If the devise be a good limitation at law, if it require no exercise of the favor which is bestowed on privileged testaments, then there is already an end to the question. But I take it that this point is conceded. The devise is void, according to the general rules of law, on account of the uncertainty in the description of those who are intended to receive its benefits.
"Poor white male orphan children" is so loose a description, that no one can bring himself within the terms of the bequest, so as to say that it was made in his favor. No individual can acquire any right or interest; nobody, therefore, can come forward as a party, in a court of law, to claim participation in the gift. The bequest must stand, if it stand at all, on the peculiar rules which equitable jurisprudence applies to charities. This is clear.
I proceed, therefore, to submit, and most conscientiously to argue, a question, certainly one of the highest which this court has ever been called upon to consider, and one of the highest, and most important, in my opinion, ever likely to come before it. That question is, whether, in the eye of equitable jurisprudence, this devise be a charity at all. I deny that it is so. I maintain, that neither by judicial decisions nor by correct reasoning on general principles can this devise or bequest be regarded as a charity. This part of the argument is not affected by the particular judicial system of Pennsylvania, or the question of the power of her courts to uphold and administer charitable gifts. The question which I now propose respects the inherent, essential, and manifest character of the devise itself. In this respect, I wish to express myself clearly, and to be correctly and distinctly understood. What I have said I shall stand by, and endeavor to maintain; namely, that in the view of a court of equity this devise is no charity at all. It is no charity, because the plan of education proposed by Mr. Girard is derogatory to the Christian religion; tends to weaken men's reverence for that religion, and their conviction of its authority and importance; and therefore, in its general character, tends to mischievous, and not to useful ends.
The proposed school is to be founded on plain and clear principles, and for plain and clear objects, of infidelity. This cannot well be doubted; and a gift, or devise, for such objects, is not a charity, and as such entitled to the well-known favor with which charities are received and upheld by the courts of Christian countries.
In the next place, the object of this bequest is against the public policy of the State of Pennsylvania, in which State Christianity is declared to be the law of the land. For that reason, therefore, as well as the other, the devise ought not to be allowed to take effect.
These are the two propositions which it is my purpose to maintain, on this part of the case.
This scheme of instruction begins by attempting to attach reproach and odium to the whole clergy of the country. It places a brand, a stigma, on every individual member of the profession, without an exception. No minister of the Gospel, of any denomination, is to be allowed to come within the grounds belonging to this school, on any occasion, or for any purpose whatever. They are all rigorously excluded, as if their mere presence might cause pestilence. We have heard it said that Mr. Girard, by this will, distributed his charity without distinction of sect or party. However that may be, Sir, he certainly has dealt out opprobrium to the whole profession of the clergy, without regard to sect or party.
By this will, no minister of the Gospel of any sect or denomination whatever can be authorized or allowed to hold any office within the college; and not only that, but no minister or clergyman of any sect can, for any purpose whatever, enter within the walls that are to surround this college. If a clergyman has a sick nephew, or a sick grandson, he cannot, upon any pretext, be allowed to visit him within the walls of the college. The provision of the will is express and decisive. Still less may a clergyman enter to offer consolation to the sick, or to unite in prayer with the dying.
Now, I will not arraign Mr. Girard or his motives for this. I will not inquire into Mr. Girard's opinions upon religion. But I feel bound to say, the occasion demands that I should say, that this is the most opprobrious, the most insulting and unmerited stigma, that ever was cast, or attempted to be cast, upon the preachers of Christianity, from north to south, from east to west, through the length and breadth of the land, in the history of the country. When have they deserved it? Where have they deserved it? How have they deserved it? They are not to be allowed even the ordinary rights of hospitality; not even to be permitted to put their foot over the threshold of this college!
Sir, I take it upon myself to say, that in no country in the world, upon either continent, can there be found a body of ministers of the Gospel who perform so much service to man, in such a full spirit of self-denial, under so little encouragement from government of any kind, and under circumstances almost always much straitened and often distressed, as the ministers of the Gospel in the United States, of all denominations. They form no part of any established order of religion; they constitute no hierarchy; they enjoy no peculiar privileges. In some of the States they are even shut out from all participation in the political rights and privileges enjoyed by their fellow-citizens. They enjoy no tithes, no public provision of any kind. Except here and there, in large cities, where a wealthy individual occasionally makes a donation for the support of public worship, what have they to depend upon? They have to depend entirely on the voluntary contributions of those who hear them.