dissenting, said:
T dissent from the opinion which has just been read. To my mind the propositions it announces are no less novel than startling, ignoring, as it does, the constitutional safeguards of the property rights of the citizen, and that, too, on the ground that those whose rights are alleged to have been invaded are incompetent to act for themselves. I had supposed that, the disabled were especially entitled to the “protection of the laws.5' Put the opinion just read seems to assume that' to a-case like this the fundamental guarantees do not extend : that the beneficiaries here are the wards of the State, and that therefore their rights of property are left to the arbitrary discretion of the legislature1.
It is said, in the first place, that the bequest in question was for public purposes. But if by this it is meant to say that the ¡State in its political capacity was beneficially interested as a party under the will of ¡Samuel Jones, and could therefore sub-*74statute, in place of the testator’s directions, the will of the legislature, the proposition is unfounded. The fact that the object of the bequest was the education of a certain class, in a particular community, did not make the trust in its character any the less private. This is well-settled law, and need not be dwelt upon. A contrary principle, says Chief Justice Marshall, has never been asserted or recognized. Dartmouth College v. Woodward, 4 Wheat. 518, 687, 670. Here the estate bequeathed was the testator’s own property — not dedicated to the public, but to be secured and its income appropriated in the manner and for the purposes directed by the will. The bequest was therefore plainly within the protection of the law securing the rights of private property, and the act in question, impairing the rights of the parties, as plainly unconstitutional and void.
In England and in this country the right to private property has always been regarded as a sacred right, “ not introduced,” as was said in an early ease, “as the result of princes’ edicts, concessions, and charters; but it was the old fundamental law, springing from the original frame and constitution of the realm.” Nightingale v. Bridges, 1 Shower’s Reports, 138. Its protection is guaranteed by Magna Charta, and in some form or other by the constitutions of the various States and of the United ¡States. “It may be received,” says Chancellor Kent, “ as a proposition universally understood and acknowledged throughout this country that no person shall be taken or imprisoned, or dis-seized of his freehold or estate, or exiled or condemned, or deprived of life, liberty, or property, unless by the law of the land or the judgment of 1ns peers.” 1 Kent’s Com. part iv, nmrg. p. 13. “By the law of the land,” said Mr. Webster in the Dartmouth College case, whose definition is often quoted, “is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. Everything *75which may pass under the form of án.enactment is not therefore to be considered the law of the land.”
The constitution provides that the legislature shall confer on the courts the power to direct the sale of estates of infants and other persons under legal disabilities, hut shall not by special legislation grant relief in such eases or in any other case of which the courts or other tribunals may have jurisdiction. Article Y, section 20. The same provision is contained in the constitution of 1851, article IY, section 35. But subject to this restriction, the legislature may by special enactment adopt measures for the management and control of the estates of persons not sui juris, iu cases where judicial inquiry is not essential, and the interests of such persons require it. Cooley’s Constitutional Limitations (fourth edition), marg. page 97; Potter’s Dwarris on Stats. 488. This is done in the exercise of a tutorial power, as parens patrke or universal trustee, which under our system of government devolves upon the legislature. Gallego's ex’ors v. The Attorney-General, 3 Leigh, 450-482; Savings Bank v. The United States, 19 Wall. 227-239. But the power is to be exercised for the benefit of the eestais que trust, and never to the prejudice of their substantial rights. And this is abundantly shown by the authorities relied on by the appellants themselves.
Thus, in the leading case of Rice v. Parkman, 16 Mass. 326, decided in 1820, a private act of the legislature of Massachusetts, authorizing a guardian to sell the real estate of his wards, and directing the proceeds to be put at interest, on good security, was held to be valid, on the ground that the power exercised was not judicial in its character, and rested in the legislature “as the general guardian and protector of.those who are. incompetent to act for themselves.” But while this is so, “ no one imagines,” said Chief Justice Parker, in delivering the opinion, “that under its general authority the legislature could deprive, a citizen of his estate, or impair any valuable contract in which he might, be interested.” To the same effect *76is Cochran v. Van Surlay, 20 Wend. 365, in which case a similar act of the legislature of New York was sustained by the court for the correction of errors. The act was held to be clearly within the powers of the legislature, as parens patriot, to prescribe such rules-and regulations as it may deem proper for the superintendence, disposition, and management of the property and effects of infants, lunatics, and other persons who are in-capabl e of managing their own' affairs. ‘ ‘ But eren that power,” said the Chancellor, speaking for the court, “cannot constitutionally be so far extended as to transfer the beneficial use of the property to another person, except in those cases where, it can be legally presumed the owner of the property would himself have given the use of his property to the other, if he had been in a situation to act for himself.” So, upon the same principles, in Stanley v. Colt, 5 Wall. 119, an act of the legislature of Connecticut was sustained by the supreme court of the. United States, which authorized a sale of certain real estate which had been devised for charitable purposes. But the legislature was careful to provide that the proceeds should be invested in interest-bearing bonds, to be secured by mortgage on real estate of double the value of the sum invested; and that the interest should be applied for the same purposes and in the same manner as the income of the real estate was by the will directed to be appropriated. The same doctrine has been held in numerous cases. Sohier v. The Mass. General Hospital, 3 Cush. 483; Blayye v. Miles, 1 Story, 426; Bamhough v. Bamhough, 11 S. & R. 191; Davison v. Johonnot, 7 Met. 388; Doe v. Douglass, 8 Blackf. 10; Leggett v. Hunter, 19 N. Y. 445;. Norris v. Clymer, 2 Barr 277.
In Wilkinson v. Leland, 2 Pet. 627, also relied on by counsel for appellants, an act of the legislature of Rhode Island, confirming a sale of real estate by a foreign executrix for the payment of debts of the testator, was held to be valid, the same not being a judicial act in its character, but the exercise of legislation. But in delivering the opinion of the court Mr. *77.Justice Story took occasion to use this emphatic language: “ The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred. At least, no court of justice in this country would be warranted in assuming that the power to violate and disregard them — a power so repugnant to the common principles of justice and civil liberty — lurked under any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people. The people ought not to be presumed to part with rights so vital to their security and well-being without very strong and direct expressions of sueli -an intention.” And in Calder v. Bull, 3 Dall. 386, Mr. Justice Chase said: “I cannot subscribe to the omnipotence of a State legislature, or that it is absolute and without control, although its authority should not be expressly restrained by the constitution or fundamental law of the State. * * * There are certain vital principles in our free republican governments which will determine and overrule an apparent and flagrant abuse of legislative power; as to take away that security for personal liberty or private property for the protection whereof the government was established.”
Applying these principles, it is plain, I think, that the debt in question lias not been discharged. The record shows that, by the contract of the parties, it was payable in gold or its equivalent, and as directed by the will was amply secured by a mortgage on real estate. Upon the application to the legislature, not of the ccsfuls <juc trust, or any one representing them, but of the debtors themselves, and without any reason save the convenience of the latter, leave was granted them to discharge the debt to the Second Auditor, as a substituted trustee or agent, by a payment in Confederate currency, worth at the time, perhaps, not more than one-fifteenth of its face value. And the money, when received, to he invested, not necessarily in real estate or other safe securities, but at such time and in such manner as the substituted trustee might see fit. In point of *78fact, lie did not invest it all, and the fund was lost by the result of the war. If this did not impair the substantial rights of the parties, it is impossible to conceive how rights can be impaired. What difference, then, does it make that, by the contract of the parties, the obligors had the privilege to pay the debt when the act was passed ? The contract, as I have said, was to pay, not in a depreciated currency, but in lawful money of the United States, a]id nothing else. And what difference does it make that, when the act was passed, the county of Prince William was in the occupancy of the Federal troops ? If such was in fact the case, it only showed that the fund, if collected, could not then be used for the purposes designed by the testator, and that its collection, therefore, could in no wise promote the interest of the restáis que trust.
But there is an additional consideration, which seems to me conclusive of the case, and that is that the act in question is in contravention of the constitution of the United States, which inhibits the States from passing any law impairing the obligation of contracts, or making anything but gold or silver coin a legal tender in payment of debts. Article I, section 30. The act, it is true, does not expressly authorize a payment in Confederate currency, but such undoubtedly was the intention of the legislature, inasmuch as no other currency was in circulation within the Confederate lines. If the intention were otherwise, then the payment, which was made in that currency, was not pursuant to the act, and the debt has not been discharged. Such was the view taken by this court of an act, passed during the war, authorizing payment to a branch bank, if within the Confederate lines, of antecedently contracted debts due the mother bank within the Federal lines. Bank af the Old Dominion v. Mr Veigh, 20 Gratt. 457. Under that act certain notes due the mother bank, which had been executed before the passage of the act, were paid in Confederate currency at a branch bank within the Confederate lines. In a suit on the notes by the bank, after the war, the defendant in his defence relied on *79the act. Tlie circuit court sustained the defence, but the judgment was reversed. Judge Christian, in delivering the opinion, said: “It is difficult to conceive how any law could be framed which more plainly and palpably violates that provision of the constitution of the United States which declares that no State shall pass any law impairing the obligation of a contract. * * * It is true the act does not, in terms, authorize payment in Confederate money; but it is notorious, and is part of the current public history of the times, that the only currency of the country, within the lines of the Confederate armies, was Confederate treasury notes, and it is equally a part of the current public history that such currency was greatly depreciated at that time. * * * The act either authorized the payment in Confederate currency, or it authorized the .payment in legal currency. If the authority was to pay in legal currency, then the defendant in error [the debtor] has not complied with the requirements of the act; and if the act (as construed by the court- below) authorized the payment of the debt in Confederate currency, which was contracted to be paid in gold or its equivalent, then it is clearly unconstitutional and void, because it is an attempt to make a worthless currency a legal tender. In either or any view of the ease the debt has not been discharged, but is still due and unpaid.” It is difficult to see how any language could be more appropriate than this to the case in hand.
It is insisted, however, that the fund became subject to the absolute control of the Legislature because the bequest, which was originally void for uncertainty, acquired vitality only by the action of that body. But this position is unsupported by principle or authority. The answer is that the legislature having seen lit to interpose and give effect to the charity, without reservation, the parties in interest thereby acquired vested rights which could not he impaired by subsequent legislation.. A similar argument, in respect to a legislative grant, was unsuccessfully urged in Terretf v. Taylor, 9 Oraneli, 43, in response *80to which the court said: “Wo have no knowledge of any authority or principle which could support the doctrine that a legislative grant is revocable in its nature, and held only durante bene plácito. Such a doctrine * * * is utterly inconsistent with a great and fundamental principle of a republican government — the right of the citizens to the free enjoyment of their property legally acquired.” See also Fletcher v. Peck, 6 Crunch, 87-133; Dartmouth College v. Woodward, 4 Wheat. 518; Regents of the Unversity v. Williams, 9 G. & J. 365; Cooley’s Const. Lim. (fourth edition), 274, and cases cited.
A case in point is Broun v. Hummel, 6 Penn. St. 86. There certain estate was devised to establish a charity for the education of poor and orphan children. The will appointed trustees, and contained instructions for the perpetuation of the trustees and the general management of the trust. It also directed that an orphan house should be erected, and that no part of the estate devised should be sold or severed from the orphan house. After the testator’s death, by an act of the legislature, the trustees were incorporated. And afterwards an act was passed providing for the appointment of trustees under the will in a manner different from that directed by the will, and authorizing a sale óf a portion of the real estate. This act was assailed as an unwarranted interference with the rights of -the parties, and it was unanimously held by the supreme court of Pennsylvania to be unconstitutional and void. The court said: “ That the grant of a corporation for charitable purposes is a private grant, and in law considered and protected as a contract, is so fully established by authority as to require only a glance at the subject.” And it further said: “But, in addition to excluding the old trustees and the principal from their stations, the act in question, on its face, alters the testator’s will. Where this power was or is derived we are at a loss to perceive. If .the legislature, by ex -parte enactment, can alter the 'will of a private individual, whose will shall escape? On whose will shall the hand of legislative innovation next be laid? What *81private charity will next be disturbed and invaded? If' the legislature can alter one man’s will, by license of the constitution, they can alter the will of every man.”
These remarks are no less applicable to the present case. By the will of Samuel Jones, the fund was directed to be put at interest, and secured on real estate. By the act of 1868 no such direction was given, although authority was given to collect the fund. In consequence of that act the fund was lost,' and the loss is now held to fall on the innocent and no less-deserving beneficiaries. I do not so read the constitution. I concur with the circuit court, that the act is unconstitutional, null and void.
It seems to be supposed, however, that the loss sustained has been more than counterbalanced by: the benefits derived from the subsequent establishment of the free-school system in the county of Prince "William. This may be true, and the argument would be entitled to weight if it were at all germane. • But the doctrine of set-off has no application to a case like this.
I will only add that, in my opinion, the remaining objections to the validity of the act are not well founded. It must be held, I think, that the county of Prince William, during the entire period of the war, was subject to the jurisdiction of the State government established in this city. And there is nothing in the act, either in its object or by reason of the character of that government, to exclude it from the operation of the rule laid down by the supreme court of the United States in Keith v. Clark, 97 U. S. 454, and other eases there cited.
I think the decree should be affirmed.
Hinton, J., concurred with Lewis, P.Decree reversed.