Subject: Why Justice Story Required Bible in Schools
Date: 02 Jan 1999 14:11:22 EST

According to Prof Michael Herz, Francis Lieber was "once this country's most respected law professor."[1] According to Prof. Carrington, "Lieber was recognized by his contemporaries, including James Kent and Joseph Story, as perhaps the premier legal academic of antebellum [pre-CivilWar] times." [2] Lieber helped draft an educational plan for the school created by Stephen Girard's celebrated will, which required:

Secondly, I enjoin and require that no ecclesiastic, missionary, or minister of any sect whatsoever, shall ever hold or exercise any station or duty whatever in the said college; nor shall any such person ever be admitted for any purpose, or as a visitor, within the premises appropriated to the purposes of the said college. [M]y desire is, that all the instructors and teachers in the college shall take pains to instil into the minds of the scholars the purest principles of morality . . . .

Daniel Webster argued for three whole days before the Supreme Court, urging the court to nix the will, arguing that the will prohibited the teaching of Christianity, and therefore was against public policy. But Justice Story was not persuaded, apparently finding Lieber's opinion more compelling.

This provision in Girard's 1831 will was reprinted with emphases in Lieber's plan.
Aviam Soifer, Dean and Professor of Law, Boston College Law School, writes:

Lieber interpreted this as simply the exclusion of "dogmatics--and their variety," and most assuredly not the exclusion of religion.[note omitted] Emphasizing that Girard had required instruction in morals, Lieber insisted that Girard could not have intended to deny a fundamental truth that he knew perfectly well: "that morals cannot be taught to youth without founding them upon man's relation to God -- without religion.[3]

The Father of his county had said in his Farewell Address:

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness - these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked,
Where is the security
for property,
for reputation,
for life,
if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle

Since Christianity undergirds our legal system, the Court said, and is thefoundation of the common law of the land,

It is unnecessary for us . . . to consider what would be the legal effect of a devise in Pennsylvania for the establishment of a school or college, for the propagation of . . . Deism, or any other form of infidelity. Such a case is not to be presumed to exist in a Christian country;

At that time all schools were Christian, because our Common Law history was Christian and our nation had a divine calling from God to take the gospel of liberty to all nations. The constitutions of many states explicitly held forth the duty of local governments to make sure Christianity was taught to its youth. There is no doubt, the Court said, that

under the auspices of the city government . . . the instructors and officers [of the school] will always be, men, not only distinguished for learning and talent, but for piety and elevated virtue, and holy lives and characters.
And we cannot overlook the blessings, which such men by their conduct, as well as their instructions, may, nay must impart to their youthful pupils.

Thus the US Supreme Court, speaking through Justice Story, unanimously upheld Girard's will over Webster's objections. The Christian religion *would* be taught by the city of Philadelphia in Girard's school:

Where can the purest principles of morality be learned so clearly or so perfectly as from the New Testament? Where are benevolence, the love of truth, sobriety, and industry, so powerfully and irresistibly inculcated as in the sacred volume?
Why may not the Bible, and especially the New Testament, without note or comment, be read and taught as a divine revelation in the college -- its general precepts expounded, its evidences explained, and its glorious principles of morality inculcated?

(1) Michael Herz, "Rediscovering Francis Lieber: An Afterword and Introduction," 16 Cardozo L Rev 2107 (1995).
(2) Paul D. Carrington, "Meaning and Professionalism in American Law," 10 Const. Comm. 297, 304 (1993)
(3) Aviam Soifer, "Facts, Things, and the Orphans of Girard College: Francis Lieber, Protopragmatist," 16 Cardozo L. Rev. 2305, 2312 (1995).

Kevin C.

And they shall beat their swords into plowshares
and sit under their Vine & Fig Tree.
Micah 4:1-7