William Hollingshead, Isaac S. Keith, and Josiah Smith, with indry other members of the Society for the Relief of Elderly and Disabled Min- ters, and of the Widows and Orphans of the Clergy of the Independent or ongregational Church in the State of South Carolina, by their petition to the eneral Assembly, have set forth, that they had, with many others, taken to their serious consideration, the distressed situation in which Elderly and disabled Ministers, and the Widows and Orphans of the Clergy of the Inde- mdent or Congregational Churches were frequently placed and left , and had there- ire associated themselves together for the charitable purpose of establishing a md towards their relief; but the petitioners are of opinion that so benevolent a ssign would be more effectually promoted by their being incorporated; they terefore humbly prayed that a law might be passed for incorporating them as a ociety, by the name and style of “ The Society for the relief of Elderly and Disabled Iinisters, and of the Widows and Orphans of the Clergy of the Independent or ongregational Church yn the State of South Carolina ,” and that they might have lithe privileges usually annexed to such an incorporation. '■'■Be it therefore enacted by the Honorable the Senate and House of Representatives ow met and sitting in General Assembly , and by the authority of the. same , That re Society above mentioned, and the persons who now are, or shall hereafter be tembers thereof, and their successors, officers, and members of it, shall be, and ley are hereby declared to be, one Body Corporate, in deed and in name, by the ame of “ The Society for the Relief of the Elderly and Disabled Ministers, and of the Vidows and Orphans of the Independent or Congregational Church in the State of outh Carolina; and by the said name shall have perpetual succession of Officers nd Members, and a Common Seal, with power to change, alter, break, and make ew the same, as often as the said corporation shall judge expedient; and the said irpora'tion and its successors shall be able and capable in law to purchase, hold, ave, receive, enjoy, possess, and retain to itself, and its successors, in perpe- lity, or for any term of years, any estate or estates, lands, tenements or heredita- ents of what kind'or nature whatsoever, and to sell, alien, exchange, demise. • lease the same, or any part thereof, as it shall think proper; and by its said mte to sue and be sued, implead and be impleaded, answer and be answered ito, in any Court of Law or Equity in this State; and to make such rules and .'-laws (not repugnant and contrary to the laws of the laud) for the benefit and vantage of the said corporation, and for the order, rule, good government and magement of said corporation, as shall from time to time be agreed upon by a tjority of the members of the said Society. •'And be it further enacted by the authority aforesaid, That it shall and may be :vful for the said corporation hereby erected to take and to hold to itself and to -1 successors forever, any charitable donations, or devises of lauds and personal < ate, and to appropriate the same for the benefit of said corporation, in such l nner as may be determined by a majority of the members thereof. ‘ And be it further enacted by the authority aforesaid, That the said Corporation 4 shall be, and is hereby declared able and capable in law to have, receive, enjoy possess, and retain all such estate, real and personal, money, goods, chattels, an< effects, whjph it is now possessed of, or entitled unto, or which has already beet given, devised, or bequeathed to it, by whatever name such devise or bequest ma; have been made. “ And be it further enacted by the authority aforesaid. That this Act shall bi deemed and taken as a public Act. and notice shall be taken thereof in all thi Courts of Justice and elsewhere in this State, and it shall be given in evidenci on the trial of any issue or cause, without special pleading. 11 Seventh day of March Anno Domini 17>9.” It is here seen that the Act of 1789 created a corporation o the persons who were then, and should hereafter become member of the Society for the relief of Elderly and Disabled Ministers and of the Widows and Orphans of the Clergy of the Independen or Congregational Church in the State of South Carolina, and thei successors, officers and members, as one body corporate, in deei and in name, “ By the name of the Society for the relief o Elderly and Disabled Ministers, and of the Widows and Orphan of the Clergy of the Independent or Congregational Church i the State of South Carolina.” • The Preamble to this Act recites that this charter was grante upon the petition of William Hollingshead, Isaac S. Keith an Josiah Smith, with sundry other members of the Society, “ wt had taken into their serious consideration, the distressed situatio in which Elderly and Disabled Ministers and the Widows an Orphans of the Clergy of the Independent or Congregation! Churches were frequently placed and left, and had therefo associated themselves together for the charitable purpose ; establishing a fund for their relief.” It was upon that stateme and for that purpose alone, that the charter of 1789 was applii for by the Petitioners, and granted by the State ) from this stal ment, it is known, that Drs. Hollingshead and Keith, with t Rev. Mr Smith and others, became the founders of this charit; that they themselves either subscribed the funds necessary for the purpose, or collected them from other pious persons, their frienc. At all events they and their associates were at that time the legll owners of the property or funds of the Society, (come from wlltl quarter it may) they had the entire control over them and the absohbj right to dispose of them in such manner as they deemed fit. Vest} with these rights both as to the fund and its disposal, they thej selves applied to be incorporated, that they and their successors irf have the perpetual right, as Trustees of their own charity, of apply:? their own funds according to the laws of its foundation. The . l of 1789 established them by charter as such a Corporation, wit a 5 erpetual existence; with power to purchase and dispose of estate °al and personal; with power to take and hold charitable donations nd devises of land and personal estate, and to appropriate the ame for the benefit of the said Corporation and with power to njoy, possess and retain whatsoever it was then possessed of or i any way entitled to. By this Act of 1789, the sole beneficiaries f the charity so founded were the Elderly and Disabled Ministers nd the Widows and Orphans of the Clergy of the Independent or longregational Churches in the State of South Carolina. The 'ociety so incorporated, became Visitors and Trustees of the harity. The Legislature by its charter gave no donation in land r money, they only bestowed on an Association already formed, nth a fund in their possession and with purposes and objects efore declared and definite, a corporate existence with such privi- jges and immunitiesas would enable theSociety to more effectually romote their benevolent designs, to appropriate their funds to etter advantage for the objects of their bounty, and to conduct heir affairs with greater certainty. For a period of certainly Drty-six years and perhaps seventy years, did this Society exist s it had been called into existence, without intrusion or molesta- ion, dispensing whenever an opportunity offered, its charities ccording to the laws of its foundation, and it has been proved rat those laws were fully known to, clearly recognized, and roperly understood both by the Society, (the Trustees) and the Circular Church, from 1789 until 1834, when the Legislature by s Act passed 17th December, 1834, repealed the Act of 1789. jj I f 9 They thus petitioned : “ To the Honorable the President and Members of the Senate: “The petition of the members of the Society for the Relief of Elderly and Dis¬ hed Ministers, and of the Widows and Orphans of the Clergy of the Independent ■ Congregational Church in the State of South Carolina, respectfully shew : That the period of their incorporation, in the year of our Lord seventeen hundred id eighty-nine, and up to a recent date, the Circular and Archdale Churches imposed but one congregation, under the corporate name and style of “ The Inde- mdent or Congregational Church in the City of Charleston;” That in consc¬ ience of a separation of said Churches into two distinct and separate congre- tions, the Circular Church still retaining the original corporate name, and the •chdale Church having since been incorporated by the name and style of “ The cond Independent or Congregational Church in the City of Charleston,” it has come necessary for your petitioners to apply to your Honorable Body for an nendment of their charter, so that the name of the said Society shall be slightly tered, and a discretionary power given to your petitioners to apply their funds i such charitable, benevolent, religious, and other purposes as may not be incom- y ible with the objects of the Society, and shall contribute more effectually to the Lomplishment of the same. I 6 “Your petitioners therefore pray that the name and style of the Society be so altered and amended as to read thus: “The Society for the Relief of Elderly and Disabled Ministers, and of the Widows and Orphans of the Clergy of the Inde¬ pendent or Congregational Church in the City of Charleston and that power be given to your petitioners to apply their funds discretionarity to such charitable, benevolent, religious, and other purposes as may contribute to the welfare of said Church and Corporation. “ And your petitioners will, as in duty bound, ever pray,” &;c. •• An Acr to amend the Charter of the Society for the Relief of Elderly and Disa¬ bled Ministers, and of the Widows and Orphans of the Clergy of the Independent or Congregational Church, in the State of South Carolina. ‘‘ Sec. 1. Be it enacted by the Honorable che Senate and House of Representa¬ tives, non • met and sitting in General Assembly , and by the authority of the same. That the Act entitled “ An Act for incorporating the Society for the Relief of Elderly and Disabled Ministers, and of the Widows and Orphans of the Clergy ol the Independent or Congregational Church, in the State of South Carolina, rati¬ fied on the seventh day of March, seventeen hundred and eighty-nine be, and the same is hereby repealed, by and with the consent of the said corporation. “ Sec. 2. And be it further enacted by the authority aforesaid, That the persons and members of the Society hitherto known by the name of the Society for the Relief of Elderly and Disabled Ministers, and of the Widows and Orphans of the Clergy of the Independent or Congregational Church, in the State of South Carolina, and their successors, officers and members, shal' be hereafter, and they are hereby declared to be, one body corporate, in deed and in name, by the name of “ The Society for the Relief of Elderly and Disabled Ministers, and of the Widows and Orphans of the Clergy of the Independent oi Congregational Church in the City of Charleston and by the said name, shall have perpetual succession of officers and members, and a common seal, with power te change, alter, break, and make new the same, as often as the said corporatioi shall judge expedient; and the said corporation and its successors, shall be able and capable in law, to purchase, hold, have, receive, enjoy, possess and retain t< itself and its successors, in perpetuity, or for any term of years, any estate ores tatfes, lands, tenements, heriditaments, of what kind or nature whatsoever ; am to sell, alien, exchange, devise, or lease the same, or any part thereof, as it shal think proper, and by its said name, to sue and be sued, implead and be impleaded answer and be answered unto, in any Court of Law or Equity in this State ; am to make such rules and bye-laws (not repugnant and contrary to the laws of tb land) for the benefit and advantage of the said corporation, as shall from timet' time be agreed upon by a majority of the members of the said Society. “ Sec. 3. And be it further enacted by the authority aforesaid. That it shall an may be lawful for the said corporation hereby erected, to take and to hold to itse and to its successors forever, any charitable donations, or devises of lands and pei sonal estates, and to appropriate the same, as also all other their funds, real an personal, to such charitable, benevolent, religious, and other purposes, for th benefit of said corporation, and of the said Independent or Congregational Churc in the City of Charleston, in such manner as may be determined by a majority (. the members thereof. “Sec. 4. And be it further enacted by the authority aforesaid , That the sai corporation shall be, and is hereby declared able and capable in law, to have, r< ceive, enjoy, possess, and retain all such estate, real and personal, mone goods, chattels, and effects, which it is now possessed of, or entitled unto, or whit j 7 has already been given, devised or bequeathed to it, by whatever name such de¬ vise or bequest may have been made. li Sec. 5. And be it farther enacted by the authority aforesaid, That this Act shall be, and continue in force, for the term of twenty-one years, and shall be deemed and taken as a public Act. f “In the Senate House, the seventeenth day of December , in the year of onr Lord one thousand eight hundred and thirty-four , and in the fifty-ninth year of the Sovereignty and Independence of the United States of America .” In this petition the Society pray for an amendment of the char¬ ter of 1789, in these particulars, viz : so that the name of the Society may be slightly altered, and that a discretionary power may be given to the Society to apply their funds to such charitable, benevolent, religious and other purposes as may not be incompati¬ ble with the objects of the Society, and which shall contribute more effectually to the accomplishment of the same. Idle recital states that the amendment has become necessary from a schism in the united congregation worshipping at the Churches in Meeting and Archdale streets, and that a division had taken place, and the Church in Archdale street had taken the name of, “ The Second Independent or Congregational Church, in the City of Charleston.” The prayer of this petition does not accord with the recital and the alleged causes for an amendment of the charter, but pray that a different name may be given to the Society, viz : “The Society for the Relief of Elderly and Disabled Ministers, and of the Widows and Orphans of the Clergy of the Independent or Con¬ gregational Church in the City of Charleston,” “and that power be given to your petitioners to apply their funds discretionarily to such charitable, benevolent, religious and other purposes as may contribute to the welfare of the said Church and corporation. Upon this petition, the Act of 1834 was enacted. The Rubric recites it to be “An act to amend the charter of the Society for the Relief of Elderly and Disabled Ministers and of the Widows and Or¬ phans of the Clergy of the Independent or Congregational Church in the State of South Carolina.” This Act has no preamble. [ Sec. First Repeals the charter of 1789, by and with the con¬ sent of the said corporation. ■ Sec. Second Incorporates anew the same persons and members ;which constituted the old Society by the new name of, “ The So¬ ciety for the Relief of Elderly and Disabled Ministers and of the Widows and Orphans of the Clergy of the Independent or Con¬ gregational Church in the City of Charleston,” with power to purchase and to sell any estates, real or pers'onal, to make such 8 rules and by-laws (not repugnant and contrary to the laws of the land) for the benefit and advantage of the said corporation, as shall from time to time he agreed upon by a majority of the members of the said Society. Sec. Third.: Provides that it shall be lawful “for the said cor¬ poration hereby erected to take and hold to itself and its successors forever, any charitable donations, or devises of lands and personal estates, and to appropriate the same, as also all other their funds, real and personal, to such charitable, benevolent, religious and other purposes, for the benefit of said corporation, and of the said Indepen¬ dent or Congregational Church in the City of Charleston, in such manner as may be determined by a majority of the members thereof. Sec. Fourth: Transfers the property of the old corporation to the new one, to wit: “That the said corporation shall be and is hereby declared able and capable in law, to have, receive, enjoy, possess and retain all such estate, real and personal, money, goods, chattels and effects, which it is now possessed of or entitled unto, or which has already been given, devised or bequeathed to it, by what¬ ever name such devise or bequest may have been made.” Sec. Fifth: Limits the charter to a term of twenty-one years, and declares this act a public act. Now, if the Legislature can make such changes in the vested rights of individuals or corpora¬ tions, it can take away those rights altogether. The power which can do a part can accomplish the whole. The decree on the ori- i ginal bill decides the following points in the general cause, and a statement of them here will aid the argument. Attorney Gen’t, I. That a charity may be created not only for the benefit of The clergy so. those who may be in existence (communities or individuals,) but sRich.Eq.p. 190. a | SQ f or (/ wse w h 0 ma y afterwards come into existence or qualify ! themselves to become objects of the bounty. II. That this Charity was founded on charter, for the Elderly j and Disabled Ministers and of the Widows and Orphans of the Clergy of the Independent or Congregational Church in the State » of South Carolina, as a denomination. III. That the Act of 1789 is the foundation of the Charity, and was not repealed by the Act of 1834, but amended so as to change , the corporate name of the Society, enlarge the powers of the trus¬ tees, and to limit its corporate existence to the term of twenty-one years but not to limit its benefits to the Church in the City of Charles- * ton alone. IV. That the Wappetaw Church is an Independent or Congre- I 9 gational Church in the State of South Carolina, and within the scope of this Charity. V. That this Court has jurisdiction to entertain this information at the relation of the Wappetaw Church; and that the relators have such an interest as to entitle them to be a party to these pro¬ ceedings. These points, although decided, have been remade in the defend¬ ant’s answers; and although I do not entertain the idea that they will be re-opened and reviewed under these proceedings, I will, in the course of this argument, notice them in a general way, as they more or less affect the important issue. The general positions taken by the defendants, and upon which they chiefly rely to sustain their defence to the relator’s complaint, are these: First. That the Legislature can constitutionally annul or modify the charter of an eleemosynary corporation with its own consent, so as to enlarge the scope of its charity. Secondly. That even if the Legislature had not the power, con¬ stitutionally, to amend the charter of the said Society, as it has done by the Act of 1834, yet the Society having kept within the purview of that act in the appropriations complained of—that the State is estopped from arraigning the said Society through her Attorney General, or on the relation of a relator, for a breach of trust. Thirdly. That no one is competent to arraign this Society, or these defendants, in this Court, for a breach of trust except some founder, donor, or beneficiary, entitled to or interested to make the question. Fourthly. That the Act of 1834 is constitutional and legal, and not within the purview of the provisions of either the State or United States Constitution prohibiting the passing of laws impair¬ ing the obligation of contracts. Fifthly. That the said Society being, by virtue of its incorpora¬ tion, in law the assignee of all persons, dead or living, who stand to it in the relation of founder or donor, and the only contracting party with the State whose consent was legally and constitution¬ ally necessary to a repeal or amendment of the charter of the said Society. With this opinion as to their legal rights, the Society applied to the Legislature of South Carolina for a repeal of theJict of 1789, and upon that application the Charter of 1789 was repealed, and 10 the Charter of 1834 granted in lieu thereof. If the diet of 1834 is constitutional and valid, the old corporation created by the Charter of 1789 has been abolished, and a new corporation created in its stead; and to this new corporation the Legislature has transferred all the property, privileges and immunities of the old. It has been said that these corporations are the same, but that the cor¬ poration created by the Act in 1834 is distinct from the corporation created by the Act of 1789, is easily ascertained from the fact, that they are different in every essential necessary to the legal existence of a corporation. The essentials by which a corporation is recognized in law as one body politic, are its name, powers, rights and duties. Although in this case the same individuals were re-incorporated, the two corporations have different names, different powers, different uses, and different beneficiaries. Before the Corporation of 1834 came into being, the Corporation of 1789 had ceased to exist. The Act of 1834 itself declares the Act of 1789 to be repealed, and proceeding upon that view of the case— that the old corporation was at an end, and that all its functions had ceased—incorporates the new Society, transfers to it all the property of the old Society, and gives them power to use the funds so transferred for the benefit of objects foreign to the foundation of 1789. Although it has been decided that the Act of 1834 was an amendment of the Act of 1789, the effect of which was to change the corporate name of the Society, enlarge the powers, and limit the charter to twenty-one years; but jlot to limit its bene¬ fits to the Church in the city of Charleston alone. It is manifest that this act does impair the rights, destroy the vested uses of the bene¬ ficiaries, the cestui que trusts, and invade the property and powers of the Society under its original charter as a corporation, and as the trustees of a charity. There can be no question that, under the Charter of 1789, the Society became the legal owners of all the property acquired under that charter, and so far as to pass the legal estate, were the assignees of the donors or founders; and neither is it to be questioned that the ownership in the property, and the acquiring the legal estate, was coupled with a trust for the use of the beneficiaries, and for that purpose alone, between which and any ordinary assignment for the benefit of creditors, or for the issue of a marriage under a deed of marriage settlement, there is no difference, in law or in equity. 77 Jr -> 42< the Dartmouth College case. It has been well said “ that in early 4 Wheaton, 618 . times it became a maxim, that he who gave the property might regulate it in future.” Although the charter proceeds from the State, it is considered as the will of the donors; it is granted upon their application; it is imposed by them upon those who are to succeed them in the management, as the law of its foundation for all future time. The State granting the charter and not furnishing the fund, is in no way the founder. “The gift of the revenues is the foundation ”—Phillips vs. Berry, 1 Blackstone 480, Commen¬ taries. “ Where there is a charter vesting proper powers of government ^ com ^480 in Trustees or Governors, they are visitors; and there is no control in anybody else, except only that the Court of Equity or of Law 1 V Gree’n 72 will interfere so far as to preserve the revenues and prevent the Rutherford, perversion of the funds and keep the visitors in their prescribed bounds.” Such are eleemosynary corporations. The revenues are private funds, and there are generally many donors who obtain a charter comprising the names of all or some of them with a right of succession ; and in that manner, was this Society established as a body corporate and it is those very funds which were given or collected by Drs. Hollingshead, Keith, Smith and associates that the Legislature of South Carolina have taken away from the ob¬ jects of their Bounty and given to the Circular Church, When Drs. Hollingshead and Keith collected these funds and established this charity for the Benefit, the sole Benefit of the Elderly and Dis¬ abled Ministers and of the Widows and Orphans of the Clergy of the Independent or Congregational Church in the State of South Carolina and secured it to them in perpetuity by a charter solemnly granted to them by the State of South Carolina, they nor any one else at that time would have supposed, That that charter was at the pleasure of the corporators, and that the corporators could at any time upon an application to the Legislature have it repealed upon surrendering their trusts and have the funds applied to other uses and for other beneficiaries. They could never have believed that that charter secured no inviolable legal rights to their beneficiaries; or they would have confided their trust in their heirs, or in some other persons in whom they had a personal confidence, or they would have left it in hands of this Hon¬ orable Court, which never permits a trust to fail for the want 14 of a Trustee, and which has repudiated the cy pres doctrine as it 2 Rich Equity exists in England. The Attorney General vs. Jolly. They never could have believed that there existed any legal right or power, in the very visitors that they themselves had appointed, to destroy (heir charity and give their funds to the Circular Church. If such had been the case, they certainly would have given their funds to that corporation directly and superceded any necessity for the charter of 1789. The individual rights of the beneficiaries in all such charities as this, are always uncertain, for no one can tell who will be an individual beneficiary until one actually exists, but as a class (descriptio personarum) they have important, fixed and certain rights and interest in the revenues of the charity, for although it may be impossible to tell what individual minister will be entitled to the uses of the charity, all ministers of those churches have an equitable interest in the fund, for as soon as there is a disabled minister he is entitled of right, secured by charter, to be a beneficiary. This uncertainty is of the very nature of charity ; as soon as it loses that essential, it ceases to be benevolence and becomes a common gift, a gratification of feeling, but not that benevolence which pro¬ ceeds from love to humanity. In eleemosynary corporations, such as we have described, the beneficiary, whether in existence or not, is entitled to the uses. It is one of the general laws of trusts that a fund may be created or an estate conveyed for the use and benefit of persons not in being at the time of the conveyance. “Such is the case in marriage settlements with power to devise” Binney. vidai or appoint. “Where is the estate beyond the life until the power Girard. is executed. It rests in no one.” A charitable use is only a pow¬ er of appointment, and the disabled ministers have a good right to the use. If the Trustees should refuse any proper beneficiary, Chancery would compel them to carry out their trust; as to that principle, see 3d Pere. Williams 146. The time when the cestui que trust shall take is fixed. When¬ ever they become old and disabled, and whenever there are widows and orphans of such elderly and disabled clergy. It is true, that no one has a right to claim until they fall into that description of person; but that is so with many other trusts of private property; for instance, where there is a power to name some one of kin to take, a remote relation may be selected. “ Uncertainty is indis- Binney. pensable to all charities. If any one has a right to claim by law, it ceases to be a charity.” The property of this Society is private property, vested in the corporators by the charter as Trustees, to 15 be administered by them according to the will of the donors, as expressed in the charter, and for the use of the beneficiaries therein appointed. The common law of the land, gives every one aright to dispose of their property in any manner they may select, not contrary to the laws of the land ; and when persons have dis¬ posed of their property for benevolent purposes, and the State has invited them so to do, by giving perpetuity to their scheme, under its charter or grant, in strict conformity with their will and pleasure as donors, “to rescind that contract and seize on the property is not law, hut violence.” When this Association ap¬ plied to the Legislature for a charter, it was then for the State to say whether and upon what terms, it would grant them the charter; but when once granted, the Legislature had no more power and control over the matter, and the charter became a constitutional right, sacred and inviolable, until forfeited. I do not suppose that any one would assert the doctrine, that this Court, a co-ordinate branch of our government, could apply the funds of this charity contrary to the foundation, or do any act by which the revenues were surrendered and destroyed. I take it to be taw, that there is no difference whether the trust be created by deed, will, or by charter; that the trust when created, is protected by the Con¬ stitution from all invasion by either the Legislature or Judicial branches of the government. The charter does not change the nature of the charity. In the Attorney General vs. Pearce, it was held “that the Crown cannot make a charity more less public, but only more permanent than it would otherwise be.” The object of a charter and of endowing it, is to keep its property, private property, and clothe it with all the security of private property. The intent is, that there should be a legal private ownership, which would maintain and protect the property for the benefit of those for whose use it was designed. The Legislature of South Caro¬ lina, by the Act of 1834, has exercised the power of controlling this fund. They recalled the old charter and granted a new one; they have taken the revenues from the old beneficiaries and given them to the new. I have shown the nature and character of this Charity, and that the trustees possessed vested rights, privileges and immunities, coupled with sacred trusts, and that the beneficiaries have also important interests and rights under the charter of 1789; and that those rights, privileges and immunities, once lawfully obtained, are as inviolable as any other right of property. Webster. 2 Atk.87. 16 If such he the true nature of the charter and of the rights of the respective parties to it, the Act of 1834 infringes the second sec¬ tion of the ninth article of the Constitution of the State of Soulh Carolina, which says, “ That no freeman of this State shall be taken, or imprisoned, or disseized of his freehold, liberties or privi¬ leges, or outlawed, or exiled, or in any manner destroyed or de¬ prived of his life, liberty or property, but by the judgment of his peers, or by the laws of the land. Nor shall any bill of attainder, ex post facto law, or law impairing the obligation of contracts, ever be passed by the Legislature of this State.” ,The beneficiaries, under the Charter of 1789, had legal rights and equitable interests in the funds of the Society. They had acquired property, or rather the uses of property, under the charter. The charter was a grant by the State in their behalf, and they were just as much entitled to the uses and benefits derived from it as property, as any other property they might have; or if the grant had comprehended land, instead of uses under a trust. The Act of 1834 recalls the Charter of 1789, deprives these beneficiaries of all their rights of property, privileges and immunities under it, and appropriates the funds to new uses and for new beneficiaries. The beneficiaries cannot now enjoy the benefits which were originally intended for them by the founders of the Charity. The Act of 1834 has placed it in the power of a majority' of the new corporation to appropriate the entire fund to the Circular Church and its pastors : by which all the othe*r Churches are deprived of their rights. The frsl part of the third section of the ninth article says: That no freeman shall be deprived of his property but by the judgment of his peers or by' the laws of the land. Now this Act of 1834 deprives all the other Independent or Congregational Churches now in the State, or to be hereafter in the State, of their property in these funds, without a judgment by their peers or by the laws of the land. I do not presume that any' one will deny' that the right to the uses of or in the funds granted by the charter to the cestui que trusts, are property, and as much so as that bestowed on any other cestui que trusts by a deed or will, individuals or corporations. By this act the Legislature has declared that the old charter was forfeited, and has resumed its grant once granted. It has done so without a trial; no judgment of the peers had been pronounced upon it. The parties have been deprived of their property'. This is a judicial act, only' to be performed constitutionally by a co-ordinate branch of the Government. It is not in the power of the Legis- 17 lalure to do it; and in this case they have even gone further: they have not only deprived these parties of their property, but they have given it to others. If the constitution means anything when it says that no one shall be deprived of his property with¬ out a judgment of his peers, this Act is a violation of that part of our solemn compact, which requires that all such questions are to be tried by the laws of the land. Now, is this Act within the spirit and letter of our constitution as a law of the land?—to ascer¬ tain which, we must see what are laws of the land. First. “ It is a rule, not a transient sudden order from a superior to, or concerning a particular person, but something permanent, uniform and universal; therefore a particular Act of the Legisla¬ ture to confiscate the goods of Titus, or to attaint him of treason, does not enter into the idea of a municipal law; for the operation of this act is spent upon Titus only, and has no relation to the community in general.” Mr. Webster, in his Dartmouth College speech, says, that “Lord Coke is equally decisive and emphatic, citing and commenting on the celebrated 29th chapter of Magna Cliarta, says, ‘no man shall be disseized out, unless it be by the lawful judgment, that is, verdict of equals, or by the law of the land, that is, (to speak at once for all,) by the due course and process of law.’” We here see from these great authorities what is meant by the law of the land— that it means due course and process of law — that is, the general law. The law which is already known and established, and is applicable to every individual in the State ; a law which proceeds upon notice, hears all parties in interest upon the trial, and pronounces its judgment after a fuli trial, That is the meaning in the Constitution, when it says by the laws of that land, and that is the meaning when it says that no freeman shall be deprived of his property, but by the laws of the land, and that every freeman shall hold his property protected by the gene¬ ral laws which govern the land. If Lord Coke, if Mr. Webster, is right, if the Supreme Court of the United States is right, “every thing which may pass under the form of an enactment is not therefore to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments, decrees and forfeitures, in all possible forms would be the law of the land.” Such con¬ struction would render the Constitution a dead letter, and would establish and concentrate all the powers of the government in one 2 i 1 Black. 44. Co. Ins. 46. Webster. 18 of its branches. We would have no permanent laws to live under,- and every man’s life and property would be subject to the preju¬ dices or enmities of a majority. The Judiciary would cease to exist but in name, and the Judges would no longer declare the law and administer the law, but they would only declare what the Legis¬ lature had enacted. We will now ask the question, has the charter of 1789 been taken away, and have the cestui que trusts lost their rights and interests under it according to the laws of the land ? Even if this could be made to appear, would the Legisfature have the right to give the funds to others, being charitable funds which did not belong to them, when they were appropriated by them under the Act of 1834, and which never did belong to them at any time, and which was secured by their previous charter expressly against the State forever? There could be. but one answer to the ques¬ tion—that there has been no forfeiture or misuse. There has been no trial, no judgment, no proceeding, according to the laws of the land, and yet the Act of 1789, a charter, a grant from the State, solemnly granted, under which the power to hold property has been acquired, and the right to enjoy property given, has been re¬ called, repealed, and a new grant issued. It has been contended that the Act of 1834 does not repeal the Act of 1789. I think it does; but if it does not, it essentially impairs it, and no one will say but that if the Legislature can lawfully do what it has done, it may do whatever it may choose in relation to the corporation, its funds, and its beneficiaries. If then the Society, established by the Act of 1789, is a lay eleemosynary corporation, a private charity, its property, private property, and if the corporation are trustees and take a legal title to hold the property for the benefit of the cestui que trusts, and if the cestui que trusts have any vested rights and equitable interests in the funds and property of the Society, secured by that charier, (1789,) this act has violated that property, has taken away those vested rights and equitable interests. In either way they may be regarded, for in both cases they are entitled to the protection of this Court. It denies the cestui que trust the right to the protection of the law and of this Court to compel the trus¬ tees to a faithful execution of the trust, and to enforce the will of the donors. I think it is admitted law, that the State, by its Courts of Law or Equity have the power to enforce the will of the do¬ nors, and to compel a faithful execution of the trust. That they have also the power to declare a forfeiture for nonuses or misuses, and under the Constitution of the State, there is no lawful power 19 anywhere else which can deprive the trustees of their rights and interest; and in these respects the Act of 1834 is void, inasmuch as it is against the Constitution of the State of South Carolina. The relators will further contend, the Act in questio'n is repug¬ nant to the last clause in the same article of the Constitution of this State, and to the 10th section of the first article of the Consti¬ tution of the United States. The material words in the State Constitution are as follows : “ Nor shall any bill of attainder ex post facto law, or law impairing the obligation of contracts, ever be passed by the Legislature of the State,” and in the Constitution of the United States. “No State shall pass any bill of attainder ex post facto law, or law impairing the obligation of contracts.” The important words in both Constitutions are the same, showing that as far as this State was concerned, both in her Federal and State governments, that that principle of sound legislation was deemed essential to her social compact. To be secure in person and property, to have that security established upon fixed prin¬ ciples and governed by the laws of the land, is the foundation of Society, and the great constitutional bulwark of American liberty. That the diet of 1789 is a grant , and that the grant is a contract, and that a contract of that kind is one, that is, within the meaning of both the State and the United States Constitutions, are ques¬ tions which have been fully decided in the Dartmouth College case, and it would be presumption to say anything upon that head; so I will regard those propositions as settled law, and pass to the question, if the Act of 1789 be a contract, does the law of 1834 im¬ pair its obligations ? What is a contract?—“a transaction between Powsii.p.e. two or more persons, in which each party comes under an obliga¬ tion to the other, and each reciprocally acquires a right to what¬ ever is promised by the other.” A corporation is defined by Blackstone, “ to be a franchise.” To this grant there are three 2 B1 ’ k - Com - 37 - parties, the State, the persons for whose benefit it is created, or the Corporation as Trustees for them, and the Donors; the validity of which, depends upon the assent of all the parties. The subjects of the grant are property; the right to acquire and hold property In perpetuity ; certain obligations are imposed on all the parties to he contract. The State, in granting the charter, parts with its prerogative, never to be resumed (Foy vs. The University, Terret 2Hey 9 Chn ch is. Taylor,) and it is an implied contract with the other parties, lot to re-assert the right to grant the franchise to another, or to mpair it in any way. There is also, an implied contract with the 20 1 donors or founders, or such persons as they have delegated to represent them, that they should have a right to visit and govern the corporation, and in case of a dissolution, the reversionary right of the founders to the property, should be preserved inviolate. The corporators acquire a right of perpetual succession, of suing and being sued, of purchasing, holding, and selling all kinds of property, of having a common seal and making rules and by-laws for their own government, not contrary to the laws of the land. The obligation imposed upon them, and which is the real consid¬ eration of the grant is, that they would act up to the design of the founder, and for which purpose alone, they were created. “ If they fail to perform their part, there is an end of the compact.”— 3 t.r. 286 . King vs. Pasmore. stoney. “There is also an implied contract between the corporation and Dartmouth Col- 1 . 1 lege case. every benefactor, upon a like consideration, that it would admin- ister his bounty according to the terms and for the object stipulated in the charter.” If such are the principles which govern cases of this nature, we have shown that the charter of 1789 was a grant, a contract; we have shown the obligations imposed upon the contracting parties; we have shown the rights, privileges and ad¬ vantages which they have acquired, on the one hand, and which have been bestowed by the State, on the other; we have shown that such a grant cannot be resumed, and in case of dissolution of the corporation, there is a reversionary right to the funds in the founder or donors, or, in a case like this, where the founders or donors are not in being, in such trustees as this court may appoint acting under its general jurisdiction, as to trusts; we have shown that such a contract canfiot be impaired without violation of the 4 Wheaton, 51s. constitution of the State and of the United States. The Dartmouth College case alone, is sufficient authority for that purpose. We have only then to show that the Act of 1834, is in violation of those principles, and it is void, which is a matter of evidence. The act of 1834, in the first place, repeals the Act of 1789, and by which repeal the grant of 1789 is recalled, which is in violation ; of the obligation of the State that it would never re-assert the right to grant the franchise to another, or impair it any way. In the sec¬ ond place, the Act of 1789, granted the power to the corporation to hold and sell property, real and personal, and to apply the revenues to the objects of the bounty, for all time —it was perpetual. The Act of 1834 is limited to twenty-one years ; and is not that a male-\ rial difference in the contract '! Does not that violate the obligation! 21 of the State with the donors, Drs. Hollingshead and others. Those were not the terms upon which they gave their money. They intended a fixed, permanent and certain charity. One may as well say that a term of years, or a life estate in property, is equal to an absolute and unqualified right, a fee simple. By the perpet¬ ual charter, the State assured the donors that their beneficiaries should enjoy their bounty for all time. The Act of 1834 limits it to twenty-one years, and the obligation of the contract is impaired in that respect. In the third place, by the Act of 1789—(the deed of trust)— the cestui que trusts or beneficiaries and the sole cestui que trusts or beneficiaries of this Charity, were the Elderly and Disabled Ministers and the Widows and Orphans of the Clergy of the Inde¬ pendent or Congregational Church, in the State of South Carolina, and the Society was called by that name. So clear, so determined were the donors in their purpose, and wishing to be clearly under¬ stood to that effect, they not only gave that class of persons their bounty, their charity, but they even called the Charity by their name. The Act of 1834 abolished that corporation and created a new one, called by a new name, and with new beneficiaries. The new corporation is called “ The Society for the relief of Elderly and Disabled Ministers and of the Widows and Orphans of the Clergy of the Independent or Congregational Church in the city of Charleston,” and the beneficiaries are this new corporation, and the Church of that name in the city of Charleston. The act of 1834, therefore, changes the charter in that respect, and is in violation of the solemn contract of the State with the donors, that their bounty should be bestowed on those for whom they intended it—but there is another obligation growing out of this contract, and one which is equally to be held inviolable : that is the contract between the corporators and the donors, which con¬ tract is reached by the common law of the land. The corporation have contracted with the donors to administer their funds accord¬ ing to the terms and for the objecis stipulated in the charter. Is not the Act of 1834 in direct violation of the obligation of that con¬ tract and are not the corporators amenable to law for such viola¬ tion. The rule of law is clear—where one party violates his contract, the contract is at an end, and he has no more rights in the premises, and the right of property reverts to the donors. If the changes I have enumerated are not essential changes, impair¬ ing the rights of the cestui que trusts, and vitally affecting the in¬ terests and organization of the Society under its old charter, in 22 fact, if they do not abolish the old charter, it would be difficult to comprehend what was their effect. If these principles are correct legal principles, the Act of the Legislature of South Carolina now in question, impairs the obligation of the charter of 1789, and is consequently unconstitutional and void. But it has been conten¬ ded that all this is very right, and that the act would have been unconstitutional and void, if the corporators had not assented to those changes — if they had not become parties to the transaction, and willingly surrendered their trust. In fact that they themselves applied to the Legislature to give them power to transfer the prop¬ erty which they had contracted to hold for one class of persons to another. I shall proceed to show, that the Trustees of the charity, the corporation, could not consent to the Act of 18:14, because they had not the right to consent, and an unlawful consent is no consent, and cannot divest persons of their fixed lights and interests in property. The relators contend that the corporation took the funds of the donors as Trustees for the beneficiaries, and that a trust must always b.e accepted upon the terms and for the objects for which it was intended. They as trustees could lawfully do no act by which they would denude their trust and impair their con¬ tract with the donors and violate these duties as Trustees. The Court of Chancery in this State has a general jurisdiction in all matters of charity where the revenues are managed by Trustees, . and a bill will lie to compel the Trustees to apply the revenues according to the foundation. This general jurisdiction arises upon the principle of trusts, as all trusts are under the supervision of this Court. It is the tribunal, where those who are unable to protect themselves, eitherin person orproperty, can either in theirown name : or in the name of the State, obtain that protection which every govern- J ment owes to its incapacitated citizens. Under this jurisdiction the benevolent may be assured that the objects of their bounty will be protected in their rights and interest, when once secured to them by | a lawful charter, for a thousand generations; the believer in a certain | religious faith may provide for the laborers for him in the vine¬ yard, and be assured that his bounty will be protected by the laws of the land. We are indebted to the English Chancery for this practice. The general principle is found in 2 Fonb. Equity 207. “As the preservation of every private man’s goods is the preserva¬ tion of the commonwealth in general, so anciently in this realm there were things which belong to the King as Parens Patrie and fall under the care and direction of this Court, as Charities, Infants, 23 Idiots and so forth, the chancellor was always regarded as the keeper of the Kings conscience • with us the State is Parens Patrie and the same offices and duties in relation to the same classes of persons devolve on our Courts of Chancery. In charity cases, the practice has adopted several modes of redress, according to the na¬ ture and character of the charity. There is but one mode which con¬ cerns us in this case, namely an information filed by the Attorney General at the relation of a Relator. If the charity be created by charter and the donors incorporated, they have their visitorial pow¬ ers, and if they manage the revenues they are trustees; I have previously shown that this corporation is a lay eleemosynary cor¬ poration, and one as to which the rules applicable to civil corpo- tions do not apply. Lord Mansfield said, in pronouncing judgment in St. John’s College case : “ The foundation of colleges are to be considered in two views, as they are corporations, and as they are eleemosynary: as eleemosynary, they are the creatures of the founders; he may delegate his powers either generally or specially; he may pre¬ scribe particular modes and manners as to the exercise of it.” Where a charity is established by charter, the revenues are its foundations. It is the creature of the donors, and its objects can only be ascertained from the charter expressing the will of the donor. The corporators managing the revenues are trustees. In a charity of this kind, where the cestui que trusts are not in exist¬ ence, but liable to be in existence, the corporators are trustees to pre¬ serve the uses to their benefit, as the trustees represent the interest of all, and hold the legal title for the benefit of all, there can be no complaint, unless there is a breach of trust; then the mode of pro¬ ceeding is in the hands of the Attorney General, with a relator who may or may not have any interest in the subject matter. In the Attorney General vs. Middleton, it was held, “That the inter¬ position of the Court must be referred to the general jurisdiction of the Court, in all cases in which a trust conferred appears to be abused.” Story’s Equity Jurisprudence to the same point. In this case there are two questions: an abuse of trust, and to restore the revenues of the Charity to its original foundation. I refer also to 3d Black. 427: Whenever it is necessary, the Attorney Gen¬ eral, at the relation of some informant who is actually called a Ilrelator, files, ex officio, an information in the Court of Chancery, ;o have the Charity properly established. Mr. Hill to the same point: “Any question affecting a charitable trust may be brought 1 Burrowx, 200. 2 Vesey, Sr., 328. Sec. 1191. 3Bl’k.427. Hill True. 067 and 668. 24 before the Court by information in the. name of the Attorney-Gen¬ eral.” Where it is sought to administer or control an established charity under the direction of the Court, there must be an informa- 12 40 -’ k ' and Fin ' ti° n by the Attorney General. Neither long acquiescence nor the want of a relator will affect the Attorney General’s right to pro- t Rnsseii 236. ceed, and the relator may or may not have any interest. Where the Court has undertaken to regulate a charity, it will act without any actual complaint, when circumstances come under its notice sections. which require a remedy.-Story’s Equity Pleadings. The 1 Rich. e. 106 . leading case in our books is The Attorney General vs. Jolly, 2Rich. e. which was followed by the Presbyterian Church case, where it was held—‘‘That where a fund was in the hands of trustees for the benefit of a Church, a bill will lie to compel the trustees to apply the funds to the purposes for which it was created.” I have now shown that we have a right to complain, and that we are properly before the Court, and will proceed to show that the corporation have not discharged their duties as trustees of this Charity. The facts are all admitted, that the corporation is trustee, . and as a trustee stands upon the same footing as an individual.— 2Vesey,Jr.,40.g ee The Attorney General vs. The Foundling Hospital; The At¬ torney General vs. Jolly. We contend that it is law that the trus¬ tees should manage and dispose of the trust property as may best 4Beaver45S. promote the charitable purposes of the founders, and that they 2 Bear. 428. should be guided on/y by a desire to promote the lasting interest of the Charity. In the celebrated case of The Attorney General vs. ■2 Russell, 522 . The Earl.of Mansfield, Lord Eldon said: “My duty is to enforce the trusts as they stand. The founder was the person to say how far his institution was likely to be useful to the public.” How well may such doctrine be applied here! In what bold relief do they* stand forth to vindicate this Court, and to uphold it in the dis- 3 MenTiiie, 35S. charge of its duty! In- another case—The Attorney General vs. Pearson—his Lordship said: “I apprehend, that when a man gives his money to such an institution for a civil purpose, one of the duties of the Court is to take care that t se who have the management of it shall apply it to no other pu ose, as long as it is capable of being applied according to the 01 p'nal intention.” It is certain that the beneficiaries under a charter of this kind have such rights and interest in the revenues of the charity as to entitle them to the protection of this Court, and that the Corporators take the fund for their benefit, and can do no act by which the trust will be denuded, and that they have no such legal title as will 25 •ntitle them of right to dispose of the trust funds ; such are the lecisions of our own Courts. In the case of Bush vs. Bush, it vas held to be an acknowledged principle of this Jurisdiction, ‘That the power of the Trustee over the legal estate or property jested in him, exists only for the benefit of the cestui que trusts ; is a general rule he can do no act as legal owner which prejudices he rights of the cestui que trusts ; neither the fraud nor folly, leither the ignorance nor laches will be permitted to prejudice the '.estui que trusts. In Guignard vs. Mayrant, “ The waiver of a Trustee of the rights of his cestui que trusts, by a contract executory in its character and without a valuable consideration in behalf of a party who was aware of the rights of the cestui que trusts, will not he enforced to the prejudice of the trust estate. We cannot have principles more clearly or more equitably defined, and if this Court means to adhere to them, if they have become a part of the law of the land and are not mere sentences against Bush and against Mayrant, the corporators in this case had no right to consent to a repeal or amendment of the charter of 1789, and they are fully within the purview of both decisions. By consenting they have violated that general principle of this Jurisdiction. That they hold the legal estate only for the benefit of the cestui que trusts and can do no act as legal owners which prejudice the rights of the cestui que trusts ; and what have they done in this case. They have actually consented to and done an act which deprives their cestui que trusts of their rights and interest in the revenues, and they have exercised the legal ownership for that purpose : they have waived the rights of their cestui que trusts, without any consideration in behalf of a party who was aware of the rights of the cestui que trusts. If these cases are law, this consent is nugatory, and the case stands upon the same footing, and is to be governed by the same authorities as if the Act of 17H9 had been repealed without the consent of the Cor¬ poration. The general rule is, that “a charity must be accepted upon the same ter -s upon which it is given, or it must be relinquished to the right he. Finch Term Reports 221, the Margaret and Regius professor jn Cambridge, held “ that a charity cannot be altered by a new agreement between the heir of the donors and the donees, where several distinct charities are given to a Parish for several purposes; no agreement of the Parishioners can alter and divert them to any other purpose.” There is a Connecticut case which is very much in point; Langdon vs. The Plym. Cong. Ass. 1 Stro. E. 377. 3 Stro. E. 112. 1 Vernon, 55. Story Eq. Juris 1075. Ambler 373. 12 Com. 113. 26 In that case it was decided that in an ecclesiastical Society fo: the support of the Ministers of the Gospel in said Society, j permanent fund being subscribed among themselves for that purpose the Society could not he destroyed by a vote of the majority , even bj returning the money to the original owners, after having accepter the funds subject to the terms prescribed by the donors. This is j case directly in point, for it is alleged by the Defendants that the Charter of 1789 was repealed with the consent of the Corpora tion by a majority vote. If the case quoted above is law, this is no longer an open question, and the Trustees cannot consent and destroy the old Corporation ; this case was decided upon general principles, which are these: that a charity must be accepted upon the same terms upon which it is given, and that where all the parties to the contract had assented to the contract, donors and donees, it could not be repealed, altered or amended without their several consent. Mr. Finley in this case, on the similar occasion, represented the minority, and reported his views to the Society. (See Appendix.) I have shown that the Act of 1834 is unconstitutional and void, because it is repugnant to the Constitution of the State of South Carolina, and of the United States, inasmuch as it deprives free¬ men of their property without a trial' by the judgments of their peers, and by the laws of the land, and because it is a law im¬ pairing the obligation of contracts. I have shown that a Trustee cannot denude his trust , that he takes the legal ownership only for the benefit of the cestui que trusts and cannot do any act to pre¬ judice their rights, that he can do no act to waive their rights, by any contract executory in its character and without a valuable con¬ sideration in behalf of a party who was aware of their rights and consequently that the Corporators could not legally consent to the repeal of the Act of 1789, so the Act of 1834 was, legally speak¬ ing, a repeal without the consent of the Corporation. I have shown that this Court has jurisdiction of this case, and that we have a right to complain (and the important facts being admitted,) that we are entitled to such redress as the nature of the case admits. We contend therefore, that where there has been an abuse or misuse of the funds of a charity, this Court will make such rules and orders as will secure the application of the fund within the prescribed channel, and will direct an account; and in case of gross abuse or misuse, commit its administration to other 27 fnds. There is no distinction recognized whether the Trustees E 3 individuals or a Corporation—Greenes. Rutherford. The 1 versejs Jr., p. {inciples upon which the account is to be taken, will he found in te Attorney General vs. the Bailiffs and Burgesses of East Red foi d. 3 M. & k., 457 . But we have another mode of redress, that of following the funds :to the hands of those who have received them, and we will intend that there is a general right in Equity to follow a trust Ind wherever found, so long as it can he designated as such. If ie Act of 1834 is not valid, no one will deny hut'that donations i the Circular Church are misappropriations of the funds of the rarity; that they have been received by that Church is admitted, j.d that that Church had notice of the trust, is fully established, id that they were volunteers, giving no valuable consideration, Its been proved. I will now establish upon authority, the •inciple that has been laid down, and cite Moses vs. Montgomery. 1 *<*“• ch. 128 . i exter vs. Stewart. In one of our own cases, McNeil vs. Mor-Wo 55 . Rich- . , Equity cases, 175 w, it was held “so long as property held in trust, or a trust nd can be tracecl, it will enure to the benefit of the cestui que ust,” and there is no difference whether the fund be in land or oney. The right to follow it into the hands of a purchaser for iluable consideration with notice of the trust , or into the hands of volunteer without notice of the trust, is equally clear. The pur- laser, under such circumstances, is an implied or constructive ustee for the benefit of the cestui que trust , and for the purposes 7 the trust, and I shall furnish the Court with authorities as to ie several forms into which such property may be converted, and row into whatever form it may be turned j wdiether land, money, r money converted in-to land, it is all the same. The trust is not ) be got rid of, and upon that principle, depends more than any ther the importance of this jurisdiction, its great value to the : hole country. It is there that the weak and impotent may seek rotection, not only from the world at large, but from those who re by law constituted their guardians and protectors. In Man- ell vs. Mansell —(this was land in trust, and the trustee held the 2 Pere w. 682 . tie for the benefit of a life tenant, with remainder over to ie heirs, male, (in tail) successively. The trustees conveyed ae premises to the life tenant.) It was held “that, had the pre- uses been conveyed to one without notice, and for a valuable con- ideration, such purchaser must have held the lands discharged f the trust, and the son of the marriage, who was injured by the reach of trust, have his remedy against the trustees alone, who 28 would have decreed to purchase lands with their own raone equal in value to the lands sold, and to hold them upon the san trusts and limitations as they held those sold by them. But ev< in the case of a purchaser, if the purchaser had notice of the trus which the trustees were subject to, us annexed to their estate, sut notice would have made him liable to the same trusts; so if the had been a voluntary conveyance made of this estate, though wit out notice; the voluntarygrantee would have stood in the placeof tl grantors, and be held liable to the trusts in the same manner i the trustees themselves were; but, in the present case, it is muc stronger; for here, alas ! not only notice of the trust, but the coi veyance itself voluntary and made to Sir Edward Mansell, tl plaintiff’s father, (who was the tenant for life) and he was himse particeps cnminis ; nay, one for whose sake and interest all th had been done.” It would be difficult to conceive a case inoi directly in point. The case of Mansell vs. Mansell is this. The Trustees an one of the beneficiaries have here as there, consented to a grat (The Act 1834) to convey the trust estate to the absolute use < one of its own beneficiaries, the Circular Church, who was not only volunteer, but a volunteer with notice, and is within the scope ( this case. The act of Mr. Vaughan was decided to be a breac of trust upon the reasoning that it seemed to the Court in conimo' sense, reason and justice, to be capable of no other construction For when Trustees are appointed to preserve an estate and for n other purposes, and they, instead of preserving it, do a wilful ac with an intent and in order to destroy it, can this be otherwis than a plain breach of trust, and how can it-be made clearer tha by barely putting the case? Should this Court hold this n breach of trust and upon the principles contended for by the defend ants, it would SAeep away all charitable trusts in the State, ani all marriage settlements. If in fact Trustees are at liberty in an way to destroy what they were appointed to protect, the whole sys tem is forever gone. The same principle applies where the trust fund 3 Maul’d Selwyn consisted in money, notes, bills or stocks. The case of Taylo vs. Plummer is in point, as to following money of a trust convene' loves.517 . into land. In Lench vs. Lench, Sir William Grant held “that th' purchase was made with trust money, all depends upon the proo of the fact, for whatever doubts may have been formerly entertainei upon the subject, it is now settled, that money may be follower into land, in which it is invested, and a claim of this sort may be sup jrted by parol evidence.” The money given the Circular Church us for the most part invested in the buildings on their land, jd this authority is cited to show that the land and buildings are lb I e for the trust funds. The case of Taylor vs. Plummer is full ( to all those points. If such be the principles in general, trusts, I aritable trusts, stand upon a more liberal footing. The defend- ts have claimed that they are protected by a lapse of time. 3\v as between express trustees and the cestui que trusts, there n be no question that the statute is inapplicable —Gunnell vs. yce. But the Circular Church is in this case an implied i constructive trustee, and that implied and constructive trusts ie within the analogy of the statute of limitation. I admit that ch is the general rule, and that the rule has been recognized in jir courts in the above case. But freely as I admit the rule, I ill contend that there are as positive and as well defined excep- ons to the rule as the rule itself, and which I will illustrate, both y authority and upon principle. My proposition is, that no pse of time will bar a remedy against the constructive trustee of charily in Equity. The first exception is, that the cestui que ust will not be barred from his right to immediate relief by any ngth of acquiescence, unless he have an immediate possessory title i the beneficial interest. Mr. Hill says, “ It will be needless to add lat a cestui que trust, being an infant, or otherwise non sui juris, innot be prejudiced by any acquiescence.” And the second ex- iption is, “ that trusts for charities are not effected by the statute " limitations.”—Attorney General vs. the Mayor of Exetor, Jac. 18. The principles upon which these decisions turn are these, that acquiescence has not the same effect in barring an equita- le right, where the parties consist of a numerous body of persons, s creditors or a Society: relief has been decreed in their favor, Iter a lapse of over one hundred years; and that, there is an im- ossibility of any immediate possessory title to the beneficial iterest in such a charity; an individual beneficiary may be barred ho has acquiesced for twenty years in the perversion of the mds, but to say that the beneficiaries generally in a Society of lat sort where they are, or may in some future time become nu- lerous are barred by acquiescence is rather absurd to my mind, id at variance with the very nature and character of the Society, ut there is another exception— that is, that the claims are not arred because they are non sui juris, and cannot complain in their vn name; they stand on the same footing with infants and married Leuin 610, 2 Rich. E. 260- Hill, 376, Top Paying, Idem. 30 18 Beav. 223. « 17 Bear. 435. women. They have no capacity to assert their rights, and no o can hold adversely to them; they come into Court in the name the Attorney General, the law officer of the State; and the statu does not apply to such proceedings. The law is, that “ T1 Attorney General, whether suing ex officio, or at the relation, not a person having a right to bring an action or a suit in Equill to recover land within the Statute of Limitations.”—“Where? 1 person, or class of persons, have existed who could institute pr! ceedings to redress a wrongful alienation of charity property , tl Statute of Limitations does not bar suits by the Attorney Genera whether ex officio or at relation, to redress the injury.” The Atto ney General, at the relation, vs. The Magdalen College, Oxforc This judgment chines down to our times, 1854, and is a review i all the cases necessary to this subject. In this case it was als held—“That the alienation of charity property is as much a breac of trust if it is conveyed to another charity, as if it were alienate to an individual.” So the funds having been appropriated for th benefit of the Circular Church, another charity, can make no di ference at all. In that case, which was similar to this in man points, Sir John Romilly said—as his Honor did say here— “I d not see the slightest cause for imputing any sinister motives, c that the parties did not think they were acting for the best; br they committed an error of judgment, and the transaction cannc be supported.” In the case of The Attorney General vs. St. Cros Hospital, it was held that—“In cases of charitable trusts, th Court has authority to see them properly performed, notwithstand ing there may be a general or special visitor.” That case is on of considerable interest among charity cases. “By chartei dated in 1141—it took its origin. Henry de Blois, Bishop c Winchester, brother of King Stephen, committed to the guai dianship and administration of the Master and Brethren of th Hospital of St. John of Jerusalem, the Hospital of the Poor c Christ or St. Cross, for the support, maintenance, lodging an' clothing of thirteen poor men, who should reside there perms nently.” “ Besides these thirteen poor men, one hundred othe poor and modest persons, of the most indigent that can possibl be found, shall be received at the hour of dinner, to whom a coarse loaf of the same weight (as above,) shall be given, and one dis as shall seem meet according to the convenience of the day, an a cup of the same measure; and having left dinner, may be a lowed to take away whatever of food or drink, shall be left over. 1 31 very large property was bestowed by the Bishop, including reral Churches. By a charter from the Second Henry, the Dspital of St. John assigned the Hospital of St. Cross to Richard : Jocelyne, the then Bishop of Winchester, in 1185, who added other hundred poor, and granted certain property to the Hos- :al. The recital cjearly expressed the continuance of the trust tich had already been created. By a grant from King Richard I, 3 trust became again vested in the Hospital, dated 10th Sept., 89, repeating the original trusts afterwards. By an award of a pal commission, and by release from the Hospital of St. John, 3 guardianship became finally vested in the Bishop of Win- ester. In 1336, a commission was issued to inqhire whether 3 custody of the Hospital was without care of souls, and could held with another ecclesiastical benefice. The finding was, at the Hospital was free. “Both before and after the commis- hn, great irregularity prevailed in the administration of the arity.” The mischief was unremedied until William of Wyke- n, became Bishop of Winchester. He claimed the right of visi- .ion, and called on William De Stowell, the then master, to count for the administration of the charity. At first, he resisted, ,t afterwards submitted. In 1370, he issued another commission inquire into the irregularities and the state of the Hospital, r Roger De Clowne was then Master; he pleaded that the Hos- ' tal was a perpetual benefice, sinecure, free from all accounting, le Commissioners decided against Sir Roger; he appealed to jpe Gregory IV, who issued his Bull to the Bishop of London, recting him to adjudicate and decree what was just. The shop in 1373, decreed against Sir Roger; compelling him to : aintain the ordinances of the said Hospital, as a simple ecclesi- tical benefice according to the foundation. “In 18th Elizabeth, a statute was passed, -which, after reciting that the Hospital of St. Cross, near Winchester, was founded in e time of King Stephen, and having continuance ever since with indry confirmations by the Gueen’s most noble progenitors, from ne to time, for hospitality and relief of the poor,” and after citing that Dr. Reynolds, master of the Hospital, had procured ases to be granted, secured by the seal in his custody to Ralph leverly, to the impoverishment of the same, and in violation the trust reposed in him, “enacted that the leases so made ould be utterly annihilated and made void; that no others should i granted;” “that the Hospital should be thereby established 32 1849 1696 153 years. and confirmed for ever,” “and its property shall be enjoyed by for ever,” to be employed and bestowed to those goodly and char table uses, for the relief and sustenance of the poor, accordin to the lawful orders and consideration of the foundation of tb same. Notwithstanding the repeated defeats of the masters t appropriate the revenues in 1696, a document called the “Cor suetudinarium,” was drawn up by Dr. Markland, the then Masje This document recited that no statutes could be found directin the government and regulation of the Hospital, and that it shoul hereafter be governed by the customs hereinafter stated, by wliic it was provided that the master shall rule all persons in the ho: pital, and slfbuld receive all the revenues, bear the whole charg of the house, keep the church and house in repair, and the ove: plus, if any, retain to himself; that he should appoint the Stew ard and Chaplin. This document was confirmed by the Bisho in 1696, with a proviso that nothing therein should derogate froi the statutes of the founder, if any should appear. At that vet time the statutes were in their possession, in the strong box of tb Hospital. From 1696 to 1849, the Hospital, with some triflin alteration, had been regulated by the “ Consuetudinarium.” I 1849, an information was filed against the then Master, tb Earl of Guilford, and the Bishop of Winchester, praying a scherr for the regulation of these charities, and a declaration the “Coi suetudinarium,” was not a valid or binding document among otln matters and for other relief, all tending to carry out the original trust It was held that it was the duty of the Court to enforce the trus as they relate to the original charity , and it was so decreed in 185' one hundred and fifty-three years afterwards. Notwithstandin these repeated attempts to defeat this charity, and notwithstanding was perverted for over a century and a half, it was, by the meat of an information in this Court of Chancery, that it was restore to its original foundation,. It was said by the Master of the Rolls, in speaking of the Coi suetudinarium: “To say that a practice so created, and under sue circumstances, merely because it has continued fora century and half, is toprevail against the manifest trusts imposed by the origin foundation, would be contrary to the doctrine daily enforced by tl Court, and would be to give a direct premium to fraud in the a ministration of charities.” “ Presumption, arising from time, h; nothing to do with this case.” The many singular features exit ing between this great case and the case now before the Court, hi 33 induced me to state it at large, hoping that it may serve to guide as to a right decision. As authorities that lapse of time will not bar this remedy against the constructive trustee of a charity, I would refer to Adams’ Equity, 230, 231, 232. The Attorney Gen- 3 ral vs. Christ Hospital, 3, M. and K., 344; Sugden on Vendors md Purchasers, 436; Story, Equity Jurisprudence, 2 vol., sec. 1192; the Commissioners of Donations vs. W’y Crouts. Sir Ed¬ ward Suo-den said : “Now, the old statutes did not interfere with \quitable rights , but Equity, in analogy to the legal provisions, held dme to be a bar, except in some peculiar cases, of which charity was the leading one.” And again: “By the ancient rule of Equity, no me could acquire an estate with notice of a charitable use without jeing liable to it.” I apprehend that I have now shown that he Attorney General has a right to follow the funds in the hands )f the Circular Church ; that there is no material difference whether the fund be land, money, or money converted into land; 'hat the remedy against a constructive trustee for a charity is not 'jarred by lapse of time. It has been said, on several occasions, md in the answer of the defendants, that the State has been ^stopped by the Act of 1834. I confess I do not comprehend the orce of the object. The Legislature is not the State. I leave it or the other side to show upon what authority the State could be .“stopped, by an unconstitutional Act of its Legislature. I have seen unable to find a case at all applicable to the point. The Legislature is not omnipotent. It is but a co-ordinant branch of ;he government, and is no more the State than the executive or judicial branch of the government; and it is the province of this Jourt, so far from being estopped by the Legislative Act, to go on md pronounce its judgment upon that Act, and if found uncon¬ stitutional, to sweep it away from the statute book. Much has been said as to the foundation of this Society, that it was not denominational; as to such a question we must be guided by such evidence as is to be found in the history of the Society. The word Church in the charter, used in connection with the locality specified, is to be construed in connection with such circum¬ stances as surrounded the founders at the time, and we are to de¬ rive our knowledge of what was their intention from those circum¬ stances. and those alone. The first and best evidence is the ori¬ ginal petition of 1789, in which they, speaking in their own lan¬ guage, used the word Churches, instead of Church, and State of youth Carolina, instead of City of Charleston. In the charter, in- 3 2 Jones and La Touciie, 182. 34 stead of the word Churches, as in the Petition, the Legislature, and not the Petitioners, adopted the word Church for Churches, but gave correctly the specified locality, the State of Soutli Carolina. The next evidence is to be found in the preamble and rules of the Society. The preamble begins with these words: “ As it is an obligation of the Gospel on Christians, of all denominations, to encourage and support its Ministers, who are their Pastors in the Lord.” 1. Rule, That this Society shall be called “The Society for the relief of Elderly and Disabled Ministers, and of the Widows and Orphans of the Clergy of the Independent or Congre¬ gational Church in the State of South Carolina. Rule II. provides that the anniversary of the Society be held in “ the Independent Church ” in Charleston. Rule III. requires the Secretary and Treas¬ urer to be residents in Charleston. Rule IV., clause 2d, provides that every member, residing in Charleston, who shall not attend the meetings of the Society, shall forfeit the sum of 2s. f>d. Sterling. The next evidence is furnished from the books of the Circular Church and of the Society; that the relation of debtor and creditor had existed between the Church and Society, on several occasions previous to the Act of 1834, and that the Society always, until that time, fully recognized the difference between the two corpora¬ tions; that after the Act of 1834, the Society began to recognize and treat the property as their own, first by cancelling the debts due by the Church to the Society; secondly, by guarantying a debt for the Church, and subsequently paying it, and thirdly, by making an appropriation for the rebuilding the Church; and I believe I am within bounds in saying that since the Act of 1»34, more than one half of the capital of the Society has been absorbed in appropriations for the benefit of the Circular Church; that the Society prior to the Act of 1834, was not regarded as a part of the Circular Church, and its funds a part of their property, is very fully established by their own proceedings. They deemed it neces¬ sary to have their charter amended, in fact repealed, as stated in their answer to the original bill, as soon as the charter of 1834 was granted, the rules of the Society were altered to conform tc the new state of things. All the circumstances connected with the Society, from its origin to the Act of 1834, show that it was lha intention of the founders that their charity should be denominai tional—catholic as to the State. There can be no doubt that these pious dissenters had in thei views the similar society established by the Episcopal Church foi 35 the benefit of their clergy three years previously—a society whose 'benefits have been felt from the mountain to the seaboard. If these views are correct, and I do not see how they can be other¬ wise, this charity in its origin was co-extensive with the whole State, and embraced within its scope all Churches of that denomi¬ nation which do or may exist in that prescribed locality. It has oeen said, in fact, sneeringly said, that Wappetaw Church was tot an Independent or Congregational Church, or at least not so mtil 1853,- when it is alleged that it took that corporate name vith a view to acquire an interest in the funds of this society. We will let the facts speak for themselves. It is true that the Wappetaw Church has been at different times chartered by dif- 'erent names, but it is not true that she ever had any other faith ind Church government than that professed and held by Inde¬ pendent or Congregational Churches. The Wappetaw Church vas incorporated in 1786 by “ the name of the Independent Church in Christ Church Parish,” with a perpetual charter, and in he Church articles of faith recorded in the old Church Record Book of that date is to be found her Constitution and form of gov- irnment, and is styled in that Constitution, “The Independent or Congregational Church worshipping at Wappetaw, Christ Church •’arish.” The articles of faith and form of Church government eem to have been taken from the Circular Church, as they are dentically the same in all respects save where the localities render .change necessary for such local purposes. By an Act passed in 1822, this same Congregation was re-incor- lorated with a limited charter for fourteen years, as follows: : Those who are now or hereafter shall be members of the lnde- lendent or Congregational Church at Wappetaw, in Christ Church ■'arish, be, and the same are hereby declared a body politic or orporate by the style and title of the Congregation of Wappetaw n the Parish of Christ Church,” without repealing the Statute of 786. In 1836, this charter of 1822 expired, and was renewed for ourteen years without repealing the Act of 1786, and then expired >y its own limitation in 1850. In 1853, the same Congregation vas incorporated by the name and style of “the Independent or Congregational Church of Wappetaw. During this whole period of ime this Congregation held to the same articles of Faith, Consti- Jtion and form of government. I will proceed to show the effect f the several Statutes, that the defend'ants may be informed s to the legal position of that Church; the Charter of 1786 is l 8 Stat. 134. 8 Stat. 325. 8 Stat. 448. Stat. 236. 36 SDivans on Stat. 527. Idem. 534. 2 Bailey, 334, 554. 2 Rich. E. 210. perpetual; the Charters of 1822 and 1836 were without any repeal¬ ing clause, and were only additions or amendments to the Act of 1786, and have expired by their own limitations and are of no effect at all, and have left the Charter of 1786 in full force and effect. What is the law ? It is this, that a temporary Statute con-1 tinues of force unless sooner repealed, until it expires ; a perpetual' one until it is repealed. If a Statute before perpetual be con¬ tinued by an affirmative one for a limited time, it does not amount to a repeal thereof at the end of that time. The leading case is in Lord Raymond’s Reports, 397, all Statutes on the same subject must be construed in peri materia, whether they refer to each other or not. When the last Charter was granted in 1853, the Charier of 1786 was in force. The Act in 1853 does not repeal it, and is like it, perpetual, and is to be construed as an amendment by which the name was changed. But the great principle of law upon which such matters are determined is not by the name, but the faith of the Church, and I did not presume, after the Presbyterian Church case, that it was possible for any such idea to prevail. There are innumerable instances of Churches being called by names not in any way indicative of their faith. There is the new Baptist Church for instance, which has been incorporated by the name of the Citadel Square Church ; does that make them less a Baptist Church? Surely not. I have now endeavored to bring to the notice of the Court all the legal questions involved in this issue, and as many of the facts as were necessary to give point to my argument, and before leaving the cause to the judgment of the Court, I cannot refrain from alluding to its great importance. The law of this case will be the law of all of our Charitable Institutions. The law of this case will be the law of all of our Trusts, chari¬ table and otherwise, and as one of the officers of this Court, it is my sincere hope that it will be ruled and decided in like manner as Sir John Romilly did the St. Cross Hospital case, to restore the charity to its original trusts, even after it had been perverted for' over a century and a half. APPENDIX MR. FINLEY’S MINORITY REPORT. The undersigned, not being able to assent to all of the positions taken in the report of the Chairman of the Committee, begs leave, as a member of the Com¬ mittee, to submit the following as a separate expression of his own views on the questions involved in the subject referred to them. These questions are: 1st. As to the nature and object of the original trust ; next, as to the effect of the charter of 183d; and lastly, as to the denominational status of the Wappetaw Church. On these questions the undersigned, being pressed for time, can present but a very cursory statement of his views, and 1st, as to the nature and object of the original trust, the undersigned thinks it very obvious that this question must be determined by the provisions of the original charter; this bears date March 7, 1789, and is entitled “An Act incorporating the Society for the relief of elderly and disabled ministers, and of the widows and orphans of the Clergy of the Inde¬ pendent or Congregational Church in the State of South Carolina,"’ as the Chair¬ man reports on the petition of Win. Hollingshead, Isaac S. Keith. Josiah Smith, and sundry other members of the Society, -the said Society was incorporated in perpetuity by the name and style of the Society for the relief of elderly and disabled ministers, and of the widows and orphans of the clergy of the Indepen¬ dent or Congregational Church in the State of South Carolina. It is very material to observe that the limits within which the benefactions of the Society are to be conferred and enjoyed are by the terms of the charter made co-extensive with the State of South Carolina, and are not restricted to the limits of the city of Charles¬ ton. The undersigned, therefore, is at a loss to conceive why the Wappetaw Church, of Christ Church Parish, if it be an Independent or Congregational Church, is not as well entitled to enjoy the benefits of this Society, if the original charter is to govern the administration of the trust, as the Circular Church of Charleston itself. 2. The next question is as to the effect of the charter of 1834. It is said that the charter of ’34 altered, nay, repealed the original charter of 1789. Indeed, such are the terms of the Act of 1834, as quoted by the Chairman; and the ques¬ tion which now arises is as to the constitutional authority of the Legislature of this State to abolish the charter of ’39, and designate a different object and purpose in the administration of the trust from what was prescribed and appointed by that charier. In the opinion of the undersigned, that Act, so far as it aimed to produce any such result, was wholly unconstitutional, null and void, and, therefore, that the rights of th e cestui que trust, under the original charter, are still unimpaired, and will be enforced by a Court of Equity. The undersigned is of opinion that the Act of 1834, so far as it contravenes the charter of 1789, is unconstitutional, for the following reasons : wherever funds are given for a specific object, and assuredly all funds given to this Society, prior to the 17lh December, 1834, must be considered as given for the objects specified in the charter of 1789 ; in all cases where funds are given for a specific object a contract is implied, by the principles both of Law and Equity, between the donor and donee, that the funds will be appropriated and expended in accordance with the pre¬ scribed objects and purposes, and in no other way. Where one accepts funds with a condition annexed, he agrees to fulfil the condition. Where one accepts 4 38 funds in trust that he will apply them to a certain object, he virtually agrees to perform the trust and apply the funds to that object, and there can be no doubt that if the funds are misapplied, or applied to a different object, it is a breach of the trust, a breach of contract between the donor and the distributee of the fund, and that any one standing in the relation of cestui que trust , under the instrument or charter creating the trust, would be entitled to file his bill in a Court of Equity to obtain indemnity for the past and security for the future. There can be no doubt, therefore, in the opinion of the undersigned, that both in Law and Equity there was a contract between this Society and the contributors to its funds prior to the charter of 1S34, that these funds should be applied to the relief of elderly and dis¬ abled ministers, and the widows and orphans of the clergy of the Independent or Congregational Church in the State of South Carolina. Now the Act of ’31 comes in and repeals the charter of ’69, annuls its provisions, abolishes the trust is created, and appoints new objects, different purposes for the application of the funds of this Society. The undersigned submits whether this be not a clear case of an Act of the Legislature, invalidating a contract, or in the language of the Constitution, “impairing the obligation” of a contract, and therefore, as being in contravention of the Constitution, null, void and of no effect. In the opinion of the undersigned, it makes not the least difference in this case, that the repeal of the original charter was upon the petition of this Corporation. This Corporation was not the only party to the contract, and occupied in relation to the fund, the position simply of a trustee—an agent or distributor of the same, according to the prescribed terms of the donation. Before the original contract could be legally rescinded, the donors who created the fund and the trust, (all of whom, it is pre¬ sumed. were, in 1S34, in their graves,) must have given their eonsent, and also, (the undersigned should suppose,) the cestui que trust who were entitled to the benefit of the original charter. It is hardly to be supposed that the party to the contract which had the least interest in its preservation or continuance, should be authorized by his own act, and it is perhaps not saying too much, by his own wrong, technically to destroy its validity. The only remaining question which the undersigned will consider, is as to the denominational status of Wappetaw Church. This Church was first incorporated on the 23d March, 1736, with the title of “The Independent Church in Christ Church Parish.” This was prior to the first charier of this Society, and the only question is, whether the Wappetaw Church could claim at that period the title of “an Inde¬ pendent or Congregational Church.” within the purview of the provisions of the charter of 17s9. The undersigned is of opinion it was properly entitled to this denomination. The terms “ Independent or Congregational,” are used in the charter as synoni- mous, and in fact in the ecclesiastical vocabulary, signifying the same thing. All independent churches are congregational, that is, the supreme authority in the government of the church is vested in the congregation, as contradistinguished from that form of church government where the supreme authority is vested in a Presbytery, Synod, General Assembly or Convention. Under the independent or congregational system, each church is a separate and sovereign community, the congregation possessing the authority of determining all questions in the last re¬ sort. Such, we think, was the Constitution of the Wappetaw Church in Christ Church Parish, and such its denominational status, and as such it had a rightful claim to the benefits of this Society. All of which is respectfully submitted. W. PERONNEAU FINLEY. m