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 ent.i.tle 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 ent.i.tled 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 inst.i.tutions; 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 ent.i.tled to the privileges awarded to charities in a court of equity?_ And with this, I leave this part of the case.

THIRD DAY.

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 ent.i.tled 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 inst.i.tutions just named; he may decry civil liberty, and a.s.sert 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 p.r.o.nounced 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 const.i.tutional 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 ma.s.s 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 ma.s.sive 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 p.r.o.nounce 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 f.a.got 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 "s.n.a.t.c.h 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.]

MR. JUSTICE STORY.[1]

[At a meeting of the Suffolk Bar, held in the Circuit Court Room, Boston, on the morning of the 12th of September, the day of the funeral of Mr. Justice Story, Chief Justice Shaw having taken the chair and announced the object of the meeting, Mr. Webster rose and spoke substantially as follows.]

Your solemn announcement, Mr. Chief Justice, has confirmed the sad intelligence which had already reached us, through the public channels of information, and deeply afflicted us all.

JOSEPH STORY, one of the a.s.sociate Justices of the Supreme Court of the United States, and for many years the presiding judge of this Circuit, died on Wednesday evening last, at his house in Cambridge, wanting only a few days for the completion of the sixty-sixth year of his age.

This most mournful and lamentable event has called together the whole Bar of Suffolk, and all connected with the courts of law or the profession. It has brought you, Mr. Chief Justice, and your a.s.sociates of the Bench of the Supreme Court of Ma.s.sachusetts, into the midst of us; and you have done us the honor, out of respect to the occasion, to consent to preside over us, while we deliberate on what is due, as well to our own afflicted and smitten feelings, as to the exalted character and eminent distinction of the deceased judge. The occasion has drawn from his retirement, also, that venerable man, whom we all so much respect and honor, (Judge Davis,) who was, for thirty years, the a.s.sociate of the deceased upon the same Bench. It has called hither another judicial personage, now in retirement, (Judge Putnam,) but long an ornament of that Bench of which you are now the head, and whose marked good fortune it is to have been the professional teacher of Mr.

Justice Story, and the director of his early studies. He also is present to whom this blow comes near; I mean, the learned judge (Judge Sprague) from whose side it has struck away a friend and a highly venerated official a.s.sociate. The members of the Law School at Cambridge, to which the deceased was so much attached, and who returned that attachment with all the ingenuousness and enthusiasm of educated and ardent youthful minds, are here also, to manifest their sense of their own severe deprivation, as well as their admiration of the bright and shining professional example which they have so loved to contemplate,--an example, let me say to them, and let me say to all, as a solace in the midst of their sorrows, which death hath not touched and which time cannot obscure.

Mr. Chief Justice, one sentiment pervades us all. It is that of the most profound and penetrating grief, mixed, nevertheless, with an a.s.sured conviction, that the great man whom we deplore is yet with us and in the midst of us. He hath not wholly died. He lives in the affections of friends and kindred, and in the high regard of the community. He lives in our remembrance of his social virtues, his warm and steady friendships, and the vivacity and richness of his conversation. He lives, and will live still more permanently, by his words of written wisdom, by the results of his vast researches and attainments, by his imperishable legal judgments, and by those juridical disquisitions which have stamped his name, all over the civilized world, with the character of a commanding authority. "Vivit, enim, vivetque semper; atque etiam latius in memoria hominum et sermone versabitur, postquam ab oculis recessit."

Mr. Chief Justice, there are consolations which arise to mitigate our loss, and shed the influence of resignation over unfeigned and heart-felt sorrow. We are all penetrated with grat.i.tude to G.o.d that the deceased lived so long; that he did so much for himself, his friends, the country, and the world; that his lamp went out, at last, without unsteadiness or flickering. He continued to exercise every power of his mind without dimness or obscuration, and every affection of his heart with no abatement of energy or warmth, till death drew an impenetrable veil between us and him. Indeed, he seems to us now, as in truth he is, not extinguished or ceasing to be, but only withdrawn; as the clear sun goes down at its setting, not darkened, but only no longer seen.

This calamity, Mr. Chief Justice, is not confined to the bar or the courts of this Commonwealth. It will be felt by every bar throughout the land, by every court, and indeed by every intelligent and well-informed man in or out of the profession. It will be felt still more widely, for his reputation had a still wider range. In the High Court of Parliament, in every tribunal in Westminster Hall, in the judicatories of Paris and Berlin, of Stockholm and St. Petersburg, in the learned universities of Germany, Italy, and Spain, by every eminent jurist in the civilized world, it will be acknowledged that a great luminary has fallen from the firmament of public jurisprudence.

Sir, there is no purer pride of country than that in which we may indulge when we see America paying back the great debt of civilization, learning, and science to Europe. In this high return of light for light and mind for mind, in this august reckoning and accounting between the intellects of nations, Joseph Story was destined by Providence to act, and did act, an important part. Acknowledging, as we all acknowledge, our obligations to the original sources of English law, as well as of civil liberty, we have seen in our generation copious and salutary streams turning and running backward, replenishing their original fountains, and giving a fresher and a brighter green to the fields of English jurisprudence. By a sort of reversed hereditary transmission, the mother, without envy or humiliation, acknowledges that she has received a valuable and cherished inheritance from the daughter. The profession in England admits with frankness and candor, and with no feeling but that of respect and admiration, that he whose voice we have so recently heard within these walls, but shall now hear no more, was, of all men who have yet appeared, most fitted by the comprehensiveness of his mind, and the vast extent and accuracy of his attainments, to compare the codes of nations, to trace their differences to difference of origin, climate, or religious or political inst.i.tutions, and to exhibit, nevertheless, their concurrence in those great principles upon which the system of human civilization rests.

Justice, Sir, is the great interest of man on earth. It is the ligament which holds civilized beings and civilized nations together. Wherever her temple stands, and so long as it is duly honored, there is a foundation for social security, general happiness, and the improvement and progress of our race. And whoever labors on this edifice with usefulness and distinction, whoever clears its foundations, strengthens its pillars, adorns its entablatures, or contributes to raise its august dome still higher in the skies, connects himself, in name, and fame, and character, with that which is and must be as durable as the frame of human society.

All know, Mr. Chief Justice, the pure love of country which animated the deceased, and the zeal, as well as the talent, with which he explained and defended her inst.i.tutions. His work on the Const.i.tution of the United States is one of his most eminently successful labors. But all his writings, and all his judgments, all his opinions, and the whole influence of his character, public and private, leaned strongly and always to the support of sound principles, to the restraint of illegal power, and to the discouragement and rebuke of licentious and disorganizing sentiments. "Ad rempublicam firmandam, et ad stabiliendas vires, et sanandum populum, omnis ejus pergebat inst.i.tutio."

But this is not the occasion, Sir, nor is it for me to consider and discuss at length the character and merits of Mr. Justice Story, as a writer or a judge. The performance of that duty, with which this Bar will no doubt charge itself, must be deferred to another opportunity, and will be committed to abler hands. But in the homage paid to his memory, one part may come with peculiar propriety and emphasis from ourselves. We have known him in private life. We have seen him descend from the bench, and mingle in our friendly circles. We have known his manner of life, from his youth up. We can bear witness to the strict uprightness and purity of his character, his simplicity and unostentatious habits, the ease and affability of his intercourse, his remarkable vivacity amidst severe labors, the cheerful and animating tones of his conversation, and his fast fidelity to friends. Some of us, also, can testify to his large and liberal charities, not ostentatious or casual, but systematic and silent,--dispensed almost without showing the hand, and falling and distilling comfort and happiness, like the dews of heaven. But we can testify, also, that in all his pursuits and employments, in all his recreations, in all his commerce with the world, and in his intercourse with the circle of his friends, the predominance of his judicial character was manifest. He never forgot the ermine which he wore. The judge, the judge, the useful and distinguished judge, was the great picture which he kept constantly before his eyes, and to a resemblance of which all his efforts, all his thoughts, all his life, were devoted. We may go the world over, without finding a man who shall present a more striking realization of the beautiful conception of D'Aguesseau: "C'est en vain que l'on cherche a distinguer en lui la personne privee et la personne publique; un meme esprit les anime, un meme objet les reunit; l'homme, le pere de famille, le citoyen, tout est en lui consacre a la gloire du magistrat."

Mr. Chief Justice, one may live as a conqueror, a king, or a magistrate; but he must die as a man. The bed of death brings every human being to his pure individuality; to the intense contemplation of that deepest and most solemn of all relations, the relation between the creature and his Creator. Here it is that fame and renown cannot a.s.sist us; that all external things must fail to aid us; that even friends, affection, and human love and devotedness, cannot succor us. This relation, the true foundation of all duty, a relation perceived and felt by conscience and confirmed by revelation, our ill.u.s.trious friend, now deceased, always acknowledged. He reverenced the Scriptures of truth, honored the pure morality which they teach, and clung to the hopes of future life which they impart. He beheld enough in nature, in himself, and in all that can be known of things seen, to feel a.s.sured that there is a Supreme Power, without whose providence not a sparrow falleth to the ground. To this gracious being he trusted himself for time and for eternity; and the last words of his lips ever heard by mortal ears were a fervent supplication to his Maker to take him to himself.

[Footnote 1: The following letter of dedication to the mother of Judge Story accompanied these remarks in the original edition:--

"_Boston, September 15, 1845._

"VENERABLE MADAM,--I pray you to allow me to present to you the brief remarks which I made before the Suffolk Bar, on the 12th instant, at a meeting occasioned by the sudden and afflicting death of your distinguished son. I trust, dear Madam, that as you enjoyed through his whole life constant proofs of his profound respect and ardent filial affection, so you may yet live long to enjoy the remembrance of his virtues and his exalted reputation.

"I am, with very great regard,

"Your obedient servant,

"DANIEL WEBSTER.

"TO MADAM STORY."]