The College of the Holy Cross

Brownson's Quarterly Review, July, 1849

ART. V. — House Document, No. 130. Commonwealth of Massachusetts. Report of the Joint Standing Committee on Education, to whom was recommitted the Report on the Petition of John B. Fitzpalrick and others. House of Representatives, Jlpril 13, 1849.

THE petition reported on was the petition of the Rt. Rev. the Bishop of Boston, and others, to the General Court, for an act incorporating the College of the Holy Cross in the city of Worcester. The petition was presented to the House by a distinguished member from this city, and referred to the Joint Standing Committee on Education. This committee consisted of seven members, and were divided on the subject of the petition four to three, the majority being against, and the minority in favor of, granting the act prayed for.     The majority, without assigning any reason, reported that " the petitioners have leave to withdraw." This report was at first silently accepted, but was subsequently reconsidered in the House, and recommitted, with instructions to the committee to report their reasons. This the committee did in the document before us, which consists, first, of the report of the majority, assigning their reasons for refusing, and, second, of the report of the minority, accompanied by a bill granting the prayer of the petitioners. The reports came up in order, and, after an animated debate of two clays, the bill was lost by a vote of 84 to 114, and the report of the majority was accepted.

This result was hardly in accordance with the real sense of the House, and we are sure could not have been obtained, had it not been for the false view of the prayer of the petitioners presented by the report of the majority. If the majority had represented the question in its true light and real bearings, free from foreign or irrelevant matters, there can be no doubt that a large majority of the House would have voted for the bill reported by the minority of the committee. Nevertheless, the petitioners make no complaint. The debate, which, with one exception, was characterized by more than ordinary courtesy on both sides, and by rare ability, good sense, manly feeling, statesmanlike views, legal learning, and logical acuteness and force on the side of the minority, will do good, and we entertain no apprehensions that the next legislature will not correct the mistake into which the present has been betrayed, and cheerfully grant the act of incorporation prayed for. We have full confidence in the wisdom, intelligence, and high sense of honor of this ancient Commonwealth, and it will take much to persuade vis that she will for a moment hesitate to retrace a false step, which through misapprehension she may have taken, when once she perceives that it is demanded by her own honor or justice to any class of her citizens.

The report of the minority, though we differ from it on one or two points, is able, and highly creditable to Messrs. Uphain, Motley, and Williams, whose names are appended to it ; and Mr. Uphain, especially, deserves the thanks of the friends of the college for his generous and stanch support of the bill he reported. But the report of the majority of the committee is a document of which we cannot speak in the terms which seem to us the most appropriate, without appearing to want that deference which should always be shown to the high official source from which it emanated.    Yet we must be permitted to say, that it appears to have been drawn up with a total disregard or misapprehension of lhe real nature of the prayer of the petitioners, and with an imperfect knowledge and understanding of the laws and policy of the Commonwealth, which, though natural enough in a fanatical country minister of one of the minor sects, we are surprised to meet in the report of a grave legislative committee. The best thing we are able to say of it is, that, when sound in its principles, it is inapplicable to the question before the committee, and when applicable, its principles are unsound and its statements unwarranted. Far be it from us to deny the ability or to question the motives of the learned gentleman who is understood to have penned it, and who so distinguished himself in the debate in the House ; but he seems to us to possess a very peculiar psychological conformation, and we are utterly at a loss to conceive the mental process by which he convinces himself that he arrives legitimately at his conclusions, or persuades himself that anything can justify his extraordinary statements. Instead of presenting the prayer of the petitioners for the action of the House in its true light and real bearings, his report seems to have been expressly designed to misrepresent it, to envelop it in a dense fog, to render it obscure and confused by mixing up with it foreign or irrelevant matters, and to prevent ordinary minds, without long and patient investigation, from being able to form any tolerable notion of its actual character, or to judge it on its own merits. That it had this effect on many minds in the House cannot be doubted ; and hence there is a propriety in our taking it up, and endeavouring to unravel its sophistries, to correct its mistakes and misstatements, and to present the prayer of lhe petitioners to the public in what we conceive to be its true light, and leave it to be accepted or rejected for what it really is, and not for something else.

It is true, this was done for the House, as far as it could be in the excitement of debate, by the very able and statesmanlike speeches of the supporters of the petition ; and if those speeches had been correctly or adequately reported and published, nothing more would need be said. But they were not correctly reported, and the ablest and most conclusive of them were mangled, mutilated, misrepresented, to a degree almost incredible. This was peculiarly the case with the masterly argument for the bill by Mr. Healy of Boston, who presented the petition to the House. Mr. Healy's speech, we may say, without lhe least disparagement to the speeches of the other gentlemen who preceded or followed him on the same side, covered the whole field of discussion, dissipated, to all who understood him, the fog which had been collected ground the question, disentangled it from all irrelevant matters which had been adroitly mixed up with it, placed it in its true light and real bearings, on its legitimate grounds, answered all the objections which had been or could be brought against it, showed its perfect accordance with the uniform policy of the laws of the Commonwealth, and proved conclusively, that, according to that policy, the petitioners made out a clear case, and were honestly entitled to a charter for their college ; and it did this with the calm earnestness and courtesy of manner, the clearness and distinctness of expression, the enlarged and liberal views, the depth and accuracy of legal knowledge, and the aptness and force of argument, for which that gentleman is so eminently distinguished. If we had that speech as it was delivered, we would not attempt to add a word of our own ; we would simply insert it in our pages, sure that it would carry conviction to every calm and deliberate reader. But we have it not, and cannot procure it. The report of it in the newspapers was meagre and false, in scarcely an instance giving what was actually said, and in some giving precisely the reverse. Under these circumstances, we trust we shall show no want of respect to the gentlemen who supported the prayer of the petitioners, if we renew the discussion of the question in our own feeble way, and reproduce as well as we can some few of the many arguments they used.

The petitioners—• and of their petition we can speak with some knowledge, for we drew it, and were present at their first hearing before the committee — state that "■ the College of the Holy Cross, a literary institution, in the city of Worcester, designed to teach a course of classical and scientific studies, equal to the course usually taught in the higher class of colleges in the United States, has now been in operation five years ; and it being proposed to enlarge the sphere of its operations," they ask that certain individuals named, " and their successors, be incorporated under the name of The College of the Holy Cross," with the " powers usually conferred on such institutions." Here is the prayer of the petitioners ; it is simply for an act of incorporation as a college, with such powers as are usually conferred on colleges. To this prayer it was objected that the petitioners ask for a grant of unusual powers, special or exclusive privileges, or the patronage of the Commonwealth for their religious denomination ; that their prayer cannot be granted without contradicting the uniform policy of our legislation, and revolutionizing, in principle, our whole system of public education ; and, in fine, that the petitioners do not make out a case which entitles them to an act of incorporation.

We here fairly stale the sum of all that was objected, and we say very frankly in the outset, that, if these objections are pertinent or well founded, they are conclusive. All professedly Christian denominations stand, under our constitution and laws, on the same footing, and the legislature has no power to discriminate between them, in favor or in disfavor of one or another of them. If any one of them, forgetful of this, —or, indeed, as to that matter, if any particular class of our citizens, forgetful of the equality before the law of all classes, — comes before the legislature with a petition for exclusive favors, for special patronage, it should uniformly meet a stern and indignant refusal. On this point we, at least, shall join no issue with the report of the majority of the committee. But we venture to affirm, that the objections urged are without foundation, for the petitioners asked for no exclusive favors, for no patronage, for no unusual powers ; that they asked for nothing incompatible with the policy of our legislation, for nothing more than the legislature is every day in the habit of granting ; and that they did, as we shall see, make out as clear a case as the legislature usually requires.

The whole substance of the prayer of the petitioners, simply stated, is to be permitted to use a corporate seal, to be empowered to do as a corporation what (hey are now doing, have been doing for the last five years, will continue to do, and have a perfect right to do, under our constitution and laws, as individuals, and which the Commonwealth, if they are molested, is now bound to protect them in doing. This, which is an undeniable fact, is of itself a sufficient answer to all the objections urged, except the last. The petitioners ask for no grant from thr; public treasury, they ask for no rights or powers in regard to their religion not now secured to them by the constitution and laws ; and they ask only for certain facilities in transacting a perfectly lawful business, and even these facilities they ask for the convenience of those with whom the college must transact business full as much as for the convenience of the college itself. How, then, can it be said to ask for patronage, for exclusive privileges, for unusual powers, or the introduction of a new principle into our legislation ?

As far as we can understand the report of the committee, which unhappily is rarely very definite in its statements, Us charge is grounded on the fact that the college belongs to a particular denomination of Christians, and is to be open only to such as conform to the faith, discipline, and worship of that denomination.  This, the report says, "appears to constitute the distinctive feature and turning-point of the case."    " The petitioners ask for a college strictly and exclusively sectarian in its type and character, under influences and rules which practically exclude the great majority of our youth, and which, being vital, cannot be altered." (p. 4.)    This is hardly correct, but let it pass. Whence, we ask, does it follow that the petitioners ask for anything exclusive, any unusual power, or anything contrary to the policy of our laws, even if this be so ?    Does the report mean to insinuate that the petitioners ask, or need, an act of incorporation to authorize them to teach their religion in their college, and to receive into it only those who conform to it ?    If so, it is a mistake.    The petitioners have asked, and need to ask, for nothing of the sort ; for the right to do all this they already possess, and they are exercising it now with the recognition and under the protection of the constitution and laws of the Commonwealth, which guaranty to all the freedom of faith and worship.     The Congregationnlists have  a perfect legal  right to establish  a  college  in which none but Congregationalism shall be professors, and none but Congregational youth shall be admitted as pupils or students.    As much must be said, too, of Protestant Episcopalians, Baptists, Methodists, Unitarians,  Universalists, and Quakers.      Less than this, then, cannot be said of Catholics ; for they, in the eye of the law, stand on the same footing with Congregationalists, and have equal rights  with them.    If, then,  Catholics  choose at their own expense to found a Catholic college exclusively for Catholics, into which none but Catholics are admissible as pupils or students, they have a legal right, and do not need a legislative grant to enable them, to do so, as the report itself, with an inconsistency remarkable enough, fully concedes.     " Our principles and policy forbid,"  it says,   " our giving special privileges for sectarian education, while we cheerfully tolerate and protect all the institutions sectarian influence may establish."—p. 7-

The incorporation of a college founded by, and exclusively
for, Catholics does not give to the college the right to be exclusively Catholic ; for the right to be so it possesses prior to
the act of incorporation, and independently of it. That right, which is not conferred by the charier, must survive the incorporation unless the charter itself positively annuls it. Here is what the report has the air of overlooking. The report confounds not taking away a right with conferring a right; and because the petitioners refused to accept a charter that would take away a right which they now have, it represents them as asking a charter that confers upon them that right, and therefore as asking for a special favor, and the grant of unusual powers,— a misapprehension, or an instance of fallacious reasoning, not usual, we apprehend, in grave legislative documents.

The report says the committee offered the petitioners the charter of Amherst College, in which is a clause prohibiting the religious freedom which the petitioners refused to surrender, and concludes, from the fact that they would not accept it, that they asked for unusual powers. This conclusion is not warranted. The petitioners did not refuse that charter because it did not confer on them an unusual power, but because it required them to make an unusual surrender of private rights. They did not ask a charter which should confer the right of making their college a Catholic college, exclusively for youth of their own religion, but they did not choose to accept one which deprived them of the right to make it so. The charter of Amherst College would deprive them of their religious freedom, and they did not choose to be deprived of it. Nor did they think the legislature had any right to insist on their giving it up as the consideration of receiving an act of incorporation. If they had come before the legislature with a request to be incorporated as a public institution, to be supported in whole or in part at the public expense, they would cheerfully have conceded the right of the legislature to exact the conditions proposed as those on which it would bestow its bounty ; for the State has no right, placing as it does all religious denominations on the same fooling, to endow any literary institution which is for the exclusive benefit of any particular religious denomination. Public institutions, supported at the public expense, must be open to the public, open to all classes of citizens who choose to avail themselves of them. The State has no right to endow a college under the control of Catholics, which Protestants cannot enter without violence to their Protestant conscience ; and, for the same reason, it has no right to found a college under the control of any one of tbe Protestant sects, which Catholics cannot enter without violence to their Catholic conscience. But tbis has nothing to do with tbe case before us, because tbe petitioners did not ask for State patronage, for a public endowment. They had erected, sustained thus far, and proposed lor tbe future to sustain, their college with their own private funds, without receiving or wishing to receive any bounty from the public treasury. Tbis makes all the difference in the world. The reasons which justify, nay, demand, the restrictive clause of tbe charter of Amherst College in tbe charter of a public college, designed to be a public college, and to be supported as such from tbe public treasury, could not, therefore, apply in their case, and we do not understand what right the committee had to propose such a restrictive clause. To propose it was to demand the surrender of a right without offering any compensation in return.
Tbe original policy it adopted in regard to Amberst College, and which it adopted under tbe influence of feelings hostile to the denomination that founded it and prayed for its incorporation, tbe legislature itself has since abandoned. That policy was to subject the college to all the restrictions, and yet to grant it none of the advantages, of a public institution, — to take away the denominational rights of its founders and supporters, and yet to give it no claims upon the public in return. A more unjust policy it is difficult to conceive, and it was felt to be extremely unjust at tbe time, hy the friends of tbe college. But they submitted, probably because they saw that by submitting they could, in practice, keep tbe college under their control, make it in fact as denominational as they wished, and yet one day get it supported as a public college ; for by submitting they obtained the right to come into tbe legislature, and tell it, that, having made tbe college a public institution, it is now bound to support it. They have availed themselves of tbis right, and Amberst College is now supported in part from the public treasury. The legislature saw that it could not maintain its original policy, that it must, in common justice, either give back to tbe college its religious freedom, or else give it public support. It chose the latter ; but tbis was as much an abandonment of its original policy, as if it had struck out the clause restricting tbe religious freedom of the college. It was hardly fair in the committee, with this fact before their eyes, to offer the petitioners, who had no wish to make their college a public institution, or to receive State patronage, the charier of Amherst College. Nor was this all. The petitioners asked for an act conferring the powers usually conferred, and the committee offered them a charier which demands an unusual surrender of rights ; and, because the petitioners refused it, the committee gravely report that they asked for unusual powers, and would not be content with a charter conferring those which are usual. Hence the majority and the advocates of their report in the House take occasion to rebuke, in their smooth way, the petitioners for their impudence in asking more than equal rights ; and this with such blandness of manner, and such an air of good faith, that some did not for the moment see through it, and verily supposed that the committee were really willing to grant a reasonable charter, but that the petitioners were so exorbitant in their demands that it was the painful duty of every honest legislature to refuse them. Now the committee knew perfeclly well, before they offered the charter of Amherst College, that it would not be accepted. Why, then, did they offer it ? Was it because they dared not assume the responsibility of directly refusing the act of incorporation prayed for, and because they wished the public to get the impression that the refusal was due to the fact that the petitioners themselves would not accept a charter in the usual form ? Are we wanting in respect to the committee, if we suggest that in this they gave a better exemplification of what is popularly understood by the word Jesuitical than of that open and manly proceeding which we always look for in grave and dignified legislators ?

But how could the refusal on the part of the petitioners to accept the charter of Amherst College be construed into a proof that they would not be contented with a charter in the usual form ? At the close of their first hearing, the committee asked the petitioners if they wished anything peculiar in their charter; and were answered, by ourselves, " No ; noih-ing peculiar ; all we want is a charter in the usual form." But the charter of Amherst College is not in the usual form ; it is peculiar ; it stands " solitary and alone," and the restrictive clause to which the petitioners objected is found in the charter of no other incorporated literary institution in the State. This fact the committee knew, or should have known. Surely, to offer an unusual form was not to offer the usual, and to refuse an unusual form was not proof that the usual form would not have been accepted. The committee say the petitioners would not accept a charter in the usual form, and adduce as proof the fact that they refused to accept an unusual form ! The fact is, the committee did not offer the petitioners a charter in the usual form, and they had the full assurance, lhat, if they would, it would not be refused. If the committee were willing to give a charter in the usual form, why did they not offer it ? Did they offer the charter of Williams College ? Not they. If they had, it would have been willingly accepted ; and that is a far more usual form than that which was offered. Yet the majority place their refusal to grant the prayer of the petitioners solely on the ground that they asked for unusual powers, exclusive privileges, and were not willing to be placed on the same footing, before the State, with other religious denominations ! Is the logic of the majority of the committee as peculiar as their ingenuousness ?

The report has much to say of the exclusiveness avowed and insisted on by the petitioners. Its author would fain persuade us that this exclusiveness was the sole objection to granting their prayer. He alleges that the petitioners " stated that they were exclusive and must be so, and were frank enough further to admit, that, had they the civil power, they could not exercise it otherwise than exclusively as to religious rights." That the petitioners made any such admission, in the sense here implied, as to what they should be obliged to do if they had the civil power, is not a fact, and such admission would have been false if it had been made, as every man knows who knows anything of the religion professed by the petitioners. The author of the report must have misapprehended the answer of the petitioners to a question which exceeded the competency of a legislative committee to ask. Whether the petitioners are or are not exclusive in their religious views, what are or are not their religious tenets, the principles of their discipline, or the forms of their worship, their merits or demerits as a religious denomination, are matters, as the report itself, with admirable inconsistency, frankly acknowledges, " with which the legislature has nothing to do," (p. ?,) and therefore no proper subjects of legislative investigation or of legislative report. The petitioners, doubtless, have their religion; but whether true or false, good or bad, is, so far as the government is concerned, their own private affair. They are free to profess it, and they have the right to call in the Commonwealth, if necessary, to protect them in its free, full, and peaceable profession and enjoyment ; for need we at every turn repeat, that all professedly Christian denominations, under our constitution and laws, stand on the same footing, and have legally, not, as some say, equal toleration, but equal rights ?

That the College of the Holy Cross is designed for Catholic youth, and refuses to receive non-Catholic youth, nobody denies ; but it is not true, as the report appears to maintain, that this exclusiveness is vital, is a rule of the Catholic religion, and cannot be altered. The petitioners did not say, that, in this respect, they are and must be exclusive. They informed the committee in our hearing expressly to the contrary, that the rule obtained in no other Catholic college in the United States. There is no principle in the Catholic religion which requires Catholic colleges to refuse to admit to their course of studies non-Catholic youth, and in all the Catholic colleges in the country, except the one in Worcester, they are received, and without being required to conform to the Catholic faith and discipline.
The college in Worcester is exclusive in this respect, because its founder deemed it prudent to make it so, and because its present managers have seen no good reason for making it otherwise.     The great complaint against Catholic colleges, particularly in the West, is that they are proselyting institutions, intended,  under pretence of giving a classical education,  to steal away the youth of non-Catholics, and convert them to the Catholic  religion.      This  complaint,  we all know,  was brought against the Female Academy of the Ursuline Convent in Charlestovvn, and nobody doubts that one of the principal causes which excited a mob to lay it in ashes was the fact that many of its pupils were from our respectable Protestant families.    It was to  obviate  a like  catastrophe for his college, to escape the loud complaints made by non-Catholics against the Catholic   literary institutions of the country, that its munificent founder, the late learned and eminent Bishop Fenvvick, who wished  as  far as  possible   to   live   in   peace with all men, and to give occasion of wrath to none, adopted the exclusive rule, and refused to receive into the College of the Holy Cross any but children of Catholic parents, or such as, with their own free will and the free and full consent of their parents or guardians, were preparing to become Catholics. He wished a college for the Catholic youth growing up in our midst, under his care, both for their sake and for the sake of the community, for he was a public-spirited  citizen, a friend of the young and of education ; and he sought to obtain such a college, without giving umbrage to his Protestant neighbours and fellow-citizens, or doing anything to provoke their hostility or suspicions against his college, or the people of his charge. Here was the motive which led to the adoption of the rule, a motive wholly in the interests of the non-Catholic portion of the community ; and the rule is unalterable only because the col» lege does not choose to alter it. Being established and supported by Catholics with their own private funds, the college believes that it has the perfect right to confine its benefits to Catholic youth, and therefore does not choose to accept a charter which prohibits them from doing so, or which requires it with their private funds to educate youth out of their denomination. But if the legislature should attempt to make the rule obligatory, and forbid the reception of any but Catholic youth, it would perhaps find the college as little disposed to accept its action as when it proposes a charter which suppresses it. This, as the college is private properly, and the petitioners do not wish to make it a public institution, they regard as a matter within their own competency, and they insist on retaining their freedom to receive or not to receive, as they judge proper.

Is it not, however, a little singular that gentlemen who evidently are no admirers of the religion of the petitioners should make it their only objection to incorporating the College of the Holy Cross, that it refuses to receive to its course of studies the children of non-Catholics ? Do they thus object, because they have sons whom they wish to place in that college, —■ because they are desirous that the youth of the Commonwealth should be educated under Roman Catholic influences, in a Roman Catholic college, by Roman Catholic priests ? or is it because they are unwilling that Catholics should have a college for their own youth, and seize upon this exclusiveness as a pretext for suppressing as far as in them lies the freedom of education ? Shall we be unjust to those gentlemen if we suggest, that, in all probability, they would find the college still more objectionable to thetn if it were not exclusive ? We can easily fancy, if the college had been open to all, that this same highly respectable committee would have rung the changes on the very opposite objection, and have gravely reported, Since the College of the Holy Cross is evidently intended to be a proselyting institution, and, under pretence of giving a classical education, to mould the young and ductile minds of our non-Catholic youth to its peculiar religion, and since the legislature has no right to aid or countenance it in this its insidious design, therefore, the petitioners have leave to withdraw. They could have made this objection, under the supposition, with as much propriety as the one they now urge ; and we can hardly doubt that they would very readily and even eagerly have urged it.

What we have said sufficiently proves that the petitioners asked for nothing unusual, nothing exclusive, — for no State patronage ; we further add, that what they did ask for required the introduction of no new principle into our legislative policy. On this point we reluctantly differ from the excellent report of the minority, as well as from that of the majority. The report of the majority, as we have intimated, is never very explicit, and insinuates rather than distinctly states its meaning ; but if it is not mere verbiage or idle declamation, which we are not by any means to suppose of a grave legislative report, it means to assert that there is not a single literary institution, within the bounds of the State, incorporated on the principle contended for by the petitioners. The petitioners ask for an act of incorporation which leaves them their present right of not admitting into their college non-Catholic students, or of admitting only the youth of their own denomination. This the committee themselves tell us is "the distinctive feature and turning-point in the case," and the principle here involved is that, and that only, to which they profess to object. This principle, they imply, is a novelty in our legislation. " Has Massachusetts," they ask, *' ever recognized such a principle ? Is there an incorporated institution within her borders which requires such a religious conformity as to operate to the exclusion of a single individual ? Are our common schools or our normal schools on such a basis ? Are not one and all of the corporate literary institutions, from the professional schools of theology, law, and medicine, down to the smallest district school, open to all classes without distinction of sect, the privileges of which they may enjoy without any annoying religious conformity ? " This, if it means anything to the purpose, means that there is not a single incorporated literary institution in the Commonwealth, which is not legally open to all classes of citizens, and therefore legally forbidden to exact any religious qualification as the condition of,the free and full enjoyment of its benefits. Is this true ?

The committee raise here a question of fact, not of speculation, and, striking out of the account the common and normal schools, which are State schools, and do not come into the category of incorporated institutions in the sense applicable to the case before us, the reverse of what they state, with the single exception of Amherst College, happens to be the fact. The right to be exclusive, in the sense in which the College of the Holy Cross is exclusive, is in this Commonwealth inherent in every religious denomination, because essential to the freedom /of each to profess and teach its own religion. Its denial would be the total denial of the freedom of religion, which is guarantied by the constitution and laws to every professedly Christian denomination. It therefore survives in every incorporated literary institution whose charter does not expressly prohibit it. No clause in the charter is required to confer it; it is legally possessed, if there is none that takes it away. This is undeniable. Hence the petitioners asked for no charter conferring that right; they only refused a charter which took it away, — that is, deprived them of their religious freedom.

Now the clause prohibiting this religious freedom is to be found in the charter of no incorporated literary institution in this Commonwealth, except that of Amherst College ; and the only instances we are aware of, in the whole history of the legislation of this Slate, in which there has been an attempt by the legislature to suppress the religious liberty of literary institutions, are the one made under anti-Trinitarian and anti-Calvin-istic influences in the case of Amherst College, and that made by the majority of the committee in the case before us. The principle which the committee say is not recognized by Massachusetts is recognized by her to the full extent that the petitioners demand in the charter of Williams College at Williams-town, the Baptist Theological Institute at Newton, the Wes-leyan Academy at Wilbraham, and the Congregational Theological Seminary at Andover. Here are four incorporated institutions, not one of which is subjected to the prohibitory clause of Amherst College. Is it not singular, that, in the face of this well-known and undeniable fact, the committee should make their extraordinary denial ? Is it not singular that they should say that none of our incorporated literary institutions are on the basis they object to, when, in fact, all but one are on that, basis and no other, and possess all the freedom for their religion demanded by the College of the Holy Cross ?
The case of the Andover Theological Seminary is peculiarly apposite to our purpose. It was founded by private munificence for the Congregational denomination.    It holds its funds on the
express condition of being exclusively Congregational. They are forfeited unless the professors subscribe a certain creed, and to prevent it from ever becoming other than exclusive, or departing from the faith to which it is pledged, the professors are required solemnly to renew their subscriptions to that creed once in every five years. Everybody who knows the history of the institution knows that it was intended to be strictly denominational, and that every legal device the astutest lawyers could devise was resorted to to prevent it from ever becoming otherwise. The motive of its founders was to guard against its following the example of Harvard College, which had become Unitarian ; and they secured for it, not only the legal right to be strictly and exclusively Congregational, but bound it by all the means in their power never to be anything else. And yet An-dover Theological Seminary enjoys a charter from the legislature of this State. Here is a recognition of the principle objected to by the committee, of which they should not have been ignorant. It is true, that when Mr. Healy in the House asserted that Andover was in law and in fact exclusive, the gentleman who presented the report of the majority of the committee rose in his place and contradicted him. He said that he had himself been educated at Andover ; he knew the institution well, and asserted on his own knowledge that such was not the fact, either legally or practically. But Mr. Upham of Salem, who presented the report of the minority, produced, from the State library, the charter, and asked permission to read it, which was granted. When it was read, the respectable and learned gentleman who had so positively, on his own knowledge, contradicted Mr. Healy, rose and frankly acknowledged that he was wrong, and that what Mr. Healy had said was true. The acknowledgment was honorable, no doubt, to the gentleman who made it ; but, nevertheless, it left him in an attitude somewhat awkward, and proved that his statements, whether in his report or in his speeches, were not always to be taken as indisputable facts.

This incident settled the question as to exclusiveness of the Andover Seminary, which was well known before to everybody, except to the reverend gentleman who had received his education in it, and knew it well; and settling that question negatived the assertion of the committee. The idea that theological institutions founded by a particular denomination, for the express purpose of teaching its peculiar theology, and training up candidates for its peculiar ministry, are not exclusive, and that their benefits can be equally enjoyed by those who do and those who do not conform to the religion taught, seems to us original, and we doubt whether it ever entered into the head of anybody before it was conceived by the learned and ingenious author of the report of the majority of the committee. It perhaps ought to secure him great honor as an original inventor, but we fear that he will find most people disposed to regard his invention as nothing more than the product of a remarkable idiosyncrasy, or of a distempered fancy which sometimes sees things " not to be seen."
It is nothing to our purpose whether Williams College, the Wesleyan Seminary, the Baptist Theological Institute, and the Andover Theological Seminary, are or are not in practice exclusive ; it is enough for our purpose that they have the legal right to be as exclusive as they please. There is nothing in their charters, or in the legislation connected with them, that prohibits them from being as strictly denominational as the College of the Holy Cross. Yet it is said that even in practice they are not quite so unexclusive as they profess, and we much doubt if there is one of them that does not exert such influence as it has to secure conformity to its own peculiar religious views and tendencies. But whether so or not, we do not ccm-plain. We say they have the legal right to be exclusive, because there is nothing in their charter restricting them ; and having this legal right, we say it is a mistake to assert that the petitioners ask for the introduction of a new principle into our legislation. The truth is the reverse of what the committee assert. What the petitioners ask for is in perfect accordance with the principles, with one exception, sanctioned by the uniform practice of the legislature, and that exception, as we have seen, is not to be taken into the account.
The principle which the committee assert, simply stated, is, that no charter of incorporation should be granted to an institution which is under the control and for the exclusive benefit of a particular religious denomination. But this principle is unknown to our legislation, and the legislature never refuses to incorporate a religious congregation or parish on the ground of its exclusive denominational character. We have not heard that any objection of this sort is ever raised. Congregational-ists, Baptists, Unitarians, Universalists, and others, obtain acts of incorporation for their congregations and parishes, which are for purely denominational purposes and no others. What is the difference between incorporating a denominational parish, and incorporating a denominational college ? In either case the legislature gives no sanction to the religion of the corporation ; it merely grants to a class of citizens facilities of using a corporate seal in the transacting of business which is perfectly lawful to them as individuals. The principle is the same, whether the corporation be a college or a parish ; and there is nothing to be objected in the one case that may not be in the other.
The committee seems all the time to labor under the hallucination, that the petitioners ask the legislature to grant them the right to teach their religion, and to authorize them to require the youth admitted into their college to conform to it. This, we grant, would be the introduction of a new principle into our legislation. But how often must we repeat that they ask no such thing ? They recognize in the legislature no authority to give or to take away this right. This is a matter on which they only ask the legislature to leave them where they are. They say that they have a right to teach their religion, that they have a right with their own funds to erect a college and to say who may enjoy its advantages and who may not, and that to refuse them an act of incorporation because they will not consent to be deprived of that right is as unreasonable and as unjust as it would be to refuse to incor wrate a manufacturing company on the ground that it claimed t le right of exercising its' own discretion as to the persons with whom it should deal or whom it should employ. Suppose such company claims the right, and should very frankly tell the legislature, beforehand, that it intends, to trade with and employ only members of the Congregational denomination: would that be a valid reason for refusing to charter it ? or would a charter not denying them that right require the introduction of a new principle into our legislation ? If so, on what principle does the legislature charter a company to erect and keep a temperance hotel ? The legislature has nothing to do with those private transactions of a private corporation, for the doing of which corporate powers are neither needed nor asked, any more than it has with the transactions of a private individual ; and therefore they can be no reason for granting or for withholding a charter. The things which the College of the Holy Cross claims the right to do, and to which the committee object, are not1 things to be done under cover of a charter of incorporation, — will not be, and are not wished to be, done by virtue of any corporate authority the legislature may confer; but will be done by the corporators in their uncorporate capacity, by virtue of rights possessed by them in common with all private or associated citizens of the Commonwealth. The corporation as such has no more to do with them than the manufacturing corporation has with the fact whether the individual corporators go to bed at nine o'clock or at twelve, eat white bread or brown, or pray standing or kneeling. The corporate seal merely covers the business transactions, and all else that is done is done by virtue, not of corporate, but of private pow-'ers. The charter of incorporation gives, then, no sanction, express or implied, to the religion, discipline, worship, internal arrangements, or management of the college, and the objection founded on the supposition that it would give a sanction to them falls to the ground.

The pretence set up, that the incorporation of the College of the Holy Cross would revolutionize our whole system of public education, cannot stand a moment, for the very good reason that the principle on which it asked to be incorporated is the principle common to all our colleges and incorporated literary institutions, with the single exception of Ainherst College, and because its incorporation does not make it a part of our public system of education, but leaves it as it is now, a part of the private education of the Commonwealth. It has never been, and we trust it will never be, the policy of old Massachusetts to prohibit private education, and adopt a system of compulsory public education. She always has respected, and we trust always will respect, in matters of education, the rights of conscience, and also the rights of parents and guardians. She establishes a system of public schools, and a noble system it is too, and for this we honor her ; but she does not compel parents to send their children, or guardians their wards, to her public schools, or forbid them to open or patronize private schools, if such be their choice. Far distant, we trust, is the day when she will follow the example of European despots and deny to her citizens the liberty of education. There need, then, be nothing more said on this point. The incorporation of the College of the Holy Cross would not authorize it to perform a single act or do a single thing which it is not now doing, and which it may not continue to do with the full sanction of our laws as they are. This is an undeniable fact, which we beg the opponents of the college to bear in mind. If, then, the college does not now interfere with our system of public education, and everybody knows that it does not, it would not, and could not, if incorporated. We ourselves should be sorry to see any measure adopted which would revolutionize or in any way interfere with our present system of public schools ; for we happen to be citizens, and not unproud citizens, of old Massachusetts, and we have as deep an interest in the preservation and successful working of that system as has any other citizen of the Commonwealth. That system is designed to be open to all the children of the Commonwealth, and to furnish them a good common education. Considering the variety of religious views in the State, and the' fact that the State is bound to treat them all witli equal respect, the relation of the public schools to religion must be negative, excluding what is peculiar to each denomination, and admitting only what is common to them all. There is no justice in the complaints which have been heard from several quarters, that our common schools are not as positively religious as they should be. We are in favor, and decidedly in favor, of a system of common school education for all the children of the Commonwealth, and we are not so unreasonable as to object to the only conditions on which such a system can be established and maintained. Our common schools cannot be more positively religious than they now are, unless they adopt the peculiar doctrines of some one of the several religious denominations which divide our citizens ; and if they were authorized or permitted to do this, the favored denomination would be virtually established by law, and its peculiar religion made the religion of the State, which would be to deny that freedom of its religion now secured to every denomination, and to render it henceforth untrue that all denominations stand on the same fooling before the constitution and laws, having equal rights, and entitled to equal legal respect and protection.

But at the same time that our public schools must refrain from meddling with religion, except so far as all professedly Christian denominations are agreed, it will not do for the State to say that we shall have no schools which are more positively religious ; for that would be to deny to every denomination the freedom of its religion, — to prohibit, so far as education is concerned, all religion but a vague generality, which, if taken alone, is satisfactory to no class of believers, and in practice is tantamount to no religion at all. The deficiency of religious instruction in our common schools is now supplied by denominational schools, — by each denomination in its own way, according to its own views of truth, — and therefore is no evil, and no objection to the system of common  school instruction.    But
to deny to our citizens the right of establishing and supporting these denominational schools would be the denial to each denomination of its undoubted constitutional right to educate its children in its own peculiar religion. The State cannot do this ; for, if it cannot in its schools teach any particular form of Christianity, it cannot, on the other hand, authorize the teaching of infidelity. But when any denomination asks for more positive religious instruction than the State can give without discriminating between denominations, or when it asks for schools in which its children, while acquiring a literary and scientific education, shall be trained up in its peculiar religious faith, discipline, and worship, it must establish and support them at its own expense. It is only in this way that, in a community divided on the subject of religion into different denominations or sects, it is possible to establish a system of public instruction on the one hand, and of religious education on the other, with a due regard for the equal rights of all and the special religious views of each. The State provides a system of education for all in common, as far as all are willing to abide by what all have or can receive in common, and each denomination provides for what is not common to all, for what is peculiar to itself, by a system of private schools of its own, free, so long as they infringe the rights of no other denomination, from the control of the public. This is what our Commonwealth docs, and with this no reasonable man can find any fault.

Catholics are as much attached to the existing system of common schools as Protestants are, as we may infer from the fact, that full one third of all the children in the public schools of this city are children of Catholic parents. They derive great advantage from these schools, — no class of our citizens greater advantages than they are now deriving, — and they must be strangely shortsighted to wish for the sanction of any measure by the legislature that shall tend to lessen their importance or their efficiency, — that may change the basis on which they are established, or endanger their existence. But these schools, though sufficient for the great mass of the children of the Commonwealth, arc not sufficient for all. We are the friends of classical education, and ask for schools of a higher order, that can give it ; we wish also to be free to make our own selection of the schools to which we shall send our sons or our daughters to obtain it ; and we apprehend that, in saying this, we only express the common sentiment and the common right of all parents.    We wish also to be able, when we send our children
away from the domestic circle to a school where we cannot ourselves watch over their religion and morals, to send them to a school in which we have full confidence, and where they will ho under such religious influences as we approve, and trained up in the religion and morality we hold to be true and acceptable to their Heavenly Father. This cannot be, unless the school is under the control of the denomination to which we ourselves happen to belong. We are, therefore, in favor of every denomination having its own denominational college, supported, indeed, not from the public treasury, but from its own private funds. No harm would result, for a sound and thorough education is not likely to become too common or to be loo widely diffused through the community. We must deal with the world as we find it. Various denominations with peculiar views exist, and are " fixed facts " in our community, and the State cannot overlook them, and deal with her citizens as if they were all of the same religion, or as if she had a right to discriminate between one form of Christianity and another. Up to a certain point, all can go together ; up to that point let the State provide, as in our common schools, for all in common ; beyond that point, let her simply furnish the necessary facilities and protection for each denomination to provide for itself in its own way, — only exacting that each shall respect in the other the right it demands for itself.

But the report furthermore asserts, that, passing over the other objections, the petitioners do not make out a case ; that is, do not show a public reason why they should receive a charter. " It seems to your committee," says the report (p. 6), " that there is a fair and sufficient objection to the charter prayed for, that the institution under it will still remain a private and not a public institution. A public institution is one open to the whole community, and which is supposed to confer its benefits as widely as possible. The legislature have no right to grant any charter without the prospect of a public benefit to result plainly and promptly therefrom. The general ground of objection to acts of incorporation is, that they confer no benefits on the public, but are special and exclusive in the interests they protect. This objection, wherever it lies, is conclusive." It does lie against the charter prayed for ; therefore the legislature has no right to grant it.

But this objection, if valid against the prayer of the petitioners, is valid against all corporations not public in their character, and proves that the legislature has no right lo charier a pivuto corporation, — which is the extreme radical doctrine on the subject. Do the committee mean to maintain that all private corporations are unconstitutional ? This is a bold doctrine to be put forth in a State all covered over with private corporations, by the committee of a legislature in the daily habit of granting them. If this doctrine is to prevail, it will stand our numerous literary, religious, and manufacturing and other business corporations in hand to look well to their position, and close up their concerns as soon as possible, for their charters are no better than so much waste-paper. No manufacturing or simple business corporation is a public corporation ; no particular incorporated religious or denominational society or parish is a public corporation ; and Andover Theological Seminary is nothing in the world but a private corporation. The legislature, if the committee are right, has for a long time been singularly deficient in regard for the constitution, and our wisest statesmen and legislators have been mere ninnies. What a pity that the learned author of the report had not been born some fifty years sooner, so as to have saved our legislators from committing their numerous blunders !
But we deny the doctrine of the report on corporations. The principle which it asserts may be true, when applied to the granting of powers to corporations, which interfere with the property, rights, or privileges of others ; but powers of this sort do not inhere in the corporation as such, and cannot be exercised by it, unless specially granted. Mr. Hcaly stated the true doctrine on corporations, and showed conclusively, in his speech in the House, that the established policy of the Commonwealth is to grant charters of corporations where there is a reasonable prospect of benefit to the corporators, and no danger of injury to the public, or infringement of the rights of any other party. Such corporations are for the public benefit, because the public benefit is in the benefit of the parts, and is augmented whenever the benefit of any one of the parts is augmented without subtracting from the rights of any other part. This is the principle of Massachusetts legislation in regard to corporations, as is obvious to any one who chooses to look into the history of her legislation on the subject. The applicants for a corporation must undoubtedly satisfy the legislature that there is a reasonable prospect of a benefit to be derived to them from the act of incorporation, and that what they ask does not interfere with the rights or legitimate interests of any other party.   When they have satisfied the legislature on these two points, they have made out their case, and are entitled to a charter, and the legislature is bound by the uniform policy of the Commonwealth to grant it.

Nobody pretends, that, in the case of the petitioners, the first of these two points was not sufficiently made out; the second was evident of itself, because all they proposed to do as a corporation, the use of the corporate seal excepted, they are already doing with the sanction and under the protection of the laws. Their case was then made out in both its parts, and the legislature was bound by its uniform policy to grant their prayer. The corporation being for their benefit, and injurious to no one, is for the public benefit, and they had therefore the right to ask it, not as a boon, not as a special favor, which the petitioners had too much self-respect as well as too much public spirit to ask, but as a facility for the transacting of a perfectly lawful business, due from the legislature, under like circumstances, to any class of citizens who may ask for it ; for it is bound to consult the public good, — to promote the public benefit.
But the petitioners made out, in fact, a stronger case than is here supposed. They petitioned, not for a college, — for that they had, and had founded and intended to support with their own private funds, — but for an act of incorporation. Their college is designed to impart a literary and scientific education to a very considerable number of the youth of this Commonwealth, who would not receive that education elsewhere, and we need not say, here in Massachusetts, that the education of any portion of our youth is a public benefit. That matter is not here a mooted question. Education is regarded as of so high public utility that even private individuals who have no children to educate are publicly taxed to pay for it, and the public at large are compelled to contribute, not only to the support of common schools, but of academies and colleges, whose direct benefit, in the nature of the case, can be enjoyed only by a very small portion of the community. We need but refer to the public grants to Cambridge University, to Williams and Amhersl Colleges, to prove that the Commonwealth holds the literary and scientific education of the few to be for the benefit of the many, — for the benefit, in fact, of the public. Nay, the committee themselves concede, this, and thus answer their own objection. " True," say they, " the education of their children in learning and knowledge WILL RE A PUBLIC BENEFIT." (p. 7.) This is enough, and, even conceding the untenable doctrine of the committee on corporations, would entitle the petitioners to the grant of the charter prayed for. The committee add, indeed, that the petitioners " have the means of all this through the public schools and institutions, which are truly open to them as to all" ; but this, though it might bo a good reason against incorporating an additional college to be supported in whole or in part from the public treasury, is no objection to the incorporation of a college to be supported by private funds, without any charge on the public. Indeed, the petitioners made out an unusually strong case, if the committee are to be believed, why they should have had the act prayed for. They proposed to support their college themselves, and, in doing so, proposed to confer from their private resources a public benefit; for the committee acknowledge that " the education of their children in learning and knowledge would be a public benefit." It is not every day that citizens come before the legislature, and petition to be authorized to use a corporate seal in conferring a public benefit at their own expense. Yet this is what the petitioners actually did, according to the committee themselves. Nevertheless, the committee regarded it as a fair and sufficient, reason to refuse them a charter, because no public benefit was to result therefrom !

The committee appear to treat the prayer of the petitioners as if their college was designed primarily for teaching the Roman Catholic religion. If such had been the fact, it would have been no valid reason against incorporating it, since our constitution and laws place Roman Catholics and the several Protestant sects on the same footing, and guaranty to them all equal rights. But such was not the fact. The College of (ho Holy Cross is a literary and scientific institution, nnd its primary design is to impart a literary and scientific education. The religion is incidental to the main design. It can hardly be proposed, in a Christian commonwealth, that youth shall be sent from home, and educated in colleges which have no religion, no faith, no worship, — especially at that critical period when the passions begin to unfold, and the character is forming. We profess to be a Christian people, and are by no means prepared for a system of infidel or atheistic education, like that which Frances Wright and Abner Kneeland proposed and labored to introduce into our country. But if religion at all is to enter into our colleges, it must enter in some form, and then in the form of some particular denomination. It is impossible that it should  be otherwise, for religion in a vague generality abstracted from all forms is practically no religion at all. It must be Catholic, Episcopalian, Congregational, Baptist, Methodist, Unitarian, &c. Hence the religion of Cambridge University is Unitarian, of Williams and Amherst Colleges, Congregational. In the same sense the religion of the College of the Holy Cross is Catholic. It is inevitable that the college have the religion of some one denomination, or that it have no religion at all. The thing is so, and cannot be helped. Experience proves, that, let the law and let profession say what they may, the religion of some one denomination is the religion of the college, if not a godless college. Between the religion of different denominations the legislature has no authority to discriminate, and to say what religion may and what may not be the religion of this or that college. Consequently, whatever be the particular religion of the college, it can be no valid reason for granting or refusing to grant it a charter. If the college claims, not only its religion, but the right to admit only such as will conform to it, that may be a good reason for not chartering it as a college to be supported at the public charge, but it is no reason at all for refusing to charter it as a college to be supported by the private funds of the denomination under whose influence it is established.

We have here answered all the objections which were urged against granting the prayer of the petitioners, and have shown, that, according to the uniform policy of the Commonwealth, it should have been granted. We have no doubt that the reason why it was not granted was simply because, the case having been misrepresented to the House in the first instance, many members were unable to seize its real character and actual bearings. The bill, however, received a generous support, and, although it failed to secure the vote of the majority, it secured the weight of the talent and respectability of the House, whether of one political party or another. The vote itself we regard as amply sufficient to refute the charge of bigotry so often brought against this Commonwealth by those who are ignorant of her character, as well as the charge set up abroad that the bill was lost in consequence of hostility to Catholics. For ourselves, we repudiate every insinuation of the sort. That the majority of the people have strong feelings against the Catholic religion, nobody doubts ; but, at the same time, we doubt just as little the honest intention of the great body of our people to treat their Catholic fellow-citizens as their equals before the law, and to administer the government fairly, and without undue bias towards one religious denomination or another. The result, which we regret chiefly for the honor of our State, whose fair fame and unsullied honor are as dear to us as the apple of our eye, we believe to have been due solely to a temporary misapprehension of the question on which the House was called to act ; and, having now cleared up the misapprehension and placed it before the public in its simplicity and in its real character, we leave it without the least misgiving as to the action of a future legislature.