Charge of the Court to a Jury. existing at the time the law is passed. The law of 1830 is in no respect the exercise of judicial powers; it only organizes a tribunal with the powers to entertain judicial proceedings. The act, in terms, applies to bills filed, or to be filed. Such retrospective effect is no unusual course in Jaws providing new remedies. Ibid. 816. The act of 1830 does not require that all the technical rules in the ordinary course of chancery proceedings, on a bill of review, shall be pursued in proceedings instituted under the law. Ibid. CHARGE OF THE COURT TO A JURY. 1. A court may not only present the facts proved, in their charge to the jury, but give their opinion as to those facts, for the consideration of the jury. But, as the jurors are the triers of the facts, such an expression of opinion by the court should be so guarded, as to leave the jury free in the exercise of their own judgments. They should be made distinctly to understand that the instruction was not given as a point of law, by which they were to be governed, but as a mere opinion as to the facts, and to which they should give no more weight than it was entitled The correctness of every charge must depend upon the phraseology used by the court. Tracy v. Swartwout, 10 Peters, 80. to. 2. The court are not bound to charge the jury on points of law which do not grow out of the facts proved on the trial of the cause. Clarke v. Kownslar, 10 Peters, 657. 3. It is, doubtless, within the province of a court, in the exercise of its discretion, to sum up the facts in the case to the jury, and submit them, with the inferences of law deducible therefrom, to the free judgment of the jury. But care must be taken, in all such cases, to separate the law from the facts, and to leave the latter in unequivocal terms to the jury, as their true and peculiar province. M'Lanahan v. The Universal Insurance Company, 1 Peters, 182. 4. Little stress ought to be laid upon general expressions falling from judges, in the course of trials. Where the facts are not disputed, the judge often suggests, in a strong and pointed manner, his opinion as to their materiality and importance, and his leading opinion of the conclusion to which the facts ought to conduct the jury. This ought not to be deemed an intentional withdrawal of the facts, or the inferences deducible therefrom, from the cognisance of the jury, but rather as an expression of opinion, addressed to the discretion of counsel, whether it would be worth while to proceed further in the cause. And the like expression, in summing up any cause to the jury, must be understood by them merely as a strong exposition of the facts, not designed to overrule their verdict, but to assist them in forming it. And there is the less objection to this course in the English practice; because, if the summing us has had an undue influence, the mistake is put right by a new trial, upon an application to the discretion of the whole court. This is so familiarly known, that it needs only to be stated, to be at once admitted. Ibid. 190. 5. Where the defendant had reserved a right to move the court to exclude any part of the plaintiff's evidence, which he might choose to designate as incompetent, and it did not appear from the bill of exceptions that he designated any particular piece or part of the evidence as objectionable, and moved the court to exclude the whole, or to instruct the jury that it was insufficient to prove title in the lessors of the plaintiff, this could not be done on the ground of incompetency, unless the whole was incompetent. The court is not bound to do more than respond to the motion, in the terms in which it is made. Courts of justice are not obliged to modify the propositions submitted by counsel, so as to make them fit the case. If they do not fit, that is enough to authorize their rejection. Elliott et al. v. Piersol et al., 1 Peters, 338. 6. The question before the court was, whether the charge to the jury in the circuit court contains any erroneous statement of the law. By the supreme court:-In examining the charge for the purpose of ascertaining its correctness, the whole scope and bearing of it must be taken together. It is wholly inadmissible to take up single and detached passages, and to decide upon them without attending to the context, or without incorporating such qualifications and explanations as naturally flow from the language of other parts of the charge. The whole is to be construed as it must have been understood, both by the court and the jury, at the time it was delivered. Magniac v. Thompson, 7 Peters, 348. 7. Where there is no evidence tending to prove a particular fact, the court are bound so to instruct the jury when requested; but they cannot, legally, give any instructions which will take from the jury the right of weighing what effect the evidence shall have. An instruction founded on part of the evidence is erroneous. Greenleaf v. Birth, 9 Peters, 292. 8. The circuit court was requested to say to the jury, that the facts given in evidence in the trial of the case, did not import such a lending as would support the defence of usury. By the supreme court:-The court was asked to usurp the province of the jury, and to decide on the sufficiency of the testimony, in violation of the well-established principle, that the law is referred to the court, the fact to the jury. Scott v. Lloyd, 9 Peters, 418. 9. An instruction to the jury, which would se parate the circumstances of the case from each other, and the object of which is to induce the court, after directing the jury that they ought to be considered together, to instruct them that, separately, no one in itself amounted to usury, ought not to have been given. Ibid. 10. The court ought not to instruct, and indeed cannot instruct, on the sufficiency of evidence; but no instruction to the jury should be given, except upon evidence in the case. Where there is evidence on a point, the court may be called upon to instruct the jury on the law; but it is for them to determine on the effect of evidence. Chesapeake and Ohio Canal Company v. Knapp and others, 9 Peters, 541. 11. When the court was asked to instruct the Charities, Charitable and Religious Uses. jury upon a particular point, if they believed from the evidence certain facts; and there was not the slightest evidence from which the jury had a right to believe the existence of any such facts; the court ought not to have given such instructions, since they were calculated to mislead them, and raise a mere speculative question. Chirac v. Reinecker, 2 Peters, 625. 12. It is no ground of reversal, that the court below omitted to give directions to the jury, upon any points of law which might arise in the cause, where it was not requested by either party at the trial. It is sufficient that the court has given no erroneous directions. Dialogue v. Pennock et al., 2 Peters, 16. counsel, and not warranted by the evidence in the cause; yet, if he proceeds to state the law upon such question, and states it erroneously, his opinion may be revised in the court above; and if it be such as may have had an influence on the jury, their verdict will be set aside. Etting v. Bank of the United States, 11 Wheat. 59; & Cond. Rep. 216. 19. A direction to the jury, "that the several matters so produced and proved, were sufficient to prove the issue aforesaid, on the part of the plaintiffs," was held not to be an interference by the court, with the province of the jury. Mason v. United States, 1 Gallis. C. C. R. 53. 20. So too, "that W. ought, by law, to be con13. If either party considers any point pre-sidered as the said A.'s agent, in all concerns sented by the evidence omitted in the charge respecting the said vessel and cargo;" ought to of the court, it is competent for such party to be viewed as declaring the legal operation of require an opinion from the court upon that acts, which either were not questioned, or were point. The court cannot be presumed to do left to the jury to determine. Ibid. more, in ordinary cases, than to express its opinion upon questions which the parties themselves have raised on the trial. Ibid. 14. A court cannot be required to give an instruction to the jury as to the relation, right, and credibility of the testimony adduced by the parties in a cause. Van Ness v. Pacard, 2 Peters, 149. 21. Although the omission of the court to charge the jury, on important questions of law, involved in the case, is not in itself a reason for granting a new trial; yet the court will exercise a discretion, and if they think the justice of the case will be promoted, they will grant it. Calbreath v. Gracy, 1 Wash. C. C. R. 198. 22. The court is not bound to give an opinion to the jury as to the meaning or construction of a deposition read in evidence. Marine Ins. Co. v. Young, 5 Cranch, 187; 2 Cond. Rep. 227. 15. No court is bound, at the mere instance of the party, to repeat over to the jury the same substantial proposition of law, in every variety of form, which the ingenuity of counsel may suggest. It is sufficient if it is once laid down to the jury in an intelligible and unexceptionable CHARITIES, CHARITABLE AND RELIGIOUS manner. Kelly v. Jackson et al., 6 Peters, 622. 16. The practice of bringing the whole of the charge of the court delivered to the jury in the court below for review before the supreme court, is unauthorized, and extremely inconvenient both to the inferior and the appellate court. With the charge of the circuit court to the jury upon mere matters of fact, with its commentaries upon the weight of evidence, the supreme court has nothing to do. Observations of that nature are understood to be addressed to the jury, merely for their consideration as the ultimate judges of the matters of fact; and are entitled to no more weight or importance than the jury in the exercise of their own judgment choose to give them. They neither are, nor are understood to be, binding on them, as the true and conclusive exposition of the evidence. If, in summing up the evidence to the jury, the court should misstate the law, that would justly furnish a ground for an exception. But the exception should be strictly confined to that misstatement; and by being made known at the moment, would often enable the court to correct an erroneous expression, so as to explain or qualify it in such a manner as to make it wholly unexceptionable, or perfectly distinct. Carver v. Astor, 4 Peters, 1. 17. The court, upon a jury trial, is bound to give an opinion upon any point relevant to the issue. M'Allister et al. v. Douglass et al., 3 Cranch, 298; 1 Cond. Rep. 537. 18. Although the judge in the circuit court may refuse to declare the law to the jury on a mere hypothetical question, propounded by the USES. 1. In the year 1790, S. H., a citizen of Virgi nia, made his last will, containing the following bequest: "Item, What shall remain of my mili tary certificates at the time of my decease, both principal and interest, I give and bequeath to the Baptist Association, that for ordinary meets at Philadelphia annually, which I allow to be a perpetual fund for the education of youths of the Baptist denomination, who shall appear promis ing for the ministry, always giving a preference to the descendants of my father's family." In 1792, the legislature of Virginia passed an act repealing all English statutes: in 1795 the testator died. The Baptist Association in question had existed as a regularly organized body for many years before the date of the will; and in 1797 was incorporated by the legislature of Pennsylvania, by the name of "The Trustees of the Philadelphia Association." By the supreme court:-The association not being incorporated at the decease of the testator, could not take this bequest as a society. The individuals who composed the association at the death of the testator, could not take the bequest. There were no persons to whom this legacy, were it not a charity, could be decreed; and such bequest cannot be sustained as a charity. The Trustees of the Baptist Association v. Hart's Ex'rs., 4 Wheat. 1; 4 Cond. Rep. 371. 2. If, in England, the prerogative of the king, as parens patriæ, would, independent of the statute of Elizabeth, extend to charitable bequests of Charities, Charitable and Religious Uses. this kind: Query, if the same principle governs | rest, residue, &c., of my estate should be, at all the courts of the United States? Ibid. 3. The statute of Elizabeth gives, in England, validity to some bequests, which, but for that statute, are not valid. Ibid. 4. If the attorney-general of the United States were a party in the case, the inquiry as to the operation of the principles of the statute of Elizabeth might be made; but it is not otherwise necessary. Ibid. 5. A lot of ground had, in the original plan of an addition to Georgetown, been marked "for the Lutheran church;" and by the German Lutherans of the place, had been used as a place of burial from the dedication, and they had erected a school-house on it, but no church; exercising acts of protection and ownership over it at some periods, by committees appointed by the German Lutherans, the original owner acquiescing in the same. This may be considered as a dedication of the lot to public and pious uses; and although the German Lutherans were not incorporated, nor were there any persons who as trustees could hold the property, the appropriation was also valid under the bill of rights of Maryland. The bill of rights, to this extent at least, recognises the doctrines of the statute of Elizabeth for charitable uses; under which, it is well known, that such uses would be upheld, although there was no specific grantee or trustee. This might at all times have been enforced as a charitable and pious use, through the intervention of the government, as parens patriæ, by its attorney-general or other law officer. It was originally consecrated for a religious purpose. It has become a depository of the dead; and it cannot now be resumed by the heirs of the donor. Beatty and Ritchie v. Kurtz et al., 2 Peters, 584. 6. The testator gave all the rest and residue and remainder of his estate, real and personal, comprehending a large real estate in the city of New York, to the chancellor of the state of New York, and recorder of the city of New York, &c., (naming several other persons by their official description,) to have and to hold the same unto them and their respective successors in office to the uses and trusts, subject to the conditions and appointments declared in the will; which were: out of the rents, issues, and profits thereof, to erect and build upon the land upon which he resided, which was given by the will, an asylum, or marine hospital, to be called "the Sailors' Snug Harbour," for the purpose of maintaining and supporting aged, decrepid and worn out sailors, &c. And after giving directions as to the management of the fund by his trustees, and declaring that the institution created by his will should be perpetual, and that those officers and their successors should for ever continue the governors thereof, &c., he adds, "it is my will and desire that if it cannot legally be done according to my above intention, by them, without an act of the legislature, it is my will and desire that they will, as soon as possible, apply for an act of the legislature to incorporate them for the purpose above specified; and I do further declare it to be my will and intention, that the said events, applied for the uses and purposes above set forth; and that it is my desire all courts of law and equity will so construe this my said last will as to have the said estate appropriated to the above uses, and that the same should in no case, for want of legal form or otherwise, be so construed as that my relations, or any other persons, should heir, possess, or enjoy my property, except in the manner and for the uses herein above specified." Within five years after the death of the testator, the legislature of the state of New York, on the application of the trustees, also named as executors of the will, passed a law constituting the persons holding the offices designated in the will, and their successors, a body corporate, by the name of "the Trustees of the Sailors' Snug Harbour;" and enabling them to execute the trusts declared in the will. This is a valid devise to divest the heir of his legal estate, or at all events to affect the lands in his hands with the trust declared in the will. If, after such a plain and unequivocal declaration of the testator with respect to the disposition of his property, so cautiously guarding against and providing for every supposed difficulty that might arise, any technical objection shall now be interposed to defeat his purpose, it will form an exception to what we find so universally laid down in all our books as a cardinal rule in the construction of wills, that the intention of the testator is to be sought after and carried into effect. If this intention cannot be carried into effect precisely in the mode at first contemplated by him, consistently with the rules of law, he has provided an alternative, which, with the aid of the act of the legislature, must remove every difficulty. Inglis v. The Trustees of the Sailors' Snug Harbour, 3 Peters, 113. 7. In the case of "The Baptist Association v. Hart's Executors," 4 Wheat. 27, the court considered the bequest void for uncertainty as to the devisees; and the property vested in the next of kin, or was disposed of by some other provision of the will. If the testator, in that case, had bequeathed the property to the Baptist Association, on its becoming thereafter and within a reasonable time incorporated, could there be a doubt, but that the subsequent incorporation would have conferred on the association the capacity of taking and managing the fund? Ibid. 8. A vague legacy, the object of which is indefinite, cannot be established under the equity powers of the courts of the United States, on the ground that it is for a charitable purpose. The Trustees of the Baptist Association v. Hart's Ex'rs., 1 Wheat. 1; 4 Cond. Rep. 371. 9. A corporation for religious and charitable purposes, which is endowed solely by private benefactions, is a private eleemosynary corpora tion; although it is created by a charter from the government. The Society for the Propaga tion of the Gospel in Foreign Parts v. The Town of New Haven and William Wheaton, 8 Wheat. 464; 5 Cond. Rep. 489. 10. The capacity of private individuals, as corporators, who were British subjects when the Charters. grant was made, or of corporations created by the crown of England, to take lands in the United States, under the grant of the crown of England, for charitable or religious uses, was not affected by the American revolution. Ibid. 11. The proper courts of the United States will interfere to prevent an abuse of the trusts confided to corporations created by the crown of England, holding lands in the United States, for charitable uses and will aid in enforcing the due execution of the trusts. But neither those courts, nor the local legislature of the states where the lands lie, can adjudge a forfeiture of the franchises of the foreign corporation, or of its property. Ibid. 12. The property of British corporations in the United States is protected by the sixth article of the treaty of peace of 1783, in the same manner as that of natural persons; and their title, thus protected, is confirmed by the ninth article of the treaty of 1794, so that it could not be forfeited by any intermediate legislative act, or by any other proceeding on account of alienage. Ibid. engagement from the state that another should not be erected, and no undertaking not to sanction competition, nor to make improvements that would diminish the amount of its income. Upon all these subjects the charter was silent: and nothing was said in it about a line of travel, in which they were to have exclusive privileges. No words were used, from which an intention to grant any of these rights could be inferred. By the supreme court:-If the plaintiffs are entitled to exclusive privileges, they must be implied simply from the nature of the grant, and cannot be inferred from the words by which the grant is made. Ibid. 5. Amid the multitude of cases which have occurred, and have been daily occurring for the last forty or fifty years, this is the first instance in which such an implied contract has been contended for; and the supreme court is called upon to infer it from an ordinary act of incorporation, containing nothing more than the usual stipulations and provisions to be found in every such law. The absence of any such controversy, where there must have been so many occasions 13. The act of the legislature of Vermont, of to give rise to it, proves that neither states, nor the 30th of October, 1794, granting the lands in individuals, nor corporations, ever imagined that that state, belonging to the "Society for Propa- such a contract can be implied from such chargating the Gospel in Foreign Parts," to the re-ters. It shows, that the men who voted for these spective towns in which the lands lie, is void, and it conveys no title to the lands. Ibid. See CORPORATIONS FOR CHARITABLE AND RELIGIOUS USES, Post. CHARTERS. laws never imagined that they were forming such a contract: and if it is maintained that they have made it, it must be by a legal fiction, in opposition to the truth of the fact, and the obvious intention of the party. The court cannot deal thus with the rights reserved to the states, and by legal intendments and mere technical reasoning take away from them any portion of that power over their own internal police and improvement, which is so necessary to their well-being and prosperity. Ibid. 1. In exercising the high powers conferred on the supreme court by the constitution, the court are fully sensible that it is their duty to deal with the great and extensive interests (char- 6. Let it once be understood, that such chartered property) with the utmost caution, guard-ters carry with them these implied contracts, ing, as far as they have power so to do, the rights of property, at the same time carefully abstaining from any encroachment on the rights reserved to the states. Charles River Bridge v. The Warren Bridge, 11 Peters, 420. and give this unknown and undefined property in a line of travelling, it will soon be found that the old turnpike corporations will awake from their sleep, and will call on the supreme court to put down the improvements which have taken their place. The millions of property which have been invested in rail-roads and canals upon lines of travel which had been before occupied by turnpike corporations, will be put in jeopardy. We shall be thrown back to the improvements of the last century, and obliged to stand still until the claims of the old turnpike corporations shall be satisfied, and they shall consent to per3. No good reason can be assigned for intro-mit the states to avail themselves of the lights ducing a new and adverse rule of construction in favour of corporations, while the rules of construction known to the English common law are adopted and adhered to in every other case, without exception. Ibid. 2. Public grants are to be construed strictly. In the case of the United States v. Arredondo, | 6 Peters, 736, the leading cases on this subject are collected together by the learned judge (Mr. Justice Baldwin) who delivered the opinion of the court; and the principle is recognised, that in grants by the public, nothing passes by implication. Ibid. 4. The legislature of Massachusetts incorporated a company to make a bridge over Charles river, from Charlestown to Boston, giving the company a right to take tolls for a number of years. The grant contained no exclusive privilege over the waters of the river, above or below the bridge; no right to erect another bridge, or to prevent other persons from erecting one; no of modern science, and to partake of the benefit of those improvements which are now adding to the wealth and prosperity, and the convenience and comfort of every other part of the civilized world. Ibid. 7. The object and end of all government is to promote the happiness and prosperity of the community by which it is established; and it can never be assumed that the government intended diminishing its power of accomplishing the end for which it was created; and in a country like the United States, free, active, and enterprising, continually advancing in wealth and Charters. numbers, new channels of communication are 9. It has been settled, that a contract entered daily found necessary for travel and trade, and into between a state and an individual, is as fully are essential to the comfort, convenience, and protected by the prohibitions contained in the prosperity of the people. A state ought never tenth section, first article of the constitution, as to be presumed to surrender this power, because, a contract between two individuals; and it is not like the taxing power, the whole community denied that a charter incorporating a bank is a have an interest in preserving it undiminished; contract. Ibid. and where a corporation alleges that a state has surrendered for seventy years its power of improvement and public accommodation in a great and important line of travel, along which a vast number of the community must daily pass, the community have a right to insist that its abandonment ought not to be presumed in a case in which the deliberate purpose of the state to abandon it does not appear. The continued existence of a government could be of no great value, if, by implications and presumptions, it was disarmed of the powers necessary to accomplish the ends of its creation, and the functions it was designed to perform transferred to the hands of privileged corporations. The rule of construction announced by the supreme court, in the case of The Providence Bank v. Billings and Pittman, reported in 4 Peters, 514, was not confined to the taxing power, nor was it so limited in the opinion then delivered. On the contrary, it was distinctly placed on the ground that the interests of the community were concerned in preserving undiminished the power then in question; and whenever any power of the state is said to be surrendered or diminished, whether it be the taxing power, or any other affecting the public interest, the same principle applies, and the rule of construction must be the same. No one will question that the interests of the great body of the people of the state, would, in the case of success in their claims by the Charles River Bridge Company, be affected by the surrender to them of a great line of travel, with a right to exact tolls, and exclude competition for seventy years. While the rights of private property are sacredly guarded, the court must not forget that the community have rights, and that the happiness and well-being of every citizen depends on their faithful preservation. Ibid. 10. The power of taxing moneyed corporations has been frequently exercised, and has never before, so far as is known, been resisted. Its novelty, however, furnishes no conclusive argument against it. Ibid. 11. That the taxing power is of vital importance; that it is essential to the existence of government; are truths which it cannot be necessary to reaffirm. They are acknowledged and asserted by all. It would seem that the relinquishment of such a power is never to be assumed. We will not say that a state may not relinquish it; that a consideration sufficiently valuable to induce a partial release of it may not exist; but as the whole community is interested in retaining it undiminished, that community has a right to insist that its abandonment ought not to be presumed in a case in which the deliberate purpose of the state to abandon it does not appear. Ibid. 8. In 1791, the legislature of Rhode Island granted a charter of incorporation to certain in dividuals, who had associated for the purpose of banking. They were incorporated by the name of the President, Directors and Company of the Providence Bank, with the ordinary powers of such associations. In 1822, the legislature passed an act imposing a tax on every bank in the state, except the Bank of the United States. The Providence Bank refused the payment of the tax, alleging that the act which imposed it was repugnant to the constitution of the United States, as it impaired the obligation of the contract created by the charter of incorporation. Held, by the the supreme court, that the act of the legislature of Rhode Island, imposing a tax which, under the law, was assessed on the Providence Bank, does not impair the obligation of the contract created by the charter granted to the bank. The Providence Bank v. Billings and Pitman, 4 Peters, 514. 12. The power of legislation, and consequently of taxation, operate on all the persons and property belonging to the body politic. This is an original principle, which has its foundation in society itself. It is granted by all, for the benefit of all. It resides in government as a part of itself; and need not be reserved where property of any description, or the right to use it in any manner, is granted to individuals or corporate bodies. Ibid. 13. However absolute the right of an individual may be, it is still in the nature of that right that it must bear a portion of the public burdens, and that portion must be determined by the legislature. This vital power may be abused; but the constitution of the United States was not intended to furnish the correction of every abuse of power which may be committed to the state governments. The intrinsic wisdom and justice of the representative body, and its relations with its constituents, furnish the only security, where there is no express contract, against unjust and excessive taxation, as well as against unwise legislation generally. Ibid. 14. The great object of incorporation is, to bestow the character and properties of individuality on a collected and changing body of men. Any privileges which may exempt it from the burdens common to individuals, do not flow ne cessarily from the charter, but must be expressed in it, or they do not exist. Ibid. 15. The charter granted by the British crown to the trustees of Dartmouth College, in New Hampshire, in the year 1769, is a contract within the meaning of that clause of the constitution of the United States, (art. 1, sec. 10,) which declares, that no state shall make any law impairing the obligation of contracts; and this charter was not dissolved by the revolution. Trustees of Dartmouth College v. Woodward, 4 Wheat. 518; 4 Cond. Rep. 526. |