The seven judges all took their seats at eleven o'clock, and the
court was opened.
Mr. Binney observed to the court, that he had omitted to notice, in
his argument, that, in regard to the statutes of Uniformity and
Toleration in England, whilst the Jewish Talmuds for the
propagation of Judaism alone were not sustained by those statutes,
yet the Jewish Talmuds for the maintenance of the poor were
sustained thereby. And the decisions show that, where a gift had
for its object the maintenance and education of poor Jewish
children, the statutes sustained the devise. In proof of this he
quoted 1 Ambler, by Blunt, p. 228, case of De Costa, &c. Also, the
case of Jacobs v. Gomperte, in the notes. Also, in the notes, 2
Swanston, p. 487, same case of De Costa, &c. Also, 7 Vesey, p. 423,
case of Mo Catto v. Lucardo. Also, Sheppard, p. 107, and Boyle, p.
43.
Another case was that of a bequest given to an object abroad, and
in the decision the Master of the Rolls considered that religious
instruction was not a necessary part of education. See, also, the
case of The Attorney-General v. The Dean and Canons of Christ
Church, Jacobs, p. 485.
Mr. Binney then quoted from Noah Webster the definition of the word
"tenets," to show that Mr. Webster did not give the right
definition when he said that "tenets" meant "religion."
Mr. Webster then rose and
said:--#/
The arguments of my learned friend, may it please your honors, in
relation to the Jewish laws as tolerated by the statutes, go to maintain
my very proposition; that is, that no school for the instruction of
youth in any system which is in any way derogatory to the Christian
religion, or for the teaching of doctrines that are in any way contrary
to the Christian religion, is, or ever was, regarded as a charity by the
courts. It is true that the statutes of Toleration regarded a devise for
the maintenance of poor Jewish children, to give them food and raiment
and lodging, as a charity. But a devise for the teaching of the Jewish
religion to poor children, that should come into the Court of Chancery,
would not be regarded as a charity, or entitled to any peculiar
privileges from the court.
When I stated to your honors, in the course of my argument on Saturday,
that all denominations of Christians had some mode or provision for the
appointment of teachers of Christianity amongst them, I meant to have
said something about the Quakers. Although we know that the teachers
among them come into their office in a somewhat peculiar manner, yet
there are preachers and teachers of Christianity provided in that
peculiar body, notwithstanding its objection to the mode of appointing
teachers and preachers by other Christian sects. The place or character
of a Quaker preacher is an office and appointment as well known as that
of a preacher among any other denomination of Christians.
I have heretofore argued to show that the Christian religion, its
general principles, must ever be regarded among us as the foundation of
civil society; and I have thus far confined my remarks to the tendency
and effect of the scheme of Mr. Girard (if carried out) upon the
Christian religion. But I will go farther, and say that this school,
this scheme or system, in its tendencies and effects, is opposed to all
religions, of every kind. I will not now enter into a controversy with
my learned friend about the word "tenets," whether it signify opinions
or dogmas, or whatever you please. Religious tenets, I take it, and I
suppose it will be generally conceded, mean religious opinions; and if a
youth has arrived at the age of eighteen, and has no religious tenets,
it is very plain that he has no religion. I do not care whether you call
them dogmas, tenets, or opinions. If the youth does not entertain
dogmas, tenets, or opinions, or opinions, tenets, or dogmas, on
religious subjects, then he has no religion at all. And this strikes at
a broader principle than when you merely look at this school in its
effect upon Christianity alone. We will suppose the case of a youth of
eighteen, who has just left this school, and has gone through an
education of philosophical morality, precisely in accordance with the
views and expressed wishes of the donor. He comes then into the world to
choose his religious tenets. The very next day, perhaps, after leaving
school, he comes into a court of law to give testimony as a witness.
Sir, I protest that by such a system he would be disfranchised. He is
asked, "What is your religion?" His reply is, "O, I have not yet chosen
any; I am going to look round, and see which suits me best." He is
asked, "Are you a Christian?" He replies, "That involves religious
tenets, and as yet I have not been allowed to entertain any." Again, "Do
you believe in a future state of rewards and punishments?" And he
answers, "That involves sectarian controversies, which have carefully
been kept from me." "Do you believe in the existence of a God?" He
answers, that there are clashing doctrines involved in these things,
which he has been taught to have nothing to do with; that the belief in
the existence of a God, being one of the first questions in religion, he
is shortly about to think of that proposition. Why, Sir, it is vain to
talk about the destructive tendency of such a system; to argue upon it
is to insult the understanding of every man; _it is mere, sheer, low,
ribald, vulgar deism and infidelity_![2] It opposes all that is in
heaven, and all on earth that is worth being on earth. It destroys the
connecting link between the creature and the Creator; it opposes that
great system of universal benevolence and goodness that binds man to his
Maker. _No religion till he is eighteen!_ What would be the condition of
all our families, of all our children, if religious fathers and
religious mothers were to teach their sons and daughters no religious
tenets till they were eighteen? What would become of their morals, their
character, their purity of heart and life, their hope for time and
eternity? What would become of all those thousand ties of sweetness,
benevolence, love, and Christian feeling, that now render our young men
and young maidens like comely plants growing up by a streamlet's
side,--the graces and the grace of opening manhood, of blossoming
womanhood? What would become of all that now renders the social circle
lovely and beloved? What would become of society itself? How could it
exist? And is that to be considered a charity which strikes at the root
of all this; which subverts all the excellence and the charms of social
life; which tends to destroy the very foundation and frame-work of
society, both in its practices and in its opinions; which subverts the
whole decency, the whole morality, as well as the whole Christianity
and government, of society? No, Sir! no, Sir!
And here let me turn to the consideration of the question, What is an
oath? I do not mean in the variety of definitions that may be given to
it as it existed and was practised in the time of the Romans, but an
oath as it exists at present in our courts of law; as it is founded on a
degree of consciousness that there is a Power above us that will reward
our virtues and punish our vices. We all know that the doctrine of the
English law is, that in the case of every person who enters court as a
witness, be he Christian or Hindoo, there must be a firm conviction on
his mind that falsehood or perjury will be punished, either in this
world or the next, or he cannot be admitted as a witness. If he has not
this belief, he is disfranchised. In proof of this, I refer your honors
to the great case of Ormichund against Barker, in Lord Chief Justice
Willes's report. There this doctrine is clearly laid down. But in no
case is a man allowed to be a witness that has no belief in future
rewards and punishments for virtues or vices, nor ought he to be. We
hold life, liberty, and property in this country upon a system of oaths;
oaths founded on a religious belief of some sort. And that system which
would strike away the great substratum, destroy the safe possession of
life, liberty, and property, destroy all the institutions of civil
society, cannot and will not be considered as entitled to the protection
of a court of equity. It has been said, on the other side, that there
was no teaching _against_ religion or Christianity in this system. I
deny it. The whole testament is one bold proclamation against
Christianity and religion of every creed. The children are to be brought
up in the principles declared in that testament. They are to learn to be
suspicious of Christianity and religion; to keep clear of it, that their
youthful heart may not become susceptible of the influences of
Christianity or religion in the slightest degree. They are to be told
and taught that religion is not a matter for the heart or conscience,
but for the decision of the cool judgment of mature years; that at that
period when the whole Christian world deem it most desirable to instil
the chastening influences of Christianity into the tender and
comparatively pure mind and heart of the child, ere the cares and
corruptions of the world have reached and seared it,--at that period the
child in this college is to be carefully excluded therefrom, and to be
told that its influence is pernicious and dangerous in the extreme. Why,
the whole system is a constant preaching against Christianity and
against religion, and I insist that there is no charity, and can be no
charity, in that system of instruction from which Christianity is
excluded. I perfectly agree with what my learned friend says in regard
to the monasteries of the Old World, as seats of learning to which we
are all indebted at the present day. Much of our learning, almost all of
our early histories, and a vast amount of literary treasure, were
preserved therein and emanated therefrom. But we all know, that although
these were emphatically receptacles for literature of the highest order,
yet they were always connected with Christianity, and were always
regarded and conducted as religious establishments.
Going back as far as the statutes of Henry the Fourth, as early as
1402,[3] in the act respecting charities, we find that one hundred years
before the Reformation, in Catholic times, in the establishment of every
charitable institution, there was to be proper provision for religious
instruction. Again, after the time of the Reformation, when those
monastic institutions were abolished, in the 1st Edw. VI. ch. 14, we
find certain _chantries_ abolished, and their funds appropriated to the
instruction of youth in the grammar schools founded in that reign, which
Lord Eldon says extended all over the kingdom. In all these we find
provision for religious instruction, the dispensation of the same being
by a teacher or preacher. In 2 Swanston, p. 529, the case of the Bedford
Charity, Lord Eldon gives a long opinion, in the course of which he
says, that in these schools care is taken to educate youth in the
Christian religion, and in all of them the New Testament is taught, both
in Latin and Greek. Here, then, we find that the great and leading
provision, both before and after the Reformation, was to connect the
knowledge of Christianity with human letters. And it will be always
found that a school for instruction of youth, to possess the privileges
of a charity, must be provided with religious instruction.
For the decision, that the essentials of Christianity are part of the
common law of the land, I refer your honors to 1 Vernon, p. 293, where
Lord Hale, who cannot be suspected of any bigotry on this subject, says,
that to decry religion, and call it a cheat, tends to destroy all
religion; and he also declares Christianity to be part of the common law
of the land. Mr. N. Dane, in his Abridgment, ch. 219, recognizes the
same principle. In 2 Strange, p. 834, case of The King v. Wilson, the
judges would not suffer it to be debated that writing against religion
generally is an offence at common law. They laid stress upon the word
"generally," because there might arise differences of opinion between
religious writers on points of doctrine, and so forth. So in Taylor's
case, 3 Merivale, p. 405, by the High Court of Chancery, these doctrines
were recognized and maintained. The same doctrine is laid down in 2
Burn's Ecclesiastical Law, p. 95, Evans v. The Chamberlain of London;
and in 2 Russell, p. 501, The Attorney-General v. The Earl of Mansfield.
There is a case of recent date, which, if the English law is to prevail,
would seem conclusive as to the character of this devise. It is the case
of The Attorney-General v. Cullum, 1 Younge and Collyer's Reports, p.
411. The case was heard and decided in 1842, by Sir Knight Bruce,
Vice-Chancellor. The reporter's abstract, or summary, of the decision is
this: "COURTS OF EQUITY, IN THIS COUNTRY, WILL NOT SANCTION ANY SYSTEM
OF EDUCATION IN WHICH RELIGION IS NOT INCLUDED."
The charity in question in that case was established in the reign of
Edward the Fourth, for the benefit of the community and poor inhabitants
of the town of Bury St. Edmunds. The objects of the charity were
various: for relief of prisoners, educating and instructing poor people,
for food and raiment for the aged and impotent, and others of the same
kind. There were uses, also, now deemed superstitious, such as praying
for the souls of the dead. In this, and in other respects, the charity
required revision, to suit it to the habits and requirements of modern
times; and a scheme was accordingly set forth for such revision by the
master, under the direction of the court. By this scheme there were to
be schools, and these schools were to be closed on Sundays, although the
Scriptures were to be read daily on other days. This was objected to,
and it was insisted, on the other hand, that the masters and mistresses
of the schools should be members of the Church of England; that they
should, on every Lord's day, give instruction in the doctrines of the
Church to those children whose parents might so desire; but that all the
scholars should be required to attend public worship every Lord's day in
the parish church, _or other place of worship, according to their
respective creeds_.
The Vice-Chancellor said, that the term "education" was properly
understood, by all the parties, to comprehend religious instruction;
that the objection to the scheme proposed by the master was not that it
did not provide for religious instruction according to the doctrines of
the Church of England, but that it did not provide for religious
instruction at all. In the course of the hearing, the Vice-Chancellor
said, that any scheme of education, without religion, would be worse
than a mockery. The parties afterwards agreed, that the masters and
mistresses should be members of the Church of England; that every school
day the master should give religious instruction, during one hour, to
all the scholars, _such religious instruction to be confined to the
reading and explanation of the Scriptures_; that on every Lord's day he
should give instruction in the liturgy, catechism, and articles of the
Church of England, and that the scholars should attend church every
Lord's day, _unless they were children of persons not in communion with
the Church of England_. In giving the sanction of the court to this
arrangement, the Vice-Chancellor said, that he wished to have it
distinctly understood that the ground on which he had proceeded was not
a preference of one form of religion to another, but the necessity, if
the matter was left to him judicially, to adopt the course of requiring
the teachers to be members of the Church of England.
This case clearly shows, that, at the present day, a school, founded by
a charity, for the instruction of children, cannot be sanctioned by the
courts as a charity, unless the scheme of education includes religious
instruction. It shows, too, that this general requisition of the law is
independent of a church establishment, and that it is not religion in
any particular form, but religion, religious and Christian instruction
in some form, which is held to be indispensable. It cannot be doubted
how a charity for the instruction of children would fare in an English
court, the scheme of which should carefully and sedulously exclude all
religious or Christian instruction, and profess to establish morals on
principles no higher than those of enlightened Paganism.
Enough, then, your honors, has been said on this point; and I am willing
that inquiry should be prosecuted to any extent of research to
controvert this position, that a school of education for the young,
which rejects the Christian religion, cannot be sustained as a charity,
so as to entitle it to come before the courts of equity for the
privileges which they have power to confer on charitable bequests.
Mr. Webster then replied to the remarks of Mr. Binney, in relation
to the Liverpool Blue Coat School, and read from the report of Mr.
Bache on education in Europe, Mr. Bache having been sent abroad by
the city of Philadelphia to investigate this whole matter of
education.
If Mr. Girard had established such a school as that, it would have been
free from all those objections that have been raised against it. This
Liverpool Blue Coat School, though too much of a religious party
character, is strictly a church establishment. It is a school
established on a peculiar foundation, that of the Madras system of Dr.
Bell. It is a monitorial school; those who are advanced in learning are
to teach the others in religion, as well as secular knowledge. It is
strictly a religious school, and the only objection is, that in its
instruction it is too much confined to a particular sect.
Mr. Binney observed that there was no provision made for clergymen.
That is true, because the scheme of the school is monitorial, in which
the more advanced scholars instruct the others. But religious
instruction is amply and particularly provided for.
Mr. Webster then referred to Shelford, p. 105, and onward, under
the head "Jews," in the fourth paragraph, where, he stated, the
whole matter, and all the cases, as regarded the condition and
position of the Jews respecting various charities, were given in
full.
He then referred to the Smithsonian legacy, which had been
mentioned, and which he said was no charity at all, nor any thing
like a charity. It was a gift to Congress, to be disposed of as
Congress saw fit, for scientific purposes.
He then replied, in a few words, to the arguments of Mr. Binney in
relation to the University of Virginia; and said that, although
there was no provision for religious instruction in that
University, yet he supposed it would not be contended for a moment
that the University of Virginia was a charity, or that it came
before the courts claiming of the law of that State protection as
such. It stood on its charter.
I repeat again, before closing this part of my argument, the
proposition, important as I believe it to be, for your honors'
consideration, that the proposed school, in its true character, objects,
and tendencies, is derogatory to Christianity and religion. If it be so,
then I maintain that it cannot be considered a charity, and as such
entitled to the just protection and support of a court of equity. I
consider this the great question for the consideration of this court. I
may be excused for pressing it on the attention of your honors. It is
one which, in its decision, is to influence the happiness, the temporal
and the eternal welfare, of one hundred millions of human beings, alive
and to be born, in this land. Its decision will give a hue to the
apparent character of our institutions; it will be a comment on their
spirit to the whole Christian world. I again press the question to your
honors: _Is a clear, plain, positive system for the instruction of
children, founded on clear and plain objects of infidelity, a charity in
the eye of the law, and as such entitled to the privileges awarded to
charities in a court of equity?_ And with this, I leave this part of the
case.