Extract from the Judgment of the Supreme Court of Pennsylvania, in the Case of Updegraph v. The Commonwealth. Christianity, general Christianity, is, and always has been, a part of the common law of Pennsylvania; Christianity, without the spiritual artillery of European countries; for this Christianity was one of the considerations of the royal charter, and the very basis of its great founder, William Penn; not Christianity founded on any particular religious tenets; not Christianity with an established church, and tithes, and spiritual courts; but Christianity with liberty of conscience to all men. William Penn and Lord Baltimore were the first legislators who passed laws in favor of liberty of conscience; for before that period the principle of liberty of conscience appeared in the laws of no people, the axiom of no government, the institutes of no society, and scarcely in the temper of any man. Even the Reformers were as furious against contumacious errors, as they were loud in asserting the liberty of conscience. And to the wilds of America, peopled by a stock cut off by persecution from a Christian society, does Christianity owe true freedom of religious opinion and religious worship. . . . . ..... From the time of Bracton, Christianity has been received as a part of the common law of England. I will not go back to remote periods, but state a series of prominent decisions, in which the doctrine is to be found...... 66 In the case of the King v. Woolaston, (2 Stra., 844; Fitzg., 64; Raymond, 162,) the defendant had been convicted of publishing five libels, ridiculing the miracles of Jesus Christ, his life and conversation, and it was moved in arrest of judgment, that this offence was not punishable in the temporal courts; but the court said they would not suffer it to be debated whether to write against Christianity generally was not an offence of temporal cognizance." It was further contended, that it was merely to show that those miracles were not to be taken in a literal, but allegorical sense, and therefore the book could not be aimed at Christianity in general, but merely attacking one proof of the Divine mission. But the court said the main design of the book, though professing to establish Christianity upon a true bottom, considers the narrations of Scripture as explanative and prophetical, yet that these professions could not be credited, and the rule is, allegatio contra factum non est admittendum. In that case the court laid great stress on the term general, and did not intend to include disputes between learned men on particu lar and controverted points; and Lord Chief Justice Raymond (Fitzg., 66) said: "I would have it taken notice of, that we do not meddle with the difference of opinion, and that we interfere only where the root of Christianity is struck at." In the justly admired speech of Lord Mansfield, in a case which made much noise at the time (Evens v. Chamberlain of London, Furneaux's Letters to Sir W. Blackstone, App. to Black. Com., and 2 Burn's Eccles. Law, p. 95), conscience, he observed, is not controllable by human laws, nor amenable to human tribunals; persecution, or attempts to force conscience, will never produce conviction, and are only calculated to make hypocrites or martyrs. There never was a single instance, from the Saxon times down to our own, in which a man was punished for erroneous opinions. For atheism, blasphemy, and reviling the Christian religion, there have been instances of prosecution at the common law; but bare non-conformity is no sin by the common law, and all pains and penalties for non-conformity to the established rites and modes are repealed by the acts of toleration, and Dissenters exempted from ecclesiastical censures. What bloodshed and confusion have been occasioned, from the reign of Henry the Fourth, when the first penal statutes were enacted, down to the Revolution, by laws made to force conscience! There is certainly nothing more unreasonable, nor inconsistent with the rights of human nature, more contrary to the spirit and precepts of the Christian religion, more iniquitous and unjust, more impolitic, than persecution against natural religion, revealed religion, and sound policy. The great, and wise, and learned judge observes: "The true principles of natural religion are part of the common law ; the essential principles of revealed religion are part of the common law; so that a person vilifying, subverting, or ridiculing them may be prosecuted at common law; but temporal punishments ought not to be inflicted for mere opinions." Long before this, much suffering, and a mind of strong and liberal cast, had taught this sound doctrine and this Christian precept to William Penn. The charter of Charles the Second recites, that "Whereas our trusty and beloved William Penn, out of a commendable desire to enlarge our English empire, as also to reduce the savages, by gentle and just measures, to the love of civil society and the Christian religion, hath humbly besought our leave to translate a colony," &c. The first legislative act in the colony was the recognition of the Christian religion and establishment of liberty of conscience. Before this, in 1616, Lord Baltimore passed a law in Maryland in favor of religious freedom; and it is a memorable fact, that of the first legislators who established religious freedom one was a Roman Catholic and the other a Friend. It is called the great law, of the body of laws in the Province of Pennsylvania, passed at an assembly at Chester, the 7th of the 12th month, December. After the following preamble and declaration, viz.: "Whereas the glory of Almighty God and the good of mankind is the reason and end of government, and therefore govern. ment in itself is a venerable ordinance of God, and forasmuch as it is principally desired and intended by the proprietary and Governor and the freemen of the Province of Pennsylvania, and territories thereunto belonging, to make and establish such laws as shall best preserve true Christian and civil liberty, in opposition to all unchristian, licentious, and unjust practices, whereby God may have his due, Caesar his due, and the people their due, from tyranny and oppression on the one side, and insolency and licentiousness on the other, so that the best and firmest foundation may be laid for the present and future happiness both of the Governor and people of this Province and territories aforesaid, and their posterity. (Then follow enactments against profanity, blasphemy, and violation of the Lord's day.) . . . . ..... Amidst the concurrent testimony of political and philosophical writers among the Pagans, in the most absolute state of democratic freedom, the sentiments of Plutarch on this subject are too remarkable to be omitted. After reciting that the first and greatest care of the legis lators of Rome, Athens, Lacedæmon, and Greece in general, was, by instituting solemn supplications and forms of oaths, to inspire them with a sense of the favor or displeasure of Heaven, that learned historian declares, that we have met with towns unfortified, illiterate, and without the conveniences of habitations, but a people wholly without religion no traveller hath yet seen; and a city might as well be erected in the air, as a state be made to unite where no divine worship is attended. Religion he terms the cement of civil union and the essential support of legislation. No free government now exists in the world, unless where Christianity is acknowledged and is the religion of the country. So far from Christianity, as the counsel contends, being part of the machinery necessary to despotism, the reverse is the fact. Christianity is part of the common law of this State. It is not proclaimed by the commanding voice of any human superior, but expressed in the calm and mild accents of customary law. Its foundations are broad, and strong, and deep; they are laid in the authority, the interest, the affections of the people. Waiving all questions of hereafter, it is the purest system of morality, the firmest auxiliary, and only stable support, of all human laws. It is impossible to administer the laws without taking the religion which the defendant in error has scoffed at, that Scripture which he has reviled, as their basis. To lay aside these is at least to weaken the confidence in human veracity so essential to the purposes of society, and without which no question of property could be decided and no criminal brought to justice; an oath in the common form on a discredited book would be a most idle ceremony. THE PROVIDENCE RAILROAD COMPANY AGAINST THE CITY OF BOSTON.* ** THIS case was a bill in equity filed by the Boston and Providence Railroad Company against the City of Boston, praying the court to enjoin the city from making sale of a strip of land adjoining the land northerly on which the complainants' dépôt and passenger station, and other buildings, had been erected. The city officers advertised this strip of land, with other lots, for sale at public auction. The railroad company claimed to be entitled to the use of said strip of land, as a public street or highway, and contended that it had either been laid out as a street by the proper authorities of the town, in 1794, or was such by dedication at some period subsequent. The city of Boston denied both these propositions, and maintained that the land in question was not subject to the encumbrance claimed to have been impressed on it, and was free to be sold or disposed of at the pleasure of the city. The court ruled that the premises had been appropriated to the purposes of a street, and could not be sold without a violation of the rights of the complainants. The following argument was delivered by Mr. Webster, as counsel for the city of Boston. MAY IT PLEASE YOUR HONORS: There are two or three points which, in the multitude of questions to be considered in this case, I shall leave where the counsel for the complainants has placed them, without further discussion. One of these is that which arises upon the alleged encroachment of the railroad upon the land in question, An Argument before the Supreme Court of Massachusetts, sitting at Boston as a Court of Equity, on the 3d of April, 1844. Of the very numerous arguments of Mr. Webster, in the ordinary practice of the profession, on questions of local interest, not involving political and constitutional principles, few have been reported, nor if reported would it have been expedient to introduce them into a collection of this kind. It has been deemed proper to make an exception in the present case, for the sake of presenting a single specimen of Mr. Webster's mode of arguing causes of this kind. whether that be a street or land belonging to the city, by which encroachment it is averred by the city that the northern line of the railroad property is pushed farther north. This is a matter of detail, depending upon an examination of evidence, and I leave it to the judgment of the court without dis cussion. Another question is that respecting the averment that the land in controversy is a part of the Common. This is also to be ascertained by an examination of evidence, by the original deeds and plans describing the Common, and by the votes and proceedings of the town, which have been fully laid before you. But I take occasion to say, as that is a question which has caused some interest and excitement, that, in my opinion, this land is not, and never was, a part of the Common. If this street, or land, or whatever it may be, has become and now is a public highway, it must have become so in one of three ways, and to these points I particularly call your honors' attention. 1st. It must either have become a highway by having been regularly laid out according to usage and law; or 2d. By dedication as such by those having the power to dedicate it, and acceptance and adoption so far as they are required; or 3d. As a highway by long user, without the existence of proof of any original laying out, or dedication. It is not pretended by any one that the land in question is a highway, upon the last of these grounds. I shall therefore confine myself to the consideration of the other two questions; namely, Was there ever a formal and regular laying out of a street here? or was there ever a regular and sufficient dedication and acceptance? The general history of this strip of land, so far as this controversy is concerned, is well known, and the facts are all fully, narrated and exhibited in the evidence which has been laid before you. In the year 1794, there existed in the town of Boston six ropewalks, all in the central part of the town, on Atkinson and Pearl Streets; but they were all burnt down in July of that year, much other valuable property being destroyed by the same fire. It immediately became an object of public interest to take measures to transfer the site of these ropewalks, and to |