I shall now, may it please your honors, proceed to inquire whether there
is, in the State of Pennsylvania, any settled public policy to which
this school, as planned by Mr. Girard in his will, is in opposition; for
it follows, that, if there be any settled public policy in the laws of
Pennsylvania on this subject, then any school, or scheme, or system,
which tends to subvert this public policy, cannot be entitled to the
protection of a court of equity. It will not be denied that there is a
general public policy in that, as in all States, drawn from its history
and its laws. And it will not be denied that any scheme or school of
education which directly opposes this is not to be favored by the
courts. Pennsylvania is a free and independent State. She has a popular
government, a system of trial by jury, of free suffrage, of vote by
ballot, of alienability of property. All these form part of the general
public policy of Pennsylvania. Any man who shall go into that State can
speak and write as much as he pleases against a popular form of
government, freedom of suffrage, trial by jury, and against any or all
of the institutions just named; he may decry civil liberty, and assert
the divine right of kings, and still he does nothing criminal; but if,
to give success to such efforts, special power from a court of justice
is required, it will not be granted to him. There is not one of these
features of the general public policy of Pennsylvania against which a
school might not be established and preachers and teachers employed to
teach. That might in a certain sense be considered a school of
education, but it would not be a charity. And if Mr. Girard, in his
lifetime, had founded schools and employed teachers to preach and teach
in favor of infidelity, or against popular government, free suffrage,
trial by jury, or the alienability of property, there was nothing to
stop him or prevent him from so doing. But where any one or all of these
come to be provided for a school or system as a charity, and come before
the courts for favor, then in neither one, nor all, nor any, can they be
favored, because they are opposed to the general public policy and
public law of the State.
These great principles have always been recognized; and they are no more
part and parcel of the public law of Pennsylvania than is the Christian
religion. We have in the charter of Pennsylvania, as prepared by its
great founder, William Penn,--we have in his "great law," as it was
called, the declaration, that the preservation of Christianity is one of
the great and leading ends of government. This is declared in the
charter of the State. Then the laws of Pennsylvania, the statutes
against blasphemy, the violation of the Lord's day, and others to the
same effect, proceed on this great, broad principle, that the
preservation of Christianity is one of the main ends of government. This
is the general public policy of Pennsylvania. On this head we have the
case of Updegraph v. The Commonwealth,[4] in which a decision in
accordance with this whole doctrine was given by the Supreme Court of
Pennsylvania. The solemn opinion pronounced by that tribunal begins by a
general declaration that Christianity is, and has always been, part of
the common law of Pennsylvania.
I have said, your honors, that our system of oaths in all our courts, by
which we hold liberty and property, and all our rights, is founded on or
rests on Christianity and a religious belief. In like manner the
affirmation of Quakers rests on religious scruples drawn from the same
source, the same feeling of religious responsibility.
The courts of Pennsylvania have themselves decided that a charitable
bequest, which counteracts the public policy of the State, cannot be
sustained. This was so ruled in the often cited case of the Methodist
Church v. Remington. There, the devise was to the Methodist Church
generally, extending through the States and into Canada, and the trust
was declared void on this account alone; namely, that it was
inconsistent with the public policy of the State, inconsistent with the
general spirit of the laws of Pennsylvania. But is there any comparison
to be made between that ground on which a devise to a church is declared
void, namely, as inconsistent with the public policy of the State, and
the case of a devise which undermines and opposes the whole Christian
religion, and derides all its ministers; the one tending to destroy all
religion, and the other being merely against the spirit of the
legislation and laws of the State, and the general public policy of
government, in a very subordinate matter? Can it be shown that this
devise of a piece of ground to the Methodist Church can be properly set
aside, and declared void on general grounds, and not be shown that such
a devise as that of Mr. Girard, which tends to overturn as well as
oppose the public policy and laws of Pennsylvania, can also be set
aside?
Sir, there are many other American cases which I could cite to the court
in support of this point of the case. I will now only refer to 8
Johnson, page 291.
It is the same in Pennsylvania as elsewhere, the general principles and
public policy are sometimes established by constitutional provisions,
sometimes by legislative enactments, sometimes by judicial decisions,
and sometimes by general consent. But however they may be established,
there is nothing that we look for with more certainty than this general
principle, that Christianity is part of the law of the land. This was
the case among the Puritans of New England, the Episcopalians of the
Southern States, the Pennsylvania Quakers, the Baptists, the mass of the
followers of Whitefield and Wesley, and the Presbyterians; all brought
and all adopted this great truth, and all have sustained it. And where
there is any religious sentiment amongst men at all, this sentiment
incorporates itself with the law. _Every thing declares it._ The massive
cathedral of the Catholic; the Episcopalian church, with its lofty spire
pointing heavenward; the plain temple of the Quaker; the log church of
the hardy pioneer of the wilderness; the mementos and memorials around
and about us; the consecrated graveyards, their tombstones and epitaphs,
their silent vaults, their mouldering contents; all attest it. _The dead
prove it as well as the living._ The generations that are gone before
speak to it, and pronounce it from the tomb. We feel it. All, all,
proclaim that Christianity, general, tolerant Christianity, Christianity
independent of sects and parties, that Christianity to which the sword
and the fagot are unknown, general, tolerant Christianity, is the law of
the land.
Mr. Webster, having gone over the other points in the case, which
were of a more technical character, in conclusion,
said:--#/
I now take leave of this cause. I look for no good whatever from the
establishment of this school, this college, this scheme, this experiment
of an education in "practical morality," unblessed by the influences of
religion. It sometimes happens to man to attain by accident that which
he could not achieve by long-continued exercise of industry and ability.
And it is said even of the man of genius, that by chance he will
sometimes "snatch a grace beyond the reach of art." And I believe that
men sometimes do mischief, not only beyond their intent, but beyond the
ordinary scope of their talents and ability. In my opinion, if Mr.
Girard had given years to the study of a mode by which he could dispose
of his vast fortune so that no good could arise to the general cause of
charity, no good to the general cause of learning, no good to human
society, and which should be most productive of protracted struggles,
troubles, and difficulties in the popular counsels of a great city, he
could not so effectually have attained that result as he has by this
devise now before the court. It is not the result of good fortunes, but
of bad fortunes, which have overriden and cast down whatever of good
might have been accomplished by a different disposition. I believe that
this plan, this scheme, was unblessed in all its purposes, and in all
its original plans. Unwise in all its frame and theory, while it lives
it will lead an annoyed and troubled life, and leave an unblessed memory
when it dies. If I could persuade myself that this court would come to
such a decision as, in my opinion, the public good and the law require,
and if I could believe that any humble efforts of my own had contributed
in the least to lead to such a result, I should deem it the crowning
mercy of my professional life.
[Footnote 1: Foster's Essay on the Evils of Popular Ignorance, Section
IV.]
[Footnote 2: The effect of this remark was almost electric, and some one
in the court-room broke out in applause.]
[Footnote 3: 2 Pickering, p. 433.]
[Footnote 4: 11 Sergeant & Rawle, p. 394.]