Report of the trial of McLaurin F. Cooke, submaster of the Eliot School, of the City of Boston, for an assault and battery upon Thomas J. Wall, a pupil of that school : with the arguments of counsel, and the opinion of the court reported in full ; carefully revised and corrected


REPORT OF THE TRIAL

MCLAURIN F. COOKE,
SUB-MASTER OF THE ELIOT SCHOOL, OE THE CITY OF BOSTON.

FOR

i MOLT 11 BATTERY UPON THOMAS J. WALL,

A PUPIL OP THAT SCHOOL.

WITH

THE ARGUMENTS OP COUNSEL, AND THE OPINION
OF THE COURT REPORTED IN PULL.

CAREFULLY REVISED AND CORRECTED.

BOSTON:
A. M. LAWRENCE & CO., DAILY LEDGER OFFICE,

18 STATE STREET.



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TRIAL OF M'T.AURIN F. COOKE,

A TEACHER IN THE ELIOT SCHOOL, OF THE CITY OF BOSTON, FOR

AN ASSAULT AND BATTERY COMMITTED UPON THOMAS

J. WALL, A PUPIL OF THE SCHOOL.

Trial in the Police Court, before Maine, J.

Sidney Webster and Wilder Dwight, Esquires, for the complainant.

H. F. Durant, Esquire, for the defendant.

Thursday, March 17th.

The case was called, and the complaint read, and the defendant pleaded
not guilty. After some discussion, the trial was postponed, on motion of
the defendant, until Friday, March 18th, at 12 o’clock, when it was again
taken up.

Wilder Dwight, for the complainant, stated that he did not propose to
make any formal opening statement, but preferred to present the case to
the Court in the simple narrative by the boy, Thomas J. Wall, upon whom
the assault was committed. Hereafter, if it became necessary, he should
ask leave to discuss the questions of law which might arise.

Thomas J. Wall was then called, and examined by Mr. Dwight, and
testified as follows:— I am ten years old; am in the Eliot School, in the class
of Miss Shepard. Monday, March 7, I was called upon to repeat the Ten
Commandments, but refused, saying that my father would not allow me to
say them

;
the teacher told me that my father had nothing to do with the

school, and that I must say them ; I said I did not know them. She kept
me after school, and said if I did not say them, she would take me to Mr.
Cooke. After school I was kept about a quarter of an hour, and still refus-
ing, I was taken to Mr. Mason, who was told of my refusal. Mr. Mason
asked why I would not say them ; I said my father would not let me. Mr.
Mason said, “ What has your father to do with the school ? ” I was then
sent to a seat, and asked if I had a book containing the Ten Commandments
in my way

;
I said I had, and would bring it in the afternoon ; Miss Shep-

ard said there was not much difference. Miss Shepard then told Mr. Mason
that my father was willing to have me discharged

;
Mr. Mason then asked me

if it was true, and I said yes ; he then told me that I might be discharged
until he saw my father and the committee

;
took my books then and went

home; returned to the school last Wednesday week, by orders from my
father; he told me that he had agreed with Mr. Mason that I might say the
Commandments in my own way; after school on that day, I was asked by

(
3

)



4 TRIAL OF MCLAUIIIN F. COOKE.

Miss Shepard to say them, as they were precisely like those read to my
father by Mr. Mason ; she then said, “ Go to your seat and recite one, and
that’s all I’ll ask of you.” I did so, and she then asked me if it hurt me.
She afterwards told me to take my spelling-book and study the Command-
ments, to be ready on the next Monday morning. Last Monday morning all
the boys below me who were Catholics, refused to say them

; there were
only two that said them. Miss Shepard skipped by me

;
then she said, I did

not think you were there, and asked me if I had studied them, and I told
her that my father had agreed with Mr. Mason that I should not say them

;

then she said that she would whip every boy down from me who would not
say them. She did whip every one down to Rohan, except me

;
Rohan re-

fused to hold out his hand, and she threatened to send him to Mr. Cooke

;

lie then ran out of school, and she told Mr. Cooke about it. A little while
after that a man came in and asked how many boys had refused to say the
Commandments.
The defence objected to the admission of any thing this man said or did,
Mr. Dwight stated that the prosecution considered it material, in the same

view as the other facts already put in, as one of the circumstances sur-
rounding and explaining the assault. This man, whoever he was, had
come into the school and addressed the scholars about the Ten Command-
ments. He thought the testimony material and admissible.

Mr. Durant said he cared not what other parties who came into the
school had said. The defence had not objected to what Miss Shepard may
have said, but what outsiders who came in may have said, he deemed not
pertinent.

The Court ruled out the question, as sufficient foundation for such a line
of inquiry had not yet been laid, and as the connection of the man with the
school had not been established.

The witness resumed'. The teacher told the committee man that I was
the foundation of the whole trouble

;
Mr. Cooke soon after came into the

room
;
she delivered me over to Mr. Cooke, who placed me upon the plat-

form in his room
;

it was recess time then. After the boys came in, he said
to the school that “ here was a boy who would not repeat the Ten Com-
mandments

;
” he said he would whip me until I consented, for he had noth-

ing else to do the whole forenoon
;
he had before this asked me to repeat

them, and I told him then that I would do it if my father was willing. He
then commenced whipping me with a rattan, stopping at times of about a
minute in length, and asking me if I would say them ; I replied that I would
if my father allowed me to

;
he whipped me first on one hand and then on

the other, for thirty minutes
;
when he stopped whipping me I said the

Commandments in consequence of what “ that man ” told me. After he got
through, he (Mr. Cooke) took me down stairs and put my hands in water;
my hands were much swollen

;
he sent me back to my seat in Miss Shep-

ard’s room, but soon after came after me and again put my hands in cold
water. My father had told me that “ for my life not to say the Ten Com-
mandments.” I remained during the rest of Monday morning in Miss
Shepard’s room

;
have not been back to the school since ; when I told

Mr. Cooke 1 would repeat the Commandments if my father was willing,
he said “ that wouldn’t do

;

” this wras repeated more than once.
Mr. Dwight then asked the witness whether, when he wrent to school that

morning, he understood from his father that he wr as to repeat the Command-
ments, if called on, according to his own version, and not that in the spell-
ing-book ?



TRIAL OF MCLAUUIN F. COOKE. O

Mr. Durant objected to leading questions to a boy of but ten years. He
objected to asking the boy his opinion, or his understanding. He should
be asked simply as to what was said or done.

Mr. Dwight replied that he had not intended to lead the boy in the least.
The boy had told, according to his best recollection, the same story as he
had told him in his (the counsel’s) office, and this inquiry was material as
showing whether the youth was acting conscientiously or not. It was not

a matter that could be kept in the dark, and the action of this child was no

doubt, to some extent, governed by instructions. He desired to show that
the father told the boy to recite the Commandments according to the
Catholic version, if recite them he must, and that the boy so understood
him.

The Court ruled that if the boy had not stated all his father told him, or
all the answers given by him to his teacher, then he should give them in
full, but that the inquiry could go no farther.

The witness resumed. My father told me not to repeat the Protestant
Commandments

;
he told me not to be a coward to my religion, and not to

say them.

Cross-examined by Mr. Durant. Have been at the Eliot School for
seven years ; have been in Miss Shepard’s room seven months ; the Com-
mandments have been recited every Monday morning by the class, but I
never recited them ; I never recited them in the other classes I was in ; I
never joined in the Lord’s Prayer or “Old Hundred;” both of which were
given every day. McCann sat on the other side of me

;
he used to sing

and recite sometimes, but never did it as often as now ; some of the
Catholics used to say the Commandments before last Monday, but all
didn’t. The priest had told the boys not to recite the Commandments, but
if they must do so to recite their own. I said I wouldn’t do it before I
went in Monday morning, and the other boys said they wouldn’t. Father
Wiget told us not to ; he told us on Sunday, in the basement of St. Mary’s
Church

;
there were nine hundred children present

;
Father Wiget needn’t

have told me
,
for my father had told me since I was four years old to say

only my own Commandments. Father Wiget said if we repeated the
Protestant Commandments he would read our names to the congregation.
I saw Father Wiget last night at his room

;
he had promised me a medal,

and I went there for it
;
he gave it to me for being a good boy ; he prom-

ised it a long while ago, about three weeks ago
;

it was a medal dipped in
silver

;
it was in the basement of the Endicott Street Church he gave it to

me. I had asked him for it
;
nothing was said then about the Ten Com-

mandments
;
he first spoke to me about the Ten Commandments last Sun-

day
;

all he said to me last night was, “ Go home and take your supper,”
that was all he said. I was there only three minutes, and he was writing.
During the seven months I was in Miss Shepard’s room I never repeated
the Ten Commandments. I had learned the first half of them in my spell-
ing-book

; Miss Shepard told me to learn them ; Mr. Mason asked me why
I wouldn’t say them

;
I told him I would say them if my father was will-

ing
;

didn’t tell Miss Shepard or Mr. Mason that I didn’t know them.
Mr. Mason dismissed me; on Wednesday I went back with my father

;

Mr. Mason didn’t read the first Commandment, and ask my father if he
saw any thing objectionable in it

;
Mr. Mason said if I didn’t obey the

rules my father had told him to punish me
;
notwithstanding this, I refused

to obey
;
Mr. Cooke was thirty minutes whipping me

;
he went out twice

during that time, and stopped twice to speak to me.



6 TRIAL OF M^LAURIN F. COOKE.

[A rattan was here shown to the witness, which he said looked like the
one he was whipped with.]

I had been whipped a good many times before, and had my hands put
in water before this

; other boys had also. I didn’t like to have my hands
put in water, because I wanted them swollen so I could show them to the
doctor ; nobody told me this. I went to Dr. Salter Monday afternoon ;
Mr. Murphy and Mr. Mager “ fetched it to the doctor.” One boy was
stamping his feet while the Protestant boys were saying the Command-
ments ; he was a Catholic boy ; other boys were making a noise as if study-
ing. I made no noise when they were saying the Lord’s Prayer

;
my father

told me not to say the Protestant Commandments last Monday week
; the

first time a priest ever told me, was last Sunday week.
Direct resumed.—Before Monday, all the boys were called upon to repeat

the Commandments together, not separately
;
some would say them, and

some would not. The medal the priest gave me had been blessed ; it was
customary for the priest to give medals to the boys

;
I asked him for it

; we
wear the medals. Mr. Cooke only puts my hands in water when he has
whipped me very severely

;
when he was whipping me I thought I should

like to show my hands to the doctor.
The Court then, at quarter to two o’clock, took a recess of twenty

minutes.

The Court came in at twenty minutes past two.
James O'Hara called and testified. I attend the Eliot School. I saw

the boy Wall brought into Mr. Cooke’s rooir* on Wednesday forenoon last;
after recess Mr. Cooke said, Here is a boy who iw refused to say the Ten
Commandments, and I am going to whip him till he doe*., :f it takes all the
morning; he then began to whip him on both hands, asking v;m at the
same time if he would recite them. Wall replied that he woula *»is
father was willing

;
Cooke said his father might rule him at home, but he

should rule him at school
;
he continued to whip him for about thirty

minutes
;
he went out into the entry once while doing it. Mr. Mason came

in and said he could take his oath that his father had ordered that the boy
should recite or be whipped.

Cross-examined. I have attended the school two years
;
I have never

recited the Commandments
;
I have recited the Lord’s Prayer. I refused

to join in recitation of the Lord’s Prayer last Monday morning, because I
was instructed to do so by my parents ; we all refused to recite the Lord’s
Prayer, because our parents and the priest told us to ; the priest instructed

us to say nothing out of the Protestant Bible. Sunday last was the first
time I had ever been instructed not to say the Lord’s Prayer and the
Commandments

;
I saw none of the scholars tear the Commandments out

of their spelling-books. I have attended school seven years ; I have,

occasionally, during that time, recited the Lord’s Prayer. The boys have
often had their hands dipped in water after being whipped severely ; I

can’t say how many boys have had their hands dipped in water ; I have
frequently seen the bad boys, and some of the good ones, also.

Dr. Richard H. Salter. I saw the boy Wall’s hands on Monday
afternoon last

;
both hands had a swollen, sodden appearance inside, and

the skin was slightly broken in two or three places ; there were also small
livid spots

;
the boy said the hands were painful. I ordered a soothing

dressing, and the next day the swelling had entirely disappeared ; I did

not think the injuries very severe ; the hands indicated that there had been



TRIAL OF MCLAURIN F. COOKE. 7

a smart application of the stick, but of what degree of severity I cannot

gay. The use of cold wate - immediately after the whipping would relieve

and prevent inflammation.

Cross-examined. The livid marks on the hands were not serious or
permanent

;
I told him to rub his hands in sweet oil and do them up in

cotton
;
I considered such a prescription sufficient. In a child of ten years

old the skin is tender, and more tender on the palm than elsewhere.

Thomas McLaughlin. I am thirteen years old ; I was in Mr. Cooke’s
room on Monday forenoon last ; after recess I heard Mr. Cooke say that the

boy Wall had refused to say the Commandments, and he was going to

whip him until he would. He continued to whip him twenty or twenty-five
minutes ; he would occasionally stop and ask him if he would recite them,

and the boy said he would if his father was willing.

Cross-examined. Mr. Cooke asked the boy four or five times while

whipping him if he would recite the Commandments ; I did not say the
Lord’s Prayer on Monday morning, because my parents told me not to ;
the priest told the boys on Sunday last not to say the Commandments. I

was forbidden by my parents to sing any hymns ; I Was not instructed by
the priest to refuse to sing the hymns. I knew of sixteen boys in Mr.
Cooke’s room who refused to say the Lord’s Prayer.

The complainant here rested his case.

Mr. Durant said that he had not as yet heard any statement of the
legal ground upon which the complainant proposed to put his case, and that

he should, therefore, be compelled to go on with the defence in the dark.

Mr. Dwight expressed his willingness to open fully the legal princi-
ples involved in the case, and thereupon proceeded substantially as fol-

lows : —

OPENING FOR THE COMPLAINANT BY MR. DWIGHT.

This is a case of an assault and battery upon a pupil, by a teacher in one
of our public schools, as a punishment for the refusal by the pupil, who is
a Roman Catholic, to repeat the Ten Commandments according to the ver-
sion in the Common English or Protestant Bible. There are two legal
grounds on which the assault and whipping complained of must be held to

be unlawful and criminal, without reference to the question whether the
punishment, if justifiable, was not excessive.

These grounds are indicated in the following questions : —
First, under our constitution and laws, can a Catholic scholar in school be

compelled to repeat as the commandments of God, that is, as God’s law, the
Protestant version of that law, or has he not a right under the constitution,

to be protected against a command to repeat that law in a different form
from that prescribed by his faith, and commanded by his parent and
religious teacher ? Must he utter words which his religious faith denies ?

Second, waiving the larger question of religious liberty, —ought an infant
of ten years of age, in a public school, who refuses to obey a command of
the teacher on the ground that his father forbids him to do so, and who gives
that reason, to be whipped into obedience. Is not the proper remedy ex-
pulsion? And is the punishment inflicted by the teacher reasonable

,
under

the law of this Commonwealth, and the rules of the School Committee for
the Boston Public Schools ? Is not such punishment cruel and without
right or justification ?



8 TRIAL OF MCLAURIN F. COOKE.

Before asking your Honor’s attention to these two questions, permit me
to refer to the recent case of the Commonwealth v. Randall, 4 Gray, 36,
for the law according to which all punishment of a pupil by a schoolmaster
must be regulated. The doctrine of that case may be stated thus: A
schoolmaster is criminally liable for punishing his pupil not only when he
acts malo animo, from vindictive feeling, passion, or ill-will, or inflicts
more punishment than is necessary to secure obedience

;
but, in inflicting

corporal punishment, a teacher must exercise reasonable judgment and dis-
cretion, and be governed as to the mode and severity of the punishment by
the nature of the offence, the age, size, and apparent powers of endurance
of the pupil. The court say “ the unreasonable and excessive use of force
on the person of another being proved, the wrongful intent is a necessary
and legitimate conclusion in all cases where the act was designedly com-
mitted.”

In the present case, therefore, we need not prove any actual malice and
ill-will. It will be enough to show an unreasonable and indiscreet
whipping.

The rule of the School Committee upon this subject contains a very
sound construction of the law*

“Regulations, Sect. 13. All instructors shall aim at such discipline in their schools
as would be exercised by a kind, judicious parent in his family, and shall avoid cor-
poral punishment in all cases where good order can be preserved by milder measures.”

With this general statement of the law, I desire first to address myself
to the considerations which show that in the present case the defendant had
no right to inflict any punishment at all. And whatever dignity or im-
portance the case may lack in other aspects of it, it yields to no question
which a court can be called to consider in this view, which I understand to
have been the intimation of your Honor when you spoke of the case as
one of great public importance. Certainly that is a question of the largest

public and political importance, which concerns the relation of a people to
their government and their religion. It is my purpose to confine myself
closely to a discussion of the law in its precise application to the case be-

fore the court
;

for the general subject of religious liberty and freedom of
conscience, is one that has such wide relations, and is, in some respects, so
full of difficulty, that I desire to avoid, as far as I can* a general discus-

sion of the use of the Bible in our public schools, and of the differences’

between Catholics and Protestants. Such a discussion seems to be out of
place, and calculated only to divert us from the merits of the case, to
kindle our prejudices, and mislead our judgments.
Our constitution, in that part of it called “ A Declaration of the Rights

of the Inhabitants of the Commonwealth of Massachusetts,” after that large
assertion of freedom and equality, and claim of “ certain natural, essential,

and unalienable rights,” whose authority is so frequently invoked, declares
in Art. II: —

“ It is the right, as well as the duty, of all men in society, publicly, and at stated
seasons, to worship the Supreme Being, the great Creator and Preserver of the uni-
verse. And no subject shall be hurt, molested, or restrained, in his person, liberty,
or estate, for worshipping God in the manner and season most agreeable to the dic-
tates of his own conscience

;
or for his religious profession or sentiments, provided

he doth not disturb the public peace, or obstruct others in their religious worship.”

The next article, as it stood originally, went on to recite, in substance,
that, “ As the happiness of a people, and the good order and preservation
of civil government, essentially depend upon piety, religion, and morality,”



TRIAL OF MCLAURIN F. COOKE. 9

therefore the people of the commonwealth have the right to invest their

legislature with power to authorize and require the several towns, parishes,

&c., to make provision for the public worship of God, and for the support

and maintenance of public Protestant teachers of piety, religion, and mo-

rality, in all cases where such provision shall not be made voluntarily. Also

to invest their legislature with authority to enjoin upon all the subjects an

attendance upon the instructions of the public teachers aforesaid, at stated

times and seasons, if there be any on whose instructions they can conscien-

tiously and conveniently attend. The article concludes : —
“And every denomination of Christians demeaning themselves peaceably and as

good subjects of the Commonwealth, shall be equally under the protection of the law

;

and no subordination of any one sect or denomination to another, shall ever be estab-
lished by law.”

But an amendment, adopted by the legislatures of the political years

1832 and 1833, and approved and ratified by the people in the latter year,

was substituted for this article. It is Art. XI. of the Amendments to the
Constitution, and' the commissioners who revised our statutes in 1835,
describe it comprehensively by the title, “Religious Freedom established.”

The Amendment, after the same general recital, proceeds : “ Therefore, the
several religious societies of this Commonwealth, whether corporate or

unincorporate, at any meeting legally warned and holden for that purpose,

shall ever have the right to elect their pastors or religious teachers,”

&c. And in the last clause above quoted, the words “ all religious sects
and denominations ” are substituted for “ every denomination of Christians,”

and the word “citizen” replaces “subject.”
Now this omission of the word Protestant is a very significant one. That

was the only word in the constitution which could justify the assertion that

Protestant Christianity is the state religion. Its omission is a refutation of

what seem to be the tacit assumptions of the defendant.
It is under this constitution that our common school system was founded,

and now exists. Let us attend, very briefly, to the provisions of the law
regulating the system of instruction in those schools.

The 23d chapter of the Revised Statutes, entitled “ Of the Public
Schools,” in its first section contains an enumeration of the branches to
Jbe taught therein, and in sect. 7, declares the general duty of the teachers

of youth, in the following impressive language : —
“ It shall be the duty of the president, professors, and tutors of the University at

Cambridge, and of the several colleges, and of all preceptors and teachers of acade-
mies, and all other instructors of youth, to exert their best endeavors to impress on
the minds of children and youth, committed to their care and instruction, the princi-
ples of piety, justice, and a sacred regard to truth, love to their country, humanity*
and universal benevolence, sobriety, industry, and frugality, chastity, moderation*
and temperance, and those other virtues which are the ornament of human society*
and the basis upon which a republican constitution is founded

;
and it shall be the

duty of such instructors to endeavor to lead their pupils, as their ages and capacities
will admit, into a clear understanding of the tendency of the abovementioned virtues
to preserve and perfect a republican constitution, and secure the blessings of liberty,
as well as to promote their future happiness, and also to point out to them the evil
tendency of the opposite vices.”

In other words the law says : There shall be taught in our schools all
the virtues which form “ the basis upon which a republican constitution is
founded

;
” and the pupils shall further be expressly instructed in the ten-

dency of those virtues to secure “ the blessings of liberty,” &c. Nothing
can exceed the clearness with which the whole spirit and purpose of public



10 TRIAL OP M°LAURIN F. COOKE.

instruction is pointed out. If any thing were wanting, the significant
silence of this statute upon the subject of religious doctrine and faith would
be enough.

But lest this large enumeration should mislead the enthusiast or the
bigot, we have the express provision in sect. 23 of the same chapter, as a
part of the directions concerning school books, that

“The school committee shall never direct to be purchased or used, in any of the
town schools, any school books which are calculated to favor the tenets of any par-
ticular sect of Christians.”

And more recently the statute of 1855, ch. 256, provides that
“ In determining the qualification of scholars to be admitted into any public

school, or any district school in this commonwealth, no distinction shall be made on
account of the race, color, or religious opinions of the applicant or scholar.” •

And gives a right of action for damages to the child excluded for either of
these reasons.

Nor is this all. The eighteenth article of amendment to the constitution,
adopted and ratified in the same year (1855), gives a higher and more
positive sanction to the principle which guided the legislature in framing
these laws.

That amendment is as follows : —
“ All moneys raised by taxation in the towns or cities for the support of public

schools, and all moneys which may be appropriated by the state for the support of
common schools, shall be applied to and expended for no other schools than those
which are conducted according to law, under the order and superintendence of the
authorities of the town or city in which the money is to be expended

;
and such

money shall never be appropriated to any religious sect, for the maintenance, exclu-
sively, of its own schools.”

The enumeration of the branches to be taught in the public schools in
the still more recent statutes of 1857, ch. 206, and of 1858, ch. 5, are in
harmony with the provisions of law. The only other law which seems
material in this connection is the statute of 1855, ch. 410, which provides

that “ The school committee of each town and city in this commonwealth
shall require the daily reading of some portion of the Bible in the common
English version.”

The construction of this law in the Regulations of the School Committee*
of Boston, sect. 5, is as follows : —

“ The morning exercises of all the schools shall commence with reading a portion
of Scripture, in each room, by the teacher.”

The rule goes on : —
“ And the Board recommend that the reading be followed with the Lord’s Prayer,

repeated by the teacher alone, or chanted by the teacher and children in concert,
and that the afternoon session close with appropriate exercises, and also that the
pupils learn the Ten Commandments, and repeat them onee a week.”

It is enough for the purpose of this argument to say that neither the law

itself nor this rule under it, up to the point where recommendation and

suggestion commence, were violated by the complainant, and they are
therefore not here drawn in question. That the law goes quite as far

as the constitution will allow, I hope to show more fully in another con-
nection.

But I desire first to refer to the provisions of law compelling, under
penalties of fine and imprisonment, the attendance at school of all the chil-

dren of this commonwealth during a portion of the year.



TRIAL OF MCLAURIN F. COOKE. II

The statute of 1852, ch. 240, provides —
“ Sect. 1. Every person who shall have any child under his control, between the

ages of eight and fourteen years, shall send such child to some public school within
the town or city in which he resides, during at least twelve weeks, if the public
schools within such town or city shall be so long kept, in each and every year during
which such child shall be under his control — six weeks of which shall be con-
secutive.”

The next two sections provide for penalties for violation of this law, to
be recovered by complaint or indictment ; and the last section provides

what shall excuse a non-compliance with the law. These excuses are
attendance at school elsewhere, or being otherwise furnished with means of
education, or a bodily or mental condition such as to prevent attendance at

school, or poverty.

Neither of these would relieve the Catholic, as such, from attendance at
the public schools.

But the penalties do not stop here. The statutes of 1850, ch. 294, and
of 1854, ch. 88, denounce severe penalties upon all truant children, and
provide that justices of the peace may on complaint sentence children
“ growing up in ignorance,” “ to be committed for not more than two years
to the House of Reformation, or to pay a fine, and in default thereof, to the
common jail.” In this state of the law we claim that this child and every
child is compelled to attend the public schools. Every citizen is also taxed
for their support, invests part of his earnings in them, and is bound to.

I am aware that I am discussing very familiar principles. But the
clearness and force with which these principles are declared and protected
would surprise any one who had not carefully attended to the subject, and
the examination is one which cannot be profitless or uninteresting. There
is another excuse for detaining your honor so long upon this matter — that
in every season of excitement we are apt to lose our hold upon the prin-
ciples which lie at the basis of our liberty. And there was never, perhaps,
a question more calculated to excite our prejudices than the present one.
I hope it is not improper or disrespectful to speak of prejudices. We all
have them. They become a part of ourselves. We can no more escape
their subtle influence than that of the atmosphere in which we live. But it
is at once our privilege and our duty in a court of justice to resist that

' influence
;
and I know of no aid in that effort like a recurrence to the

principles upon which the fabric of the government and the rights of the
people depend.

If I have succeeded in my purpose of developing the policy of this Com-
monwealth, as indicated in her frame of government and her laws, in regard
to religious liberty and public instruction, I can ask your honor to follow
me in the further steps of the argument with more confidence.
Our ancestors came here in pursuit of religious liberty, and they founded,

as the basis of a republican commonwealth, the noble system of free public
schools. They intended to secure and enjoy the full measure of both these
blessings. Need there be any conflict between them ? I think I trace
in our frame of government, and our legislation under it, a wise policy of
reconciliation and harmony. This policy is the best safeguard of our
liberty and intelligence. If this were the place to utter words of warning,
I would say, let no argument of prejudice, no impulse of passion, mislead us
into a departure from this policy. I recall your honor’s suggestion that
her common schools are the dearest interested Massachusetts. They are
so. Dear to the state, dearer to every citizen. It is to the public school that



12 TRIAL OF M^LAURIN F. COOKE.

every man, however poor, must look to give him a practical hold upon
that equality of* which we boast. We have no distinction of* class or priv-
ilege under the law. But there is an aristocracy of* education into which
every man may enter through the door of the common school. The state
gives him an education, and bids him win with it every success or emi-
nence. And it is this hope which fills him, and makes him a freeman.
It is this hope, too, which is the best safeguard of our liberties.

)
Will you

fetter this great and mutual privilege with a condition ? Will you say
education is free only to those who believe as we do, or who are willing to
my so ?

But I need ’not pursue this argument. The only question that can arise
upon this case must be, Is the enforcement by the teacher of the repetition
of the Protestant version of the Ten Commandments by a child whose reli-
gion denies the truth of that version, imposing a religious test ? If it is so,
the act is clearly unconstitutional.

I must here advert very briefly to what your honor must be familiar
with as a part of* the history of that Protestant faith which so many of us
love and cherish ; to the fact, namely, that some of the differences between
the version of the Ten Commandments used in our public schools and that
taught to Catholic children in their churches and homes are differences of
importance.

The difference of phraseology in the latter part of the first commandment
in the Douay Bible, which becomes the second commandment under the
division adopted in the common English version, is one upon which much
discussion has arisen. The substitution in the latter translation of “graven
image ” for graven thing, and of “ how down n for adore, is an argumen-
tative translation, aided by the separation of that injunction into a distinct

command, against the uniform belief and practice of Catholics, and against
one of their most cherished aids to devotion and worship. The difference
of division, too, may he considered as of a good deal of practical impor-
tance. Any division into ten distinct commands must he an arbitrary
one. The Protestant divides the first commandment into two; the Cath-
olic the last. And in both cases the division is defended by different
views of the nature of the sins prohibited. Now, this is only important
as showing that the distinctions are of a character to be insisted on by
Catholic parents and teachers.

I will not speak of the other differences of language. Let them appear
to be as slight or trivial as you please. I do not admit that the amount
of these differences is a proper topic of discussion. It cannot be denied

that there are such differences. Their significance or value is not to be

measured by the court. If the difference exist, its importance is for that

inner tribunal of faith, the conscience, which may be persuaded, but not
intimidated or compelled.

A boy or a man has the right, under the constitution, to repeat the Com-
mandments as he believes them

,
and no man in any position, or authority,

unless he is above the constitution, has right to direct him to modify a
phrase or correct an adjective.

The recommendation of the school committee forming a part of the rule
(so called) already quoted, suggests that the Ten Commandments be re-
peated once a week.

This repetition by the pupil of the Ten Commandments is made a part
of the religious exercises and devotional services of the school. The words
are not to be repeated merely as an exercise of the memory, an example



TRIAL OF M^LAURIN F. COOKE. n

of style, or rhetoric, or a gratification of literary taste, nor even as a code of

morality, but as a religious exercise. They have no significance if used for
any other purpose. This also appears clearly from the whole rule taken to-
gether, and from the connection in which the exercise of repetition occurs ;
and this is the important distinction between the present case and the case
of Donahoe v. Richards

,
38 Me. 256, which holds that to require read-

ing of the Bible in the public schools is not unconstitutional. Without

going into a careful examination of the constitution and laws of Maine, it

is enough in this connection to say, that the facts in that case raise the sim-

ple question of the use of the Bible as a reading' hook, and for no other

purpose. And the decision declaring such use constitutional, treats it as
a reading book of a particular version not prohibited by any express lan-
guage of the constitution, and a model of idiomatic English, which teaches
lessons of sublime morality, and expressly repudiates the idea that there

is
u any interference by way of instruction with the views of the scholars,

whether derived from parental or sacerdotal authority.”

And the argument of the learned counsel who argued that case contains
passages of great power, describing the u noblest monument of style, of
thought, of beauty, of sublimity, of moral teaching, of pathetic narrative,

the richest treasury of household words, of familiar phrases, of popular

illustrations and associations.” Upon all this he is eloquent. But he shrinks
with the quiek sensitiveness of a free, manly, and tolerant nature from the
suggestion that the yielding of any controverted question of doctrine, the
assent to the genuineness of any text or reading, any aet of worship or
effort of faith is, under any disguise, to be forced upon the pupil through
the use of the Bible in school. Our case is therefore distinguished from
the case of Donahoe v. Richards

,
as it is taken out of the operation of

st. 1855, eh. 410.

But it is here that the confusion will be attempted, as it has already been.
Here that our argument will be said to limp. When I brought the vol-
ume containing that ease into the court to-day, I could not help noticing
the expression of triumph with which the eminent counsel for the defend-
ant, whom I admire so much, borrowed it of me. But I brought it in, as
I remember once to have heard Mr. Webster say in the Supreme Court at
Washington of a large pile of books on the table before him, not u as am-
munition, but as a breastwork to stand behind

;

” not for purposes of offence,

but for those of defence. I do not invoke its authority, but I distinguish it

from the ease at bar, and the distinction is a clear one, and one which must
not be lost sight of. I will add, too, in passing, the action in that case was
brought for illegal expulsion

,
not for whipping*

Our argument then is, if a particular version is insisted on by the teacher
to be used by the child in expressing the child’s statement of what are the
words of God, or God’s law, and the ehild says that his religious teacher,
his parent, or his faith teach him another statement of that law as the true
one, neither teacher nor pupil has the right to force his belief on the other,
nor the expression of words which have no significance except as an
expression of faith, and which mean that to the child. In this matter both
are equal before the law, and in this controversy a blow by one is as unlaw-
ful as a blow by the other. And it is an outrage upon the religious senti-
ment of the people to say that the words may be repeated without assent

,

or that the passage may be learned like that from any other book. It is
not true. The associations are too sacred to be treated in that way. It is
a worse than Jesuitical subterfuge. This is the only escape from our



14 TRIAL OF MCLAURIN F. COOKE.

conclusion, and the attempt to escape thus is to outrage every religious and
manly sentiment. If those words are taught for any other purpose than
instruction in religious doctrine, or inspiring and strengthening Christian
faith, they had better not be taught at all.
And the statement is also absurd in the case of boys of the age of ten

years. At that time of life when the heart is too strong for the head,
when we say what we fee!, and feel what we say, when the faith has not
yet been questioned by the reason, and religion is a father’s teaching or a
mother’s love, the atmosphere and influence of a home, and faith itself a
compound of affection, obedience, and duty — to say to a child of this age,
‘‘Repeat, these words as the words of God, though your faith may disown
them; you are welcome to your mental reservations — to do this, if it
were possible, would be to corrupt his religion, his piety, and his life at
their source.

I submit, therefore, that the result of the whole argument is this : —
Under our law, you must not, under color of authority, as a teacher, and
while a boy is under such control, and there, under penalties, compel him by
force to repeat any declaration of religious opinion which his own religion
disowns, and which is a falsehood to him. For the right to do that to any
extent, however apparently trifling, is the right to whip the boy out of all
his religious belief, and to torture him into conformity with the dominant
sect of the day. The wrong is a radical one, and no infliction of it is
slight.

I may, perhaps, be allowed an illustration. It is only a few months
since half the civilized world was thrown into a state of excitement by the
conduct of the government of Rome in regard to the Mortara boy. Cab-
inets forgot their statesmanship and diplomacy in their violated sense of
justice, and our own government came near abandoning her wise and timid
policy of non-intervention. It was a controversy between the Jew and the
Catholic, upon which the Protestant might look with comparative impar-
tiality. But what was that case ? A child born in Italy of Jewish
parents came, perhaps by fraud or deception, within the operation of a
law requiring that he should be taken from the religious influences of his

home, and brought up and instructed by the government in the religion of
the state.

Our case, under the construction of Jaw against which I argue, would
be that of a young boy taken by authority, and under penalties of law,
from the religious faith and teachings of his parents, and not instructed

only, but driven and scourged into the faith of the popular majority of the

hour. If there is any difference between the two cases it is one of degree,

not of kind.

It remains only to consider, very briefly, the other aspect of the case.

The ground is a narrower one, but it equally sustains the position of the
complainant in the present case. It is this : When a pupil of ten years of
age, rightfully sent to a public school, states to his teacher that his parent,

his natural guide and teacher, or his minister or priest, his spiritual teacher,

forbids him to do a certain act, and at the same time states his readiness to
do it if they will assent, and is commanded by the teacher to obey him
notwithstanding such direction of the parent, then the young child is not to
be whipped.

Consider the effect upon the child of such a punishment for refusing

to disobey his father. Here is a bright and intelligent child, and I
will venture to say that there is in no sect or community within this Com-



TRIAL OF MCLAURIN F. COOKE, lb

monwealth a boy of his years of better natural capacity and intelligence.

And I may suggest that your honor has had an opportunity of knowing
this, for you have seen him stand for an hour without faltering under the
cross-examination of the learned counsel, which I take to be the last

analysis of human nature. He came out of it unscathed. To be sure he
fainted immediately after, but that was the tender body, and not the feeble
mind. Will you whip disobedience under this flimsy disguise into such a

boy ? One blow in such a cause is a blow too much. Several blows leaving
scars are outrageous cruelty and a criminal assault. It may be that expul-
sion from school is necessary, to protect the discipline and authority of the

teacher, but beating cannot be. The parent or priest is the offender, not
the boy. He may be persuaded or expelled, but not whipped, for he is in
no conscious fault

,
and the master knows it or is bound to do so.

As a reasonable man acting upon these facts, the teacher cannot justify
himself, and is guilty of a crime if he punish his scholar.

In conclusion, therefore, I submit—
1st. That the command and its enforcement were unconstitutional.
2d. That the whipping was unreasonable and criminal.
And there remains still another question upon the facts, which I do not

discuss, Whether it was not excessive ?

OPENING FOR THE DEFENCE.

Mr. Durant then opened the case for the defendant substantially as fol-
lows. He premised by saying that he could not but believe that every good
citizen must regret the folly that occasioned the bringing of a\?ase like this
before a court in Massachusetts. For years all classes had been living
under laws that allowed entire liberty of religious belief

;
for years have

the rules and requirements of our public schools been acquiesced in;
acquiesced in at the Eliot School, where a majority of the scholars are
Catholics, and without any complaint. But now the matter has assumed a
different aspect, and the learned counsel proceeded to narrate the history
of the case on trial. On Sunday last one man had the power— the bold-
ness — to place nine hundred children in a hostile position against the laws

;

to advise them to die rather than obey those requirements under which the
fullest liberty had been insured to them.
The religious issue that had been raised in this case by the complain-

ant’s counsel could not be avoided ; but he would have been pleased, had it
been chosen, to try the case to see if the defendant had failed in his duty
and committed a criminal act. But the graver question had been brought.
The whole — the precise case, is just this ; and the issue is a vital one

:

Shall the Holy Bible be used in our schools
,
or is it to be thrown aside

,
and

its pious teachings to pass unheard ? The question was not, Shall toleration
be allowed

;
but, plainly and exactly, Shall the Bible be used, or shall it not ?

It was not a question of toleration, but whether piety shall hereafter be
taught school children from the Bible. It is a demand to yield to tyranny
under a guise of toleration. It is not a toleration of Catholicism that is
desired, but that we shall not be allowed to use the Bible in our schools.
He did not propose to argue the constitutional questions raised by the
opposite counsel at this time, but in its appropriate place, when the evi-
dence for the defence was finished.

His client was an experienced, beloved, and valued teacher, bound to act



16 TRIAL OF MCLAURIN F. COOKE.

under the requisitions of the School Committee, and to follow the laws,
whatever the consequences might be. lie found in his directions a plain
command, that the Bible should be read every day, and a recommendation
that the Ten Commandments, the Lord’s Prayer, and some simple devo-
tional singing be also heard from botli teacher and scholars. These were
his instructions, and under them he acted. The bey in the case has stated
that for seven months he had never joined in the exercises.
He should show that this boy, who bad been so highly complimented by

the counsel for his aptness and intelligence, was utterly unworthy of belief.
He would show that the boy, when called upon by his teacher to repeat
the Commandments, stated that he did not know them, although before this
he had frequently, said them. At this time it was not known but this was
an exceptional case. The conspiracy to drive the Bible out of the school
was not then known. The boy was taken to the head teacher, when, his
obstinacy being apparent, he was told to leave school until his father could
be seen. His father called three times on the teacher, the Commandments
were read to him, and, with a degree of good sense, he told the teacher
that his boy should return, and requested that if he again refused obedi-
ence, to flog him severely. This was told once, and again on another day
repeated, by the parent to the teacher. Thus the matter stood until Mon-
day last, when we see that, in obedience to a dark and dangerous power,
an open rebellion broke out all over the school. Without any resort to
all the many sources of redress, if any wrong was done, the whole school
was in revolt, and the whole authority of the school was set at defiance.
At the opening services, a wild confusion and open revolt was seen in
every room, and the teachers had but one course to take — they must
either support the rules or they must bow down to the boys and the
revolt. This boy was seen to be the ringleader and head of the revolt,
and he was called forward. He refused obedience, and the master was
called upon. He took the boy, and had a right to punish him for his
disobedience, and to punish him severely. He had the instructions
of the School Committee for so doing, and the request of the parent. He
did his painful duty kindly, temperately, and properly ; without passion,

and in reason. And in this he did just what the boy wanted to have done,
and what those who stood behind him and instigated him, wished him to
submit to. The boy did not want to have his swollen hands reduced ; he
wished to become the martyr who was wanted by those behind him ; he
desired, perhaps, to get that medal from the priest.

The counsel considerfed^the question of the right of the teacher to punish
his scholars could not be questioned. For the time being he was invested
with parental authority in the school-room, and he had yet to learn that

a father’s commands as to what course the boy shall take while in school
are superior to those of the teachers.

Witnesses for the defence were then called.

Samuel W. Mason
,
principal of the school, was first called. I have held

that position two years ; on Monday morning last there were nine hundred
and thirty scholars in the school. Mr. Cooke is second master, and Miss
Shepard is also a teacher ; in the school there are ten rooms and eleven

divisions
;

in all the school there are fifteen divisions, but four of them are
out of the building. A week ago last Monday I was told by Miss Shepard
that she had a scholar who would not obey ; he would not read the Ten
Commandments. I was busy at the time, and told the boy to take a seat

;



TRIAL OF MVLAURIN F. COOKE. 17

soon after, I asked the boy the trouble, and he said he did not wish to say
the Ten Commandments. I told him not to come to school again unless
his father, mother, or some friend came with him. That forenoon I saw the
chairman of the School Committee, and asked him what was to be done
with such a boy ; the chairman, (Micah Dyer, Jr.,) said no boy could

have a seat in the school unless he followed the regulations. Next Wednes-
day Mr. Wall and another person came to the school and asked why the
boy had been turned out of school. Mr. Wall and myself had some talk
about the Commandments

;
I said this was a slight matter to make so much

trouble
;

I said no new thing had been started— that it was a rule of the
school for boys to repeat the Ten Commandments every Monday morning.
He said his boy should not repeat them ; I said his boy had always been
in the habit of repeating them

;
he said something about proselyting, and

I said, we want your boys to come to school, and to grow up into good cit-
izens

;
that no matter of proselyting was ever attempted ; that home was

the place to teach religion, not the school
;
I had a right to my religion

and he to his
;

I did not interfere wdth his boy’s religion, and if he would
come to school and obey the rules, he would be received. In regard to
the Commandments, I said that where a boy had objected, I had never
pressed this thing or the other. The other gentleman then said to Mr.
Wall, “Send your boy to school; send him to school.” Soon after, Mr.
Wall came again with his boy. He talked much about these Command-
ments. I asked him in what we differed in regard to them? I said,
“ You are an intelligent man, and I want you to tell me where the differ-
ence lies.” At this time a boy came in with his books, in one of which
were the Commandments. I took the book and showed Mr. Wall the
Commandments. “ Now,” said I to him, “ I want to know what you are
willing your boy should say.” I read the first Commandment. “ Thou shalt
have no other gods before me.”

“ All right,” said he
;
“ did my boy refuse to say that ? ” I said he

refused to say a word
;
he sa,id, u if my boy refuses to say that, chastise

him severely
;
” the boy was present at the time.

I read all the Commandments, and asked him if he objected to them

;

he said “ all right ” to each and all of them
;
he had no objections

;
then

I said, “ If there is any difference in the two versions, it must be very
slight indeed

;
but,” said I, “ there is some difference in our version

;
it

says ‘ hallowed the Sabbath day,’ yours says 1 sanctified the Sabbath day/
— the difference is merely verbal.” He then said he wanted his boy to
say his own Commandments; I said boys that wished to say “ sanctified

”

instead of “ hallowed ” had always been allowed to say it
;
I said to the

boy, “ Wall, go up stairs and obey your teacher, and be a good boy ;” his
father said, “ that’s it — that’s right,” and went off. Next day (Thursday)
Mr. Wall came to the school and said, “ Has that boy said the Command-
ments ? ” I said I presumed not, as there had been no occasion for him
to do so since I saw him. He said, “ I want that boy to say the Command-
ments, and if he don’t do so I want him chastised severely ; ” he then went
off, and I heard no more of the matter until Monday morning. I was not
in my room in the early morning, and got to my room about twenty min-
utes after nine

; about quarter past ten Mr. Cooke came into my room and
said Miss Shepard had got into trouble

;
he said she had twenty boys who

refused to say the Commandments. I heard no more of the matter until
a quarter before eleven o’clock, when I passed up to Mr. Cooke’s room

;

saw the Wall boy on Cooke’s platform
;
said to Cooke, “ 0, I’ve seen that

2



18 TRIAL OF MCLAURIN F. COOKE.

boy before, and I’ve seen his father.” The boy said his father had told him
that morning not to repeat the Commandments

;
I told him, “ your father

has told me to make you repeat them, and if you do not to whip you.” He
replied, “ I know he told you so, but this morning he told me not to ;

”

said I, “ If he has changed his mind, he ought to have let me know of it.”
He admitted that his father had ordered me to chastise him if he did not
repeat them several times. I then passed out of the room into Miss Shep-
ard’s room

;
from a sliding door in that room I saw Mr. Cooke punishing

the boy
;
heard the boy ask him not to punish him, at the same time hold-

ing his hand out willingly
;
he replied, “T don’t want to, but must ;” saw

three or four blows given very slowly, for he was talking deliberately all
the time, telling the boy that order must be had and rules obeyed

;
fearing

that there was difficulty on my floor, I passed down stairs
;
the blows

that I saw given were not so severe as I have often seen administered
;
the

custom of putting the hands of the boys into cold water after whipping is
very common ; went through all the divisions in the main building on that
day.

Question. What was the general state of discipline in the school that
day among the Catholic pupils?

Mr. Dwight objected to the question. It was irrelevant to this issue, and
would call for a trial of the conduct of every boy. Our proposition was
that Thomas J. Wall had been unlawfully whipped. This answer could
only be admissible as proving by way of defence that otker boys had be-
haved badly.

Mr. Durant said that his purpose was to show that there was a concerted
plan made by the Catholic boys to resist the regulations of the school, and
not to allow the Bible to be read or the religious exercises to be per-
formed, and that in this conspiracy the boy Wall was a prominent actor.
The Court ruled that it was admissible to show any concert of action

among the pupils of the sehool to violate the rules, provided the boy Wall
was connected with it.
The court then adjourned to Saturday morning at eleven o’clock.
Samuel W. Mason resumed. When I entered Miss Shepard’s room I

heard an unusual noise; I immediately said, “Position one, boys,” which
is to have every boy sit in his seat with folded arms ; they complied in-
stantly. I asked of the boys what was the trouble ; they made no answer,
but exchanged defiant looks with each other. I said, “ Now, boys, let us
act manfully about this — don’t be hasty.” I then put this distinct question
to the boys, “ How many of you boys have come here this morning under
the deliberate intention of disobeying the rules and regulations of the
school ? ” and before the last words had left my lips, I should say two
thirds of the boys jumped to their feet. I told the boys to take their seats,
and they did so ; I then left and went to see the School Committee. I
think I discharged about one hundred boys that day for insubordination.

Cross-examined by Mr. Dwight. I could not give any idea of the force
used in the blows administered on the boy’s hands, although I have had
some experience in the use of the rod. I understood Mr. Wall to say, on
the first interview on Wednesday, that he wanted his boy to say the Ro-
man Catholic Commandments ; there had been no excitement in the school
in regard to the Commandments previous to last Monday. I said in my
direct examination that I allowed boys to make slight verbal differences in
repeating the Commandments if they desired to ; my idea is that the dif-
ferences between the Commandments in the Protestant Bible and the



TRIAL OF MVLAURIN F. COOKE. 19

Douay Bible are slight ; I cannot repeat the Commandments according to
the Douay version; I never had occasion to consider the subject of the dif-
ferences until Monday, the 7th instant.

Question. Had you, up to last Monday week, as Principal of the school,
over insisted upon these verbal distinctions in the Ten Commandments?

Answer. I never had. I had authority to do so, however. I had not

compared the two versions of the Commandments previous to last Monday
week. When I said the distinction in the Commandments was a mere
verbal one, I meant that the words were different but the meaning was
substantially the same.

Q. Do you think there is any difference in regard to religious opinion
in the two versions of the Commandments ?

A. I do, but I am unable to say wherein the difference lies. I should
not insist upon any slight difference in the phraseology of the Command-
ments —“ sanctified ” and “ hallowed,” for instance, or “ adored” and “ bowed
down.” This was my opinion at the time of my interview with the boy’s
father.

Q. Then you were willing that the boy should repeat the Command-
ments according to his own version ?

A. No, sir.

Q. You say you did not insist upon any slight verbal differences,
and that the only differences which you knew of, at the time of your con-
versation with the boy’s father, were slight verbal differences. Now, if
that is so, I wish to know why you were unwilling the boy should repeat
the Commandments in his own way according to his own Catechism.

A. Because I was opposed to the general tenor of the Catholic version,
and believed it ought not to be introduced into our schools.

Q. Did you know of any other differences than the two of which you
have spoken ?

A. No.

Q. You regarded those as trivial and verbal, did you not ?
A. I did not think them important.
Q. What then was your objection to having the Catholic version re-

peated if the boy preferred it?
A. I did not wish it to be introduced into the schools.

Q. When you told the boy he must follow the spelling-book version of
the Commandments, did you not do so because you did not wish his relig-
ious opinions introduced in the school ?

A. Yes, sir.

Q. Then when you insisted upon the version of the spelling-book, that
is, the version of the Protestant Bible, did you not intend to introduce the
Protestant religion into school, and make the Catholic boys conform to it ?

A. I intended to have the rules of the school obeyed.
When I talked with Mr. Wall in regard to the different versions, I did

not know or inquire whether he could read or not. He had not with him at
the time a Roman Catholic version of the Bible ; when I read the first
Commandment to Mr. Wall, I did not stop to point out the difference
between the versions.

Q. You knew of the difference, did you not ?
A. Yes.

Q. Why didn’t you point it out ?
A. I told him his boy had always repeated the Protestant version, and

it would not hurt him.
Q. You knew he was a man of no education, did you not ?



20 TRIAL OP MCLAURIN F. COOKE,

A. I thought him an intelligent man.
Q. There is a difference, we all know, between education and intelli-

gence. Did you think him an educated man ?
A. I think not. At the third interview I had with Mr. Wall he asked

if his boy had repeated the Commandments. I understood him to speak
of the Commandments we had agreed upon — the Protestant Command-
ments, which are contained in the spelling-books. I replied that I pre-
sumed the boy had not repeated them, as there had been no occasion for
him to do so; he then said, “I want you to chastise him if he refuses.”

Q. Were not the Commandments you agreed on with Mr. Wall the
spelling-book Commandments with slight verbal differences.

A. I understood him to agree to them as they were.
Q. Did you not at the same time tell him that such differences would

not be insisted on ; that his boy would not be punished for making them ?
A. I believe I did. At this interview, Mr. Wall did not say “ my

boy has been kept on the platform all the afternoon for not saying the
Commandments,” nor words of that kind. I have stated all the conversa-
tion which passed between us. I am sure there was no complaint made
about any punishment which had been inflicted. I had no reason to sup-
pose the father had changed his mind. So far as my discussion with Mr.
Wall went, in regard to the Commandments, I understood him, after re-
peating to him two distinctions which occurred to me, that he was willing
his boy should repeat the Commandments according to the Protestant
version.

Q. Did you communicate this conversation to Miss Shepard or to Mr.
Cooke, at any time before the whipping ?
A. I did not.

Q. Why?
A. Because I had already given general directions not to have any boy

punished for refusing to repeat the Commandments with such a verbal
alteration as “ sanctified ” and “ hallowed ; ” I considered that the boy was
at liberty to say “ sanctified ” for w hallowed ” if he chose to do so.

Direct resumed. No teacher has any authority to alter the books to be
used in the school, or in any way change them

;
the School Committee have

given me no power so to do. I understood Miss Shepard to say that the
boy refused to say even one of the Commandments. The erasions in the
spelling-books shown me were never made by me. Since last Monday I
have seen these books mutilated in a manner that I never saw before

;

never was anxious, or desired to bring up this question of religion, by
allowing this Wall boy to be whipped ; never taught any sectarianism or
religion in the school— only piety. Miss Shepard had authority to ask the
pupil if he would abide by the rules.

To Mr. Dwight. Do not know that Mr. Cooke offered the boy the
Protestant Bible to read the Commandments from when he was whipping
him ; do not know whether he did so or not.

Frederick Ballard called. I am a pupil in the Eliot School, in Mr.
Cooke’s room

;
was present on Monday, when the Wall boy was whipped;

heard some boys tell him “ not to give up ” while he was being punished

;

don’t know who these boys were. Whistling and other noises were kept up
while he was being whipped

; a good many engaged in it. I knew before
school opened what was going to be done. I knew from some of the boys
that they were going to refuse to sing, say the Prayer or the Command-
ments. I knew this from a boy sitting next me.

Q. What did the boy sitting next you tell you ?



TRIAL OF MCLAURIN F. COOKE. 21

Mr. Webster, senior counsel for the complainant, objected to this ques-
tion, because the boy had not been in any way connected with the boy
Wall, nor with the case on trial. He argued that upon no recognized
rule of evidence could this question be put at this stage of the case. It

was absurd to say that there were facts in evidence which made out crim-
inal conspiracy on the part of the boy, which would permit this looseness

of examination. What were the facts which the defence assumed to be
proven to make out conspiracy ? They are, first, that on last Sunday the
pastor of a church in this city, having under his charge nine hundred boys,
ventured, by way of inspiring them with a religious pride — by way of
inspiring them with devotion to their church—which in the pastor’s opinion
was the one thing necessary —ventured to suggest to these boys not to
repeat the Protestant Commandments ] Was there any thing criminal in
that ? The suggestion was to repel proselytism. Was there any thing
criminal in such a suggestion ? He did not venture to suggest to his boys
that they were to proselyte other people. He did not go so far as to say
to those boys that they must prevent other boys from saying their version
of the Commandments. His next suggestion was that the boys should act
together on Monday, and carry out these suggestions as to their religion.
Was there any thing criminal in that ? Is it not permitted in this Com-
monwealth for Catholic pastors to repel proselytism ? Cannot Protestants
repel attempts to convert them by Catholies ? It must be remembered
that the priest Wiget did not act affirmatively. He did not try to prevent
Protestant children from repeating the Commandments as they chose, but
only acted negatively, to protect the religious faith of his own flock.
Surely there can be nothing unlawful in that.

In the next place, was it criminal for the Catholic boys, who attended
church that Sunday morning, and heard the pastor, to consult together,
either on that day or the next Monday, to protect their religion ? Was it
unlawful for them to happen to say to each other that they had determined
to obey their parents and religious instructor, and not to repeat in school
the Protestant Commandments ? Was it in violation of any law for them
to express determination not to be proselyted ? And that, too, when they
indicated no purpose to interfere with the liberties of any body else in the
school? Have we come to that in the Commonwealth of Massachusetts,
this first landing spot of the oppressed for conscience sake ?

But it is said by the defence that there was a concerted combination by
these boys to do an unlawful act, which was to resist and disobey the recom-
mendations of the School Committee, and thus a law of the Commonwealth.
But that proposition begs the very question which his associate, Mr.
Dwight, argued to the Court, which was, whether these recommendations
and regulations of the School Committee were not illegal and void because
against the Bill of Rights, the Constitution, the Statutes, and the public
policy of the Commonwealth. Mr. Webster contended that they were,
and that thus were of no binding effect. And so before the Court could
find a conspiracy which would open the door to all this now irrelevant tes-
timony, it must venture to decide the regulations which now practically
exclude Catholic children from the public schools by reason of their relig-
ious opinions, to be constitutional and binding.

Mr. Webster said that Mr. Durant had all along been terming acts crim-
inal which were not criminal. It was a mistake, of terms He would not
say it was cant, but it was a misapplication of legal terms. In regard to
the opening argument of the counsel on the other side, Mr. Webster said



22 TRIAL OF MVLAURIN F. COOKE-

it seemed to him that in that argument Mr. Durant did not address himself
to the judgment of' the Court, but to the public outside of the Court Housey
more especially when he intimated that an attempt was being made to force
tyranny upon the Commonwealth by expelling the Bible from the public,
schools. Had it come to this, that a boy of ten years of age —a boy who,
by reason of the cross-examination, left the room only to faint and fall
down— had it come to this, that a boy no stronger than that was going to
make a crusade against the Bible in this Commonwealth ? It was part of
a plan of the defence to introduce testimony, for sinister objects, which was
not pertinent to the question on trial, whether Cooke assaulted and beat
young Wall unlawfully. He repelled with earnestness the suggestion
thrown out by the opposite counsel that the counsel in this case for the
complainant desired to drive the Bible out of the common schools of the
Commonwealth.
Mr. Durant said this wras the fourth time this question — whether the

facts in the case were to be fairly stated — had been raised and settled by
the Court. He believed it was usual for counsel in courts of justice, to
acquiesce with one decision ; they were usually satisfied with having the
point of law once discussed and once settled

;
but it seemed the counsel

in this case had attempted to shut out this evidence of conspiracy -by saying
it arose from the purest of religious motives, but they were unwilling to
show the Court how pure these motives were, or how noble the spirit
which incited the pastor. Mr. Durant said he had no desire to talk to the
public outside ; he cared not for public opinion, but he would say it was
open conspiracy for one hundred boys in a public school, to rebel against
their master, and in open defiance and against the laws.

Mr. Webster answered by saying that the reply of Mr. Durant made
apparent that he had touched, as with a needle, the critical point of the

discussion, whether the question should be admitted which was the criminal
conspiracy. The Court must now, in fairness, decide that point. He fur-
ther replied to some of Mr. Durant’s insinuations in his opening.
The Court decided that the point raised was the same as that of Friday

night — that is, whether to admit any evidence tending to show a state of
insubordination. He was of opinion that any concerted action between
these boys which would tend to show a state of insubordination, should be
inquired into. But in doing that, he did not intend in the slightest degree
to have the sermon of last Sabbath reviewed in Court.

Direct examination of the witness resumed. I knew there was going to
be a difficulty before the school commenced ; the boy who told me about
the resistance said they expected to be whipped and expelled from school

they told each other not to chant the Lord’s Prayer that morning.
Cross-examined. The boy next to me said they were not going to say

the Commandments or sing the Lord’s Prayer ; he did not ask me not to.
Micah Dyer, called. I am Chairman of the District Committee, and I

have given Mr. Mason instructions to enforce the regulations and recom-
mendations prescribed, and that such boys as refused to comply must leave

the school. I went to the Eliot School on Monday afternoon last.
Q. What state of things did you find there ?

Mr. Dwight objected to this question. He said it was in evidence that
the boy Thomas Wall, went home after school on Monday morning, and
did not return. The inquiry had been allowed as to the state of the school
while he was a member of it, but upon what principle can the conduct of



TRIAL OF MVLAURIN F. COOKE. 23

tlj-e scholars after he had ceased to belong to the school, affect him ? The
conspiracy, so far as he was concerned, was certainly consummated. There

is another objection. What happened in the afternoon may very naturally
have been the consequence of the whipping of which we complain. If the
wrong was of the character alleged it might well excite insubordination
among buys. And this is the only reasonable explanation of such disturb-
ance. Ac all events the morning whipping cannot have been the conse-
quence of the afternoon disturbance according to any relation of cause and
consequejce hitherto received. The evidence has, therefore, no application
to this case.

Mr. Durant said the objection was the same as that already overruled.
He purposed to show that a deliberate attempt had been made to exclude
entirely the Bible from the schools, and the conduct of the boys in the

afternoon was admissible to show that.
The Court allowed the inquiry.

The witness resumed. Mr. Mason told me that the boys refused to say
the Lord’s Prayer or repeat the Ten Commandments, and to obey the reg-
ulations

;
I went into the other rooms with a copy of the rules and regulations

of 1 858, and after reading the whole section to the boys, asked all those
who refused to have the Bible read to them, to repeat the Ten Command-
ments, or to say the Lord’s Prayer, to rise ; thirty or forty boys rose as

soon as I got the words out of my mouth. There was humming, scraping
of feet, and other noise. I told the boys to leave the school, and before a
third of them had got down stairs, they commenced cheering

;
in the second

room I repeated the questions, and asked the boys if they refused all.
There was not so much disturbance in the second, third, and fourth rooms
as in the first

;
the boys made so much noise going out that I sent Mr.

Mason for a policeman.
Cross-examined. No one sent for me to go to the school. Mr. Mason

sent me a note asking me what I should do. I replied in person, and turned
out the boys. I am chairman of the District Committee. I went to Mr.
Mason’s room first

;
he said there was some trouble in some of the rooms

in regard to reciting the Lord’s Prayer and Ten Commandments
;
and also

that the rules and regulations were not carried out
;
after this I w£nt first

to Miss Shattuck’s room. I asked all the boys who had in the morning re-
fused to have the Bible read to them, to recite or repeat the Lord’s Prayer,

or to repeat the Ten Commandments, and who still refused, to leave the
city books behind them, and leave the school

;
it was not a matter about

which I took much pains. I intended to get from the boys an answer about
the Bible’s being read.

Q. Had Mr. Mason told you that the boys refused to have the Bible
read to them ?

A. I think not.

Q. Did you intend to catch these children by asking them the questions
together, and by getting them to jump up from their seats to assent to all
the things together, rather than one or either of them?

A. I did not so intend.

My purpose in asking the whole question was simply to do my duty. I
intended to find out their position, nothing more and nothing less

;
don’t re-

member whether I said “ and ” or “ or.” I read the section all over, and
put it as one proposition. I saw the children in an excited state. I read
over all the sentence

;
I then emphasized the question whether they refused

all those requisitions
;
they jumped up at once

;
I could not gather from what



24 TRIAL OF MCLAURIN F. COOKE.

Mr. Mason said, or from what I had heard, what the hoys had really
refused to do. I did not desire to discriminate between the Bible and Ten
Commandments ; did not desire them to agree to violate a State law before
I turned them out.

Q. You knew that the latter part was called a recommendation
,
did you

not ?

A. Yes.

Q. Did you take any pains to distinguish between the different parts of
the rule ?

A. No.

Q. Your idea was to enforce the -whole regulation, was it not?
A. If there had been a rule that the boys should stand on their heads,

I would make them obey it or expel them.
Had heard of the affair in the morning, and went to the school at two

o’clock in the afternoon ; said nothing to any single boy. I went simply to
decide what boys should be turned out, and what should not; did not order
any boy to be whipped. Had been whipped there too many times myself to
order any boy to be whipped ; there was a general stiffening of the neck
as well as shaking of the head, &c., when I spoke to the boys

;
there was

a loud humming and scraping of feet; it continued most of the time I was
there. I went into six different rooms and asked the questions in five. I went
into Miss Shepard’s room ; she said nothing about a boy having been
whipped that morning ; nothing was said in my presence about the religion
to be taught there.

At this point the further examination was postponed to

Wednesday, March 23.

Miss Ably M. Marsh called. I am one of the assistant teachers in the
Eliot School; been such for five years. I was in Mr. Mason’s room week
before last, when a father came in to talk with him about his boy ; he came
in very abruptly and wished to know if his boy had repeated the Com-
mandments. Mr. Mason replied that he had not, as he would not have
occasion to till next Monday morning. He then said to Mr. Mason to have
the boy* recite them, and if he was not -willing to obey, to make him. I
understood him to wish that his boy should remain, or stay, in school and
obey ; something was said about chastisement or whipping by him. I am
certain it was after Wednesday that the father came; it was either Thurs-
day or Friday.

Cross-examined. Am in the same room -with Mr. Mason ; the exer-
cises of the school were not going on when this conversation took place

;
it

was after the school session. I think it was between twelve and one o’clock. I
can’t say what I was doing at the time ; don’t remember the precise words that
were first spoken. I recollect that the word Commandments was used ; never
saw the father before, to my recollection. I understood him to ask Mr.
Mason if his boy had said the Commandments; whether he said the Com-
mandments I am unable to say. I fix the time between twelve and one
o’clock, because the room is usually vacated at twelve o’clock.

Miss Sophia Shepard called. The boy Wall was a scholar in my di-
vision. Mr. Cooke’s room adjoins mine. Have been a teacher in the school
since September, 1852. On Monday, the 7th inst., I required the boys to
repeat the Commandments separately — the first one to the first boy,
the second to the second, and so on. 1 did not ask each boy to repeat all of

them
;
having new scholars at the commencement of this quarter, I had



TRIAL OF MCLAURIN F. COOKE. 25

them recited in this way in order that I might know that each boy knew
them. After each boy had learned them thoroughly, it was customary to re-

cite them in concert. On the day alluded to, when it came to the Wall boy to
recite them, he refused, saying that he did not know them. I told him that
he had known them before, and said he must remain after school and learn
them

;
he had recited them before — all of them, separately. After school

he told me that his father did not wish him to say them ; kept him till one
o’clock, and then took him to Mr. Mason to see if I should retain him. He
still refused to recite them, and Mr. Mason discharged him. On Wednes-
day following, he came again into my room, saying that his father had seen
Mr. Mason, and he had sent him back. He did not seem to be well pleased
at coming back. I kept him after school, and gave him the Commandments
to learn and repeat. He refused to recite them, but finally he said one of
them. I then dismissed him, telling him I should require him to recite all
of them on Monday. On Saturday, when I dismissed the school, I told all
the boys that I should require all the Commandments to be recited on Mon-
day. On Monday quite a number refused to say them—the Wall boy among
the number

;
he told me that the priest had told him not to recite them. I

told him what Mr. Mason had said— that his father had ordered him to be
whipped if he did not recite them

;
told him this after he said the priest

had told him not to say them. One boy, who was very impudent, I told to
go upon the platform. He refused, and ran out; I then went into Mr.
Cooke’s room and told him of the circumstance. Mr. Cooke came in and I
gave over the Wall boy to him to be whipped. I considered him to be thei
foremost boy in making the trouble. I judged that he was from his actions
and conduct, and from having previously refused to say them. He was very
stubborn and wilful, and made a noise under his seat by scraping his feet.
Other boys scraped theirfeet; great disorder prevailed, and there were under-
tone whisperings, studying in a loud tone, &c., entirely contrary to the rules

of the school. There was no very loud noise, but disagreeable and trouble-
some conduct on the part of the scholars ; it was so general that it was
difficult to ascertain who were the authors of it. There had never been any
thing of a similar kind in the school before.

Cross-examined by Mr. Dwight. It is not usual to recite the Com-
mandments separately every Monday morning. The exercise previous to
reciting the Commandments was reading of the Scriptures and chanting.
After the failure to recite them, I ordered about ten of the boys to remain
after school and learn them. The Wall boy has been under my charge since
September last. At the last term there were about fifty-five children in the
school. The Wall boy sits in the last seat in the first row

;
when the Com-

mandments are recited I go down each row. I can’t say whether he said his
father did not wish him to learn or to recite them. I think on the first Mon-
day there were no boys besides Wall that refused to say the Command-
ments.

Q. Did you tell him at that time that he might repeat his own Com-
mandments ?

A. I did not.
Q. Did you tell him he might make slight verbal differences ?
A. No.

Q. Did you, as teacher of that school, make any attempt to get at the
child’s mind and conscience, and find out why he was unwilling to repeai
the Commandments ?

A. I made no effort to get at the child’s mind upon the subject. On Mon-



26 TRIAL OF MCLAURIN F. COOKE.

day, 14th inst., the first thing done was the reading of the Scriptures by
myself

;
the Lord’s Prayer was then chanted. Up to this time there was no

trouble. I then told the boys to get into position to recite the Command-
ments separately ; each boy was required to say the whole. The first two
boys recited them, the third refused, the fourth recited, the fifth, sixth, and
seventh refused, the eighth recited, and the ninth, (who was the Wall boy,)
refused. He first said that he did not know them, and afterwards that his
father did not allow him to say them. I then told him to stop after school
and learn them, and passed on to the other scholars down to the boy
Rohan. The Rohan boy refused, in an impudent tone, and when I told
him to go upon the platform, he ran out of school. I then went to Mr.
Cooke and told him of the circumstance. Mr. Cooke sent a boy after him,
and he was brought back. Shortly after, Mr. Mason came in and said he
had seen Mr. Rohan, and he had behaved like a gentleman

;
said he did

not want the boy whipped. Geography followed the religious exercises. A
Mr. Hazelton came into my room about ten o’clock, and asked me if I had
had any trouble about the boys reciting the Lord’s Prayer. I told him that I
had not— but had on the Commandments. He then asked those boys who
refused to say them to stand up

;
about two thirds of the boys rose. In

answer to a question from him, they gave as a reason that they were not
allowed to say them. He then asked them if they could explain the differ-
ence between them. I don’t know that any said they could. He called the
Wall boy up and asked him to read them out of the Bible. The boy re-
mained silent, and Mr. Hazelton told him he would give him five minutes
to think whether he would or not

;
afterwards said five was too much, and

he would give him two minutes. After the expiration of this time, he gave
the Bible to Wall, but the boy still refused. Mr. Hazelton did not do any
thing with him after that. Mr. Cooke came in, and I told him the boys
were behaving very badly. He then said I had better turn them over to his
rattan. I made no reply, when Mr. Hazelton spoke up and said, “ Here’s a
boy,” (meaning Wall,) “ that refuses to obey the regulations ; ” he then
gave him into Mr. Cooke’s care, and he took him into his room. I don’t
know that Mr. Hazelton said any thing more than what I have testified to,
when the boy was passed over to Mr.. Cooke. He might have taken him by
the hand and passed him round the chair to Mr. Cooke. I do not know that
he took him by the neck. I did not see him touch the boy, as I was busy
with the other scholars. He might have taken him by the neck without my
seeing him. I knew that the boy was going to be whipped by Mr. Cooke

;

it was done with my assent. I did not whip any body myself on that day;
merely kept them after school. Neither Mr. Hazelton nor myself told the
boy that no verbal differences between the two versions of the Command-
ments would be insisted upon. On Wednesday, 9th inst., Mr. Mason had
spoken to me about the differences. I told him that I had always corrected
the boys when they said “ sanctified” instead of “ hallowed ” ; this was done
to preserve uniformity when they recited in concert ; this was before Wed-
nesday. I had never known the Catholic Commandments. I supposed there
were verbal differences between the two versions, but did not know them,
I had observed occasionally that some of the boys added the word “ mighty”
before God in one instance, so that it read “ mighty jealous God.” I had
always acted solely with a view to have the language of the spelling-book

recited. I think the Wall boy told Mr. Hazelton that he could not break his
religion. Other boys told him that they understood the Christian religion to
be the Roman Catholic.



TRIAL OF MCLAURIN F. COOKE. 27

Q. On the Wednesday that Thomas Wall returned to school, did not
you ask him when he had recited the first commandment, whether it “ had

hurt him ?
”

A. I might have done so.

Q. What did you mean by it ? Did you not intend to taunt him, or
to cure him of his prejudices ?

A. If I dicfask him, it was to let him see that the rules must be obeyed

;

had no idea of curing him of his prejudices ; my whole intent was to se-
cure obedience to the rules of the school.

Q. Do you consider it an imperative rule of the committee that the Com-
mandments shall be repeated ? Don’t you know the word is “ recom-
mend ? ”

A. I know that the School Committee rules on this subject “ recom-
mend ” action by the teacher ; look upon the recommendation as a desire
that such recommendation is expected to be carried out ; do not consider

it as absolutely binding ; I understand by the recommendation that I am
expected to have the Commandments recited.

Q. Don’t you think that the Committee mean to leave the matter in
your discretion ?

A. If I find the boys unwilling to recite, I consider it my duty to use
some discretion in compelling them to do so* I consider the last resort to be
a whipping where all other means fail. I would not have a boy whipped for
not complying, but for stubbornness. From the Wall boy’s movements I
judged that he was scraping his feet; did not see his feet. Never received
any direction or any order from any one to whip a boy for not saying the
Commandments. I consider the rule of the School Committee respecting
corporal punishment to be as binding as the other rules.

Direct examination resumed. No priest or parent has any authority in
the school. When a father desires his boy to be punished for continued dis-
obedience in refusing to say the Commandments, I think it proper to inflict
corporal punishment.

Q. Would the priest’s command weigh in your mind against the father’s
desire ?
• A. No, sir. I think a ringleader in a disturbance in school ought to be
punished severely.

Q. Have you ever made a difference in the sects of the scholars, as to
the way in which they recite these exercises ?

A. I never have made any distinction of sect or creed in my class ; if
the boy Wall had been a Jew it would have made no difference in my
conduct. I never intended to injure any boy’s conscience by requiring him
to say “hallowed” instead of “sanctified;” the boy Wall made no offer
to say the Commandments in any version.

Gross-examination resumed. Q. Did Mr. Mason in any way commu-
nicate to you the conversation he has testified to with Wall’s father which
took place after Wednesday ?

A. No.

Q. You have spoken of the way in which you would punish a ringleader.
Now, will you tell me what you understand by a ringleader ?

A. I understand a ringleader to mean a boy who refuses to obey and
induces others to disobey.

Q. Have you told us all you saw Thomas Wall say and do ?
A. I think I have.

Q. Have you told us of his saying any thing to the other boys to incite
them to disobey ?



28 TRIAL OP MCLAURIN F. COOKE.

A. I don’t think the boy incited others to disobedience by saying any
thing to other boys.

Q. If you know of any thing that he said or did, which you have not
already stated, that made you think him a ringleader, state it.

A. My opinion was formed that he was a ringleader from what he had
done on the previous Monday, he refusing alone to recite the Command-
ments, and also by his appearance and actions on the day that he was pun-
ished.

Q. What was his appearance ?
A. The other boys turned round and looked to him for encouragement.

He looked determined.
Q. When did the other boys turn and look at him and he at them ?
A. When his turn came to recite the Commandments.
Q. He sits on the back seat, does he not ?
A

.

Yes.

Q. Other boys had refused to recite before him, and when his turn came
the boys looked at him, to see. Is that all ?

A. He looked stubborn.
Q. Have you not a great many older boys in your room than Wall ?
A. I have older boys in the class than Wall ; none so old as fifteen

years. Wall went away quietly with Mr. Cooke, when he took him to
whip him. He made no resistance.

Q. Can you tell the difference between the words “sanctified” and
“hallowed”?

A. I see none.

Q. Supposing a small boy in your class says he does see a difference in
the words, would you force him to drop his understanding and take yours?

A. I should not allow him to change a word without I saw a difference.
Q. You are teaching these Commandments, and- make a boy say them,

whether he believes in your way or not ; now you also teach the Com-
mandment, “ Thou shalt not bear false witness,” don’t you ?

A. Yes sir.
Q. Don’t you call it bearing false witness to say what they don’t be-

lieve ?

A. I never interfere in any boy’s belief, but merely compel him to obey
orders.

Daniel McKinley called. Am a pupil in Miss Shepard’s room ; on
Monday, 14th, when the boys recited the Commandments there was a shuf-
fling of fe’et among the boys from all parts of the room. I heard a noise from
the direction where Wall sat. There was a mumbling noise. Three differ-
ent boys tried to prevent me from reciting the Commandments ; they told
me if I did recite them I should be shamed on the altar and punished by
the priest.

Cross-examined. Sat four seats from the Wall boy. He was not one
of those who told me not to recite them. I recited the Commandments,

Direct resumed. Am a Catholic boy.
Lewis D. Veazie called. Am a pupil in Miss Shepard’s room. Was

told by three boys if I said the Commandments they would kick me ; they
did kick me. There was scraping of the feet and whistling among the boys.

Cross-examined. The three boys who kicked me were Rohan, Whit-
ney, and Flynn. Mr. Cooke asked me to come to court and testify, after
asking me what I knew.



TRIAL OF MVLAURIN F. COOKE. 29

George Ellis called. Am a pupil at the Eliot School ; been there five
years. As I was passing home from school last week, I heard one among a
crowd of boys, who, I think, was Wall, say that he was not going to “say

those d—d Yankee prayers.” I ask*ed one of them why they were not
going to say them, and he replied that the priest had told them not to.

Gross-examined. Mr. Mason asked me to come to court and testify.
I can’t tell what day it was that I met the boys. I was playing marbles, and

one of mine went in among them where they were standing, and I went
after it.

James McFarland called. Am a pupil in Mr. Cooke’s room. I saw the
Wall boy whipped. Mr. Cooke went out into the entry twice while he was
being whipped

;
think he was out, in all, about fifteen minutes. I heard Mr.

Cooke ask him to say the Commandments. While Mr. Cooke was out I
heard some boys speak to Wall and tell him not to say them. Heard no boy
tell him to say them. Have had my hands put in water after being whipped.

Cross-examined. Mr. Cooke asked me to come to court. He asked me
how long he whipped the boy and how long he was out during the whip-
ping. I did not look at the clock during the whipping ; nobody has suggested

to me that Mr. Cooke was out fifteen minutes. When I have had my hands
put in water it was after a hard whipping, and one that hurt very much.

Defence here rested, and the prosecution introduced the following evi-
dence, in reply : —
Mr. William Wall called. Am the complainant in this case, and

father of the boy whipped. When the boy came home at noon on Monday,
7th, he was crying, and I asked him what he was crying for

;
he re-

plied, for not saying the Commandments. I told him to remain at home, and
I went to see Mr. Mason on Wednesday, at about nine o’clock. I took a Mr.
Gill with me to hear what was said

;
saw Mr. Mason and asked him why

the boy was discharged, and he replied, for not saying the Commandments.
I asked him if he had refused to say them in his way, and he said he had in
that or any other way. I then told him to make the boy say the Roman
Catholic Commandments or punish him, and he said he would. I then said
I would bring him back, and did shortly after. I left the boy in his charge
with the understanding that the boy should say the Commandments in his
own way on the Monday following. He read the Commandments over to
me, and as long as he divided them I said it was- all right. When the boy
came home from school I told him not to say the Commandments, for he
said Miss Shepard had made him say them in her own way. I went to see
Mr. Mason again that afternoon, and told him I thought he had agreed to
have him say them in his own way. He asked what was the matter, and I
told him that the boy had been kept on the platform all day for not saying
the Protestant Commandments. Mr. Mason said this was the first time he
had heard of it, and promised to see the matter fixed. I then left, and said
nothing more to him until the next Monday, when the boy was whipped.
On that day he came home crying, and finding out that he had been whipped
for not saying the Protestant Commandments, I told him not to say them
if he died for it. I can’t read or write

;
work longshore, and on the wharves

as a stevedore.

Cross-examined. My boy has been to school for seven years. I always
objected to his reciting the Commandments. I did' not know that he ever
said them until lately. He always denied to me that he had ever said them
at all

; has told me often that he had never said them separately. I have



30 TRIAL OF M°LAURIN F. COOKF,.

often asked him, for I was afraid he might. I don’t know what brought about
the refusal to say them on Monday, 7th. I never heard previous to that, that
the priest had told the boys not to recite them. I have been told myself not
to recite them at least five thousand times by my father and the priest

;

this was in Ireland, where I got better religion than I ever did here. I was
asked in Ireland to say the Protestant Commandments by the tract men
who followed me. I knew there was a difference between the two versions.
God made my Commandments, and man made yours

;
there are different

words in each. I can’t name any difference except the one Mr. Mason told
me. I know the second Commandment differs, but can’t tell how. I am no
scholar. I told Mr. Mason that his Commandments were right, if he would
divide them

;
that’s all the difference I know. I did not understand what Mr.

Mason read over to me. He agreed that the boy should say them in the
Catholic way. I told him to whip the boy if he did not say them in the
Roman Catholic way

;
he did not promise to whip him

;
he said he would

obey my request. He told me to go home, and he would make the boy all
right. I was afraid the boy would refuse to say them in his way. I don’t
think I said to Mr. Mason that the boy had been whipped. I did not tell
him that I wanted to have the boy punished if he did not recite the Com-
mandments, or that I wanted to have him remain in school. My boy told
me that he was left on the platform all the morning of the day that he was
sent back, and allowed no time to get his lessons.

Mr. Durant here called the boy Wall to the stand, and asked him
whether he told his father that he was kept on the platform all the morn-
ing of Wednesday.

Mr. Dwight objected that his examination could not be interrupted.
Mr. Durant said the objection was too late.
Mr. Dwight said that it was not too late, but he would withdraw it after

making a single statement. The counsel for the defendant had sought to get
an advantage by this irregularity, and intended to emphasize the difference of
recollection between the father and son. Now, he was welcome to make the
most of the discrepancy, but he wished it to be understood that it was a
piece of stage effect, which the counsel must have known to be improper.

The witness then testified. I don’t remember that I told my father that
Miss Shepard kept me on the platform all the morning. Miss Shepard did
not keep me on the platform. I don’t think I told Mr. Dwight that I never
told my father so ; can’t exactly remember.

To Mr. Dwight. Think I told you that Miss Shepard called me upon
the platform after school, and asked me to say one Commandment. I recited
my lessons that day, the same as previously.
Edward Gill, grocer, testified that on Wednesday, three weeks, he went

with Mr. Wall to Mr. Mason at the Eliot School. Mr. Wall asked Mr.
Mason if his boy Thomas was discharged from the school. Mr. Mason said
he was. Wall asked, “What for?” Mr. Mason answered, “For not
reciting the Ten Commandments.” Wall then told Mr. Mason that if the
boy refused to say them in his own way, to punish him. We then came
away. I told him to send his boy back.

Cross-examination. My boy goes to the school, and was discharged
from the school because he would not recite the Commandments ; and I
took him back and said he must comply with the rules of the school, and
he remains there now. I never ordered him not to recite the version of

the Commandments in use in the school. When the conversation with Mr.



TRIAL OF MCLAURIN F. COOKE. 31

Mason and Mr. Wall, when I was there, took place, Mr. Mason was sitting
at his desk.

Richard Wall called. I am brother of Thomas J. Wall. I am in my
twentieth year, and my occupation is* that of dry pressman in Rand &
Avery’s establishment ; have been in their employ nearly five years. I for-
merly went to the Eliot School, in Miss Carter’s room ; it is some six or
seven years since I went to the school ; was never called upon to say the
Ten Commandments in school. On Sunday week, at home after dinner, I
heard the boy say to his father that he thought he should be whipped the
next day if he did not say the Commandments. I heard my father tell him
not to say them, and not be a coward for his religion. I go to St. John’s
Church.

Cross-examined. Was at the Eliot School about two years. The Bible
was then read by the teacher ; songs were sung ; the Lord’s Prayer was
repeated by the boys. I can’t say that I always joined in with them in say-
ing the whole of it; if I did say the whole, it could not have been often.

I joined in reciting the Lord’s Prayer at the Primary School
;

think I

changed my course when I Avent into the Grammar School. I never heard
my brother say he “ wouldn’t repeat the d—d Yankee prayers.” I never
heard him use any such words.

Thomas Wall re-called. Never asked any boy not to say the Com-
mandments. I did not tell any one not to on the morning of the 14th.

George E. Whitney called. I am a reporter for the Boston Courier.
I went to see Mr. Cooke on the evening of Monday the 14th, to get from
him the facts concerning the difficulty in the Eliot School that day.

Question. Did Mr. Cooke make any statement to you on that sub-
ject ?

Mr. Durant objected to this evidence that it was not now admissible, not
being in rebuttal.

Mr. Dwight said that the evidence was strictly in rebuttal. The com-
plainant’s case, as he put it in, was a statement of the assault and battery,
the circumstances under Avhich it was committed, and the amount of the
injuries. The defendant’s answer to that case is, first, that it was done at
the request of the complainant, and second, that the boy was whipped as the
ringleader of a conspiracy to drive the Bible from the public schools. And
we have been compelled to waste two days listening to this defendant utter-
ing, through his counsel, the nonsense and folly of a conspiracy. Noav,
shall Ave have an opportunity to meet it, and to answer his defence out of
his OAvn mouth ?

The objection wras then Avitlidrawn, and the Avitness proceeded.

Mr. Cooke made a statement of the facts to me. I took notes of it at
the time, and as soon as I got back to the Courier office I Avrote it out ; it
was printed in the paper, and the next day I shoAved it to Mr. Cooke.
[The witness was here shown the paper and identified the statement.] Mr.
Cooke said it Avas generally correct, and would do with one correction.
The correction he made was that the boy’s hands were put in Avater to pre-
vent inflammation from occurring, not to soothe it.

Mr. Dwight here read the statement to the court as folloAvs:—



32 TRIAL OF MCLAURIN F. COOKE.

“ Difficulty in the Eliot School. —One Hundred, Scholars expelled.
“ Yesterday a difficulty occurred in the Eliot School for boys, on account

of the refusal of a portion of the scholars, whose parents are Catholics, to
recite the Ten Commandments and the Lord’s Prayer as they are written
in the Protestant version of the Bible. The circumstances are these, as
we understood them from Mr. M. F. Cooke, sub-master in the school : —

“ A custom prevails in the various schools in the city, under the sanction
of the School Committee, of reading from the Bible daily, and of repeating
the Ten Commandments and chanting the Lord’s Prayer more or less fre-
quently, in some cases not more often than once a week, as is the case in
the Eliot School. In accordance with this usage, on Monday of last week,
Miss Shepard, a teacher in the school, was conducting this exercise, when
she observed several of the scholars vary the usual form to agree with the
Douay, or authorized Catholic version of the Scriptures. Although the
difference is very slight, it was sufficient to render the exercise dissonant
and confused. On inquiring into the cause of the change, she was told by
the scholars that their parents were unwilling they should say the common
version, and told them to repeat the Catholic. As the matter was con-
fined to two or three, it was compromised and passed lightly over. Yes-
terday, in attempting to go through the same exercises, Miss Shepard
found, instead of two or three, the majority of her class utterly refused to
comply with the general usage in this respect, although they were walling
to repeat and chant the Catholic versions. The reason assigned was that
thus they had been instructed to do by Father Wiget, of St. Mary’s Church,
of whose parish their parents wrere members. She spoke to Mr. Cooke, the
sub-master, whose room is adjoining, concerning the difficulty. Mr. Cooke
immediately told the fact to Mr. Mason, the master, by whom he wras re-
ferred to a member of the School Committee, then present on some busi-
ness connected with the building. The member of the Committee wrent to
Miss Shepard’s room and inquired into the matter more deeply. He found
the boys unyieldingly persistent in their position. Two he called to his
side, one of wrhom, Thomas Wall, a lad of thirteen, took the lead in the
difficulty the vreek previous. After some time Mr. Cooke, on going into
the room, found matters entirely unchanged, upon which he remarked that
‘ they had better be turned over to his rattan.’ The Committee then gave
young Wall into the hands of the sub-master, with direction to enforce
obedience. Mr. Cooke says he found it necessary to punish the boy
severely, which he did with a common rattan, striking him upon his hand,
but that he used no more severity than was absolutely necessary to enforce
obedience, knowing that the boy wms disobeying his religious instructors in
complying with his demands ; nevertheless, his hands were so much swollen
and inflamed at the end of the punishment, that Mr. Cooke bathed them
in cold water, and used other means to soothe the irritation.

“ During the chastisement, which w7as frequently remitted, the boy ex-
pressed a willingness to comply, but for the explicit instructions by his
father and the priest. He was told by Mr. Mason, who came into the
room at this time, that his father had told him he desired that the boy
should repeat the common versions. (It appears that there wras a misun-
derstanding in regard to this between Mr. Wall and Mr. Mason.) He at
length yielded, however*

“Itw'as thought that this example would deter the others from further

disobedience
;
but they stiil remained firm. Of course chastisement wra3



TRIAL OP MCLAURIN F. COOKE. 33

then out of the question and further punishment was abandoned. The
Committee had meanwhile found, by going from room to room, that out of

930 scholars in the entire school, upwards of 300 had been instructed in

like manner.
“ In the afternoon, Mr. Dyer, chairman of the District Committee, came

into the school and sent away about 100 who still refused compliance with
this rule. Thirty-six were sent away from Miss Shepard’s room, and
about thirty each from two other rooms.”

Cross-examined. I intended to be very particular about making my
statements. I was not so particular as I should be in recording evidence. He
told me that it was the common practice to put the boys’ hands in water. It
was my intention to give as full and impartial an account as I could from his
statements to me.

At this point the testimony was closed, and further hearing was ad-
journed until

Friday, March 25th.

The court came in at one o’clock on that day, and Mr. Durant pro-
ceeded with his closing argument as follows : —

ARGUMENT OF MR. DURANT FOR THE DEFENCE.

May it -please your Honor

:

—The spectacle which is presented to-day in
this court, is indeed novel and strange. A worthy teacher of one of our
principal public schools, who is bound by our wise and benevolent laws to
impart the great gifts of free instruction in piety and morality and learning
to his pupils, is arraigned as a criminal —arraigned by one of his own
pupils at the bar of this court as a criminal, because he has attempted to

do his duty —because he has obeyed that ancient, wise and beneficent law,
which, in words of simple and familiar beauty, enjoined upon him to “ im-
press upon the minds of the children committed to his care, those principles
of piety, justice, love of country, humanity and universal benevolence,
which are the basis of a republican government, and tend to secure the
blessings of liberty.”

He stands, indeed, before the bar of this court arraigned as a criminal,
but he stands there in proud humility, proud of his position, conscious that
in the execution of the delicate and important trusts committed to him he
has done his duty boldly and manfully, — confident that the laws will pro-
tect him, — confident that the hearts and the minds of his fellow-citizens
will sustain him gratefully, because in the hour of peril and of duty he was
true to the laws.

But this is not the whole picture. In the dark back ground are seen his
accusers

;
the real criminals, who have usurped the place and the name of

accusers. And who are they ? Some are seen and some are unseen, some
are known and some are unknown, some are seen in full view, while some
are only seen as doubtful and mysterious shadows

; but the brief, strange

record of this case tells its own significant story. For years we have en-
joyed the highest blessing which even a free government can bestow upon
its citizens, — the blessing of education, unbought, unsold, — free to all,
common to all, without distinction of birth, or sect, or race.
Under the wise and parental system of our public schools, our children

were taught together as one free, and happy, and united family. The chil-
3



34 TRIAL OF MCLAURIN F. COOKE.

dren of the emigrant and the alien sat side by side with the. son of the free-
born American, —they learned from the same book, — they shared the
same instruction, profited by the same culture,— and they left the school
together to enter upon the broad highway of life with the same lights of
learning behind them,— the same stars of hope and promise before them,
free and equal under the laws. This was the story of yesterday

;
but to-

day we find a sad and mournful and ominous change. Suddenly, — at the
absolute will of one man, — by the exercise of a dark and dangerous, — a
fearfully dangerous power, hundreds of children of tender years, children
who were living in the full enjoyment of liberty and of learning, are not
only arrayed in open rebellion against our established regulations, and in
open violation of our laws, but are deliberately taught that they are to sac-
rifice all the benefits and blessings of free education, and are led out by
their priest from the protecting roof of the school-house, to the temptations,
the dissipations and crimes of the streets. This course is even now justi-
fied and persevered in

;
the same influences are still at work in our schools,

and we are told to-day by the advocate of those deluded children, that this
dangerous and unscrupulous priest was in the right, —that the laws under
which my client justifies himself, were rightly denounced from the altar,
were properly set at defiance by the pupils, and are destructive of the
liberty of conscience, intolerant, illegal, unconstitutional, and void.
Who is this priest who comes here from a foreign land to instruct ns in

our laws ? For whom, and on whose behalf, is this charge of intolerance,
— this charge that we are violating the sacred liberty of conscience,

—

brought against the people and the laws of Massachusetts ? Can it be that
one of the Society of Jesuits is the accuser? I wish to discuss this case

as calmly as I may. I wish to say nothing to arouse feelings which cannot
easily be allayed ; but there are memories which we can never banish from
heart or brain ; there are records on earth and in heaven, which can
never be blotted out ; there are pages of history written in letters of fire,

and of blood ; and the man who leads forth his flock of children, and
boldly arrays them in open defiance of our established laws ; who auda-
ciously and ungratefully assails our established regulations as intolerant and

unchristian, and as violating the sacred liberty of conscience, would do well

to look behind him, as well as before, — would do well to pause and reflect
if he is in a position which authorizes such grave accusations, or justifies

such violence.

But I must discuss this case with more of method and order, and I will
not answer this attack upon our laws and our institutions, until I have

shown how material it is to the decision of this cause, —how vital and
deadly a blow is aimed at our institutions, our liberties, and our laws.

My client is charged with an unlawful assault upon one of his pupils.
There was a pretence originally made, that he had been guilty of needless

and unreasonable severity in enforcing the established regulation of the

school, but that pretence has faded, —and faded away into utter insignifi-
cance.

The evidence of the boy himself, and of the physician who saw him,
showed that the punishment was neither unusual nor severe.

The evidence of the boy himself showed that it was necessary he should
be punished, unless all hopes of obedience and control in that school were

to be abandoned forever. But what can be said now, after we have proved
by witness upon witness,— that gross violation of the discipline of the
school,—the indecent and riotous conduct of the children, — their wilful



TRIAL OF MCLAURIN F. COOKE. 35

and openly concerted rebellion against the masters, —that planned and
arranged conspiracy among the scholars, — that they would unite together
and overthrow the authority of the teachers, and the regulations of the

school

?

What, justification can be offered for all this, unless, indeed, the novel rule

is to be established in Massachusetts that a Jesuit can dictate from Endicott

Street as to the management of our public schools ? Unless his authority is

to be superior to our laws; — unless he can set up his will as supreme;—
unless his nod can justify any disobedience, any disrespect, any violence, on

the part of the scholars; — then it was the plain duty of the teacher to
maintain the discipline of his school ; and to enforce those rules which he

was as much bound to observe and execute as the scholars were bound to
obey.

Need I say, in a court of law, that no punishment could be severe in a
case like this? Need I allude to the authorities which give to the master
in the school room the power and the duty of a father, — the power to en-
force obedience, and punish resistance, especially such organized and open

resistance as this ? Need I remind the Court of the other facts in this case,
the authority which the father himself gave to the master to punish his

stubborn boy, — the authority never withdrawn, and never revoked ? No !
may it please your Honor, I pass by all these points, for I wish for time
to discuss the only question which requires, or deserves discussion,— the
real question in the case. And that is, whether the regulations which have
been referred to are illegal and unconstitutional ?
The laws with regard to our public schools are so dear to every citizen,

so important in our free government, that they are familiar to every one.

Free schools are established and maintained at the public charge. The
children of all citizens without any distinction whatever, are allowed to
attend them, and all receive the same course of instruction, and are gov-
erned by the same rules. The general nature of the studies is regulated by
positive statutes ; but the details of discipline, the selection of teachers, the

choice of books, and the general management of the schools, is given to
school committees, — which have large legislative, and almost judicial
powers delegated to them by the laws. The general law which regulates
the course and class of studies in our schools, is found in the Revised
Statutes, chapter 23, section 7.

It provides that upiety, justice, a sacred regard to truth, love to their
country, humanity, and universal benevolence, sobriety, industry, frugality,
chastity, moderation, and temperance,” should be taught. All these are to
be taught, but first of all, piety.

In the execution of the duty which is imposed upon our school commit-
tee, of prescribing the mode and the means by which piety shall be taught

;

in the execution of the statute of 1855, which requires that a portion of
the Holy Bible should be read daily in every school

;
and in the execution,

also, of their general duty, to direct the discipline and management of our
schools, they have passed the following regulations, which apply to all the
public schools in Boston : —

“ The morning exercises of all the schools shall commence with reading a portion
of Scripture, in each room, by the teacher, and the Board recommend that the read-
ing be followed with the Lord’s Prayer, repeated by the teacher alone, or chanted by
the teacher and children in concert, and that the afternoon session close with appro-
priate singing

; and also that the pupils learn the Ten Commandments and repeat
them once a week.”



3G TRIAL OF MCLAURIN F. COOKE.

Substantially similar regulations, embracing a part of the whole of these
recommendations, have always existed in our New England schools.
These precise regulations have existed in our Boston schools for years.
They were published widely, they were read in the schools, they were uni-
versally known, and universally acquiesced in. They were established,
not for Catholics alone, nor for the Protestants alone,—they were estab-
lished to favor no particular creed

;
no one yet has dared to charge that

they were established with any sectarian views,—they were established
for all, acquiesced in by all, — and no one can doubt that they were useful
and beneficial to all.
Had there been any feeling that these regulations were arbitrary or un-

just, — had there been any conscience so sensitive that they became a bur-
den, — had any parent, or any child, of any sect of Christians objected to
them, there was the fullest opportunity for remonstrance and redress. But
it was not so. No teacher was requested to suspend the rules, there was
no remonstrance to the School Committee, —no request to modify or
abolish these apparently wise and useful regulations,—there was no ap-
peal to the courts, which enforce the laws, nor to the legislature which enacts
them. The children obeyed without a murmur, and the parents acquiesced
either from indifference, or from satisfaction.

It was in opposition to these regulations so long obeyed, so long ac-
quiesced in, under which year after year our Catholic citizens with pride
and satisfaction saw their children receiving and sharing with all others
the benefits of a free and liberal education, that it has been found neces-
sary to resort to open violence, to a deliberately planned and arranged
rebellion against the discipline and authority of our schools,— a rebellion
which might gratify the ambition or aid of the far reaching designs of the
priest, but could only end in the ruin of those misguided children, who
were at once their tools and their victims. These are the regulations, and
this is their history.

And now, since it so plainly appears that my client was justified in pun-
ishing this deliberate and wilful rebellion against these rules so long estab-
lished, so long acquiesced in, so long a part of our invaluable public school

system, the counsel for the prosecution are forced to take the ground that

these laws and regulations themselves are illegal and unconstitutional.
The Court cannot have forgotten the very able and learned opening

argument of the counsel for the prosecution. The issue is plainly made
by him, that the regulations which I have read are illegal and unconstitu-

tional, and therefore I cannot avoid it or refuse to meet it, if I would. His

general argument, if I understand it correctly, is this : —
Our Constitution declares that every citizen shall have full liberty to wor-

ship God according to his own conscience.
The statutes of 1852 required that children should, for at least three

months in the year, attend some public school.
All citizens are taxed for the support of public schools, and, therefore,

have equal rights in them.
To require the scholars to repeat the Ten Commandments infringes upon

their liberty of conscience, and the rule is, therefore, unconstitutional.
Any attempt to enforce an unconstitutional law is illegal, and any pun-

ishment whatever, for a refusal to obey such a law, is illegal.
If these arguments are sound and unanswerable, then the Bible must

indeed be banished from our schools forever.
If a Catholic child not only has a right, but is bound by law to attend



TRIAL OP MCLAURIN F. COOKE. 37

school ; if, because all citizens are taxed, he has the rights which are now
claimed, and if what he chooses to call his scruples of conscience, are to

be obeyed — then he is not obliged to recite nor to hear the Ten Command-
ments

;
he is not obliged to repeat nor to hear the Lord’s Prayer ; he is

not obliged to read the Protestant Bible nor to hear it read ; — either
would offend his Catholic scruples — all are violations of his liberty of
conscience.

This is indeed a great question, — the greatest and gravest question, in
my judgment, which this Court will ever be called upon to determine; and
as it is now for the first time presented here, it is fit that it should be seri-
ously and solemnly discussed, and that it should be met and decided upon
those broad principles of justice and lawT which will satisfy all good citizens
of every sect and race, all who love and are willing to obey our laws. No
one who knows and cherishes the history of our country, — no one who
watches now, with fear and hope, the dark and threatening signs of the
times, —no one who reflects upon those essential qualities, those cardinal
virtues in the citizen, upon which alone a republican government can be
founded, and by which alone it can be sustained, —but must feel and know
that this is a question, the importance of which cannot be overrated or ex-
aggerated ; — a question which must be met boldly, fearlessly, and with
entire frankness; —a question which requires very plain dealing, and jus-
tifies very plain speaking also.
My own wish is to avoid all extreme grounds, and to avoid all questions

which will widen the threatened breach between our citizens. I chiefly
desire to speak to the complainant, who has been instigated to bring this
case before the court, and to his brethren and friends. I speak to the
alien, the emigrant, and the exile, who have found refuge here from the
wrongs and oppressions of the Old World. I appeal to them at once, and
forever, to abandon as most dangerous and most injurious to the true wel-
fare of their children, the counsels of those who would array them in oppo-
sition to the laws, who would teach them to separate their children from
those free schools where all meet beneath the same roof, speak the same
tongue, learn from the same books, and enter together the great republic of
letters.

I appeal to them, to disabuse their minds of the prejudice that their lib-
erty of conscience is to be invaded or violated. No intelligent Catholic
parent really believes it or fears it for a moment. I appeal to their own
cherished hopes and vrishes for the welfare of their children whom they
love. I appeal to their experience of past years, and to the bitter lessons
of these past few days. I ask every parent to look back upon his own
life, upon his own daily sorrows and regrets that a free school was never
open to himself, and then to decide whether he will sacrifice his children
also — whether he will dare, at the bidding of priest or politician, to leave
his offspring in the shadow of that same darkness ; and sadden and darken
their lives by the same cloud of ignorance which has overshadowed all his
own weary, hopeless days.

Unless I can support and sustain these rules as consistent with freedom
of conscience —as consistent with the purest spirit of religious toleration
unless I can show our adopted citizens, our adopted brethren, that side by
side our children can consistently and properly receive the education which
the laws give freely and equally to all — unless they can join their little,
hands, and lift their young hearts in common prayer to the Father of the
fatherless, then these regulations will no longer be defended or justified
by me.



38 TRIAL OF MOLAURIN F. COOKE.

Need I deny the unjust charge that the laws of our free Commonwealth
are hostile or severe, to our adopted citizens ? Need I say that ours are no
inhospitable or unfriendly shores ?

Every western breeze that finds its unseen path over the wide Atlantic,
bears an invitation across the ocean, welcoming the exile and the alien, the
poor and oppressed of every clime, to the land of the free. Our freedom
is our birthright and our inheritance; broad as our land, free and unfet-
tered as the wand, which sweeps from one ocean to the other. And this
our birthright and inheritance which our fathers purchased with their
blood, we offer to all and willingly share with all. In the Old World the
inheritance of the people is the heavy burden of that feudal system, under
which the lands and the titles, the wealth and the power are held by the
nobles, and transmitted to their children generation after generation. The
sons of the soil are bowed down by labor, and the sweat of their toil drops
upon fields they can never hope to win or claim as their own.

Learning there is the inheritance of the rich only, and is not for the
poor

;
they must bend their backs and bow down towards the earth, nor

dare to look upwards to the broad sunlight of God’s eternal sky
;
they must

bow down their hearts and minds to endless, hopeless toil, nor seek to share
in the eternal light of learning and knowledge, which God has given for all
his children. The holy stars may shine forever in that far-off sky, but
dark clouds are floating there between. They must not look up to that
serene sky, must not look up to those far-off stars ; their life must be sub-
mission and despondency, not aspiration.
What wonder, then, that every white-winged vessel which leaves the Old

World bears its band of emigrants and exiles, looking forward towards the
promises of the West; towards the hopes and promises of that beautiful
clime which they dream of far away beneath the vanishing glory of the
sunset, — looking forward to a new home, — to a freer land, — to a brighter
sky. And when the long voyage ends at eventide, — when at sunset, the
stately ship furls its white sails in our fair harbor, they see before them in
the western sky the golden gates of their new world, the golden gates of the
new El Dorado, — not the fabulous clime of rivers flowing over golden
sands which tempted avarice in earlier days, but the true El Dorado of
men

,
— a land where the soil is free, — where the laws are equal, — where

the sunshine of liberty and of learning glows for all, blesses all. The emi-
grants of to-day do not come as conquerors like the adventurers of an
earlier time. They do not come the soldiers of a foreign prince, to extend his
dominion, or plant his standard on our free shores. They come as friends,
as guests

;
they come as freemen. The emigrants of to-day do not bear the

banners of Castile and Aragon. The oriflamme of France does not float
above their heads, nor does the meteor flag of England lead them onward

now, but in the western sky float the banners of the Almighty, blazoned

there in purple and gold of sunset, and inscribed thereon, in letters of

light, is the sacred word of liberty.
But there is a voice of warning as well as a voice of welcome for the

emigrant and the exile who leaves the Old World, with its wrongs and its
memories behind him. As he is borne along over the wild wide ocean, he
can bury there all memories of the tyranny and oppression which made
life a burden. He has left behind the heavy yoke of poverty, the despair
of ignorance, the degrading distinctions of birth, the unequal laws which,

with every rising and every setting sun, made him feel the bitter truth of
the curse, “ in sorrow shalt thou eat of it all the days of thy life.”



TRIAL OP MVLAURIN P. COOKE. 39

A new life opens before him on our wave-worn shores. Here is a new
home where the laws are equal for the poor and for the rich. Here he can
win wealth and honor. Here he can be one of the citizens, one of the
rulers

;
here education, and honor, and power, and wealtii are open to all

;

and in the free air, the new life, the loftier aims, the higher aspirations of
the New World, all the wrongs and sorrows of the past can be forgotten.
But as he buries beneath the dark waves the sad memories of the Old
World, let him tind a little room there for liis chains also.

There is ample room beneath our wide free sky for all races, for all sects,
for all churches. The stately towers of the Roman cathedral, and the plain
white spires of our New England meeting-houses, pointing from the quiet
graves of our fathers heavenward, need never encroach one upon the other.

There is room for all beneath our wide blue sky.
We give the widest toleration to all nations, to all creeds, all opinions ;

but there is one power, one tyranny which cannot cross the ocean, and that

is the tyranny of one man, whether his head is encircled with the monarch’s
crown, or the bishop’s mitre. Bury those heavy chains, then, beneath the
dark waves, and as the waters close over them, forget the bondage as well
as the sorrows of the past.

Ours is a government of the people, —a government of men, but of free
men, — and that dark and dangerous power, which, under the guise of relig-
ion, would grasp the sceptre of the State, can never, never be tolerated here.
That plant is not native to our clime, — it can never flourish in our free
soil, — its breath is poisonous to our laws, and death to our liberties, — the
dream must never for one moment be indulged, that one man, whether he
speaks from the Vatican or from the altar, is to rule the destinies of our free
people, or to dictate their laws.

We received that warning long ago, in the Farewell Address of him, whom
we love to name as the father of our country. It was Washington who said
to us: “Against the insidious wiles of foreign influence (I conjure you to
believe me, fellow-citizens) the jealousy of a free people ought to be con-
stantly awake, since history and experience prove that foreign influence is
one of the most baneful foes of republican government.” Our liberties are
our inheritance, and neither foreign power or foreign influence can lay sac-
rilegious hands upon them, — sacred alike from the warrior’s sword and
from the priest’s influence. Aliens and exiles are welcome to our shores ;
we will share our birthright with them, and inscribe their names on the
great roll of free citizens; but they must come as men, and as free men,
not as priest's men

;
and it is no empty form, no meaningless oath which

compels them, before they can become citizens, to renounce all allegiance
to any foreign power whatever, to all power but the laws. There is a voice
of warning, too, which the priests must submit to hear, a voice which is
already rising in low mutterings, far and wide over the land, — a warning
which, unless they hold back their audacious hands, will gather and swrell
until it breaks in thunder above their heads. It is now only the little cloud
seen afar off over the sea no bigger than a man’s hand, but it will widen
and roll on until it becomes a storm and a whirlwind, which no power can
control or withstand.

I speak, then, to the emigrant and the foreigner, whom we welcome to
our shores. I desire to show to them and to all who hear me, that the use
of the Bible in our schools, — the teaching of the Commandments, — the
recital of the Lord’s Prayer from it, are consistent with the true principles
of religious liberty and toleration. I do not speak of casuistry, or of scru~



40 TRIAL OF M^LAURIN F. COOKE.

pies more intolerant than intolerance itself, or of subtle and specious doubts.
I speak of religious liberty in a land of law, and liberty of conscience in a
government of freemen.

Let us go back for a moment to first principles
;

let us endeavor to get
clear ideas, and examine briefly what is the meaning of these noble words,— a government of freemen, — freedom of conscience, — liberty under the
laws. The truth is, that our people are so wholly free that we hardly real-
ize or appreciate what is meant by government and law. Our consciences
are so untrammelled that we are unaccustomed to reason or reflect upon
what freedom of conscience is, and in what it consists. We forger that the
very essence and foundation of all government is religion ; and yet the
truth exists, as old as the primal stars, that a government without religion
is as impossible as a universe without a God. We must remember that we
are not dealing now with questions of fleeting opinion, nor with transitory
laws, which change and vary as society changes, suiting themselves to the
necessities and wants of social progress and social change. We are reason-
ing upon those elder and fundamental truths which lie at the very basis of
all society, all governments. We are studying the deep bases of the ever-
lasting hills. We are questioning those primeval rocks, more enduring
than the mountains which soar above them

; which time, nor seasons, nor
changes, nor decays, can alter or wear away.
The first great truth, then, which we must reflect upon and appreciate, is

this : that religion is the essential foundation of all government, the source
and sanction of all power. This is the united voice of all true philosophy,
of all true statesmanship, — it is the lesson and warning of history, and the
universal experience of the civilized world. Need I remind you, sir, of
the latest, the darkest lesson of the eternal truth, — that a government
without religion is a hopeless impossibility? Need I remind you of that
government without religion, founded only upon pure reason, based upon
the laws of man, — that government, inaugurated with more than bridal
pomp and festivity, with songs, and feasts, and dances* when the. Goddess
of Reason was the symbol and the representative of a new era, and in tri-
umph led on the choral dance, which ended in the red dance of death, — in
the fearful night and darkness of the “ Reign of Terror.”
May it please your Honor, our government is based upon religion, upon

the Christian religion, and it is a vital and essential part of the law of the
land.

Not the Christianity of any particular sect or creed, but the broad, pure,
living Christianity of the Bible; — we cannot open our statutes without
meeting with the proof of it. The Bill of Rights, to which the prosecution
appeal, commences with a solemn appeal to the Christian’s God, — the
observance of the Christian Sabbath is enjoined, and profanation of it is

forbidden by numerous statutes. Blasphemy against Cod and our Saviour
are crimes punished by law. The oaths which are the protection of prop-
erty, recognize it, and all our laws flow from it, and are consistent with it.

I might quote from our law books ; I might read Blackstone and Story. I
might show that all great jurists recognize this grand truth. I might show
that all writers upon municipal law acknowledge it ; but I have a higher

authority to which I wish to refer. Let me ask you, sir, to hear a voice
from the dead, the fittest Oracle of this great living truth. I desire to read

the profound and eloquent words of that great statesman, who sleeps well
after his long labors, with the solemn voice of the ocean he loved, as his

requiem, — on the lonely shores of Marshfield : —



TRIAL OF MCLAURIN F. COOKE. 41

There is nothing that we look for with more certainty than this general princi-
ple, 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 Pennsyl-
vania Quakers, the Baptists, the mass 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 among t men at all, this
sentiment incorporates itself with the law. Every thing declares it. The massive
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 mementoes and memorials around and about us ; the conse-
crated graveyards, their tombstones and epitaphs, their silent vaults, their moulder-
ing contents — all attest it. The dead prove it as well as the living.

“ The generations that are gone before speak to it, and pronounce it from the
tomb. MVefeel it. All, all proclaim that Christianity, general, tolerant Christianity,
Christianity independent of sects and parties, that Christianity to which the sword
and the fagot are unknown

;
general, tolerant Christianity is the law of the land.”

And now, with this lamp to guide our feet, let us inquire what is the
meaning of liberty of conscience under the law ? Our Constitution
declares, that

k<
it is the right as well as the duty of all men in society,

publicly, and at stated seasons, to worship the Supreme Being
,
the great

Creator and Preserver of the universe. And no subject shall be hurt,
molested, or restrained, in his person, liberty, or estate, for worshipping

God in the manner and season most agreeable to the dictates of his own
conscience, or for his religious profession or sentiments, provided he doth

not disturb the public peace, or obstruct others in their religious worship.”

What is the meaning of those noble words, in a land of liberty, in a
country where Christianity is a part of the law of the land ? Does it
mean that nothing shall be tolerated by law, nothing shall be sanctioned by
the law, nothing shall be paid for by taxation, nothing shall be submitted
to, and obeyed by the citizen, excepting what satisfies the scruples of his
own conscience ? The Jew reviles Christianity and. the New Testament,
and teaches his children that our Saviour was but an impostor. And yet
he is taxed for the support and execution of the laws which will punish
him with a felon’s cell if he dares to reproach the name of Christ, or
blaspheme the Holy Scriptures. Nay more, although the Christian Sab-
bath is a stumbling block and an offence to him, although every Christian
Church is hateful to his sight, he is obliged, with certain exceptions, to
respect the laws for the observance of the Sabbath, and is obliged to pay
taxes for the support and maintenance of that government, of which
Christianity is a vital and essential part.
Need I multiply instances? The Hindoo and the Mahomedan, the Pagan

and the Atheist, all can be citizens, all are entitled to freedom of con-
science

;
and yet in every transaction of life, in every function of govern-

ment, in every act of obedience to the laws, they are obliged to submit to
and obey the rules of that Christianity which is an offence to their con-
science. Is there any inconsistency in this ? Is this inconsistent with true
religious toleration ? By no means. The answer to the question lies
plainly before us. Every man may worship God according to his own con-
science

;
for his religious belief or disbelief he is not accountable to any

human tribunal. The laws impose no form of faith upon his conscience,
he is to subscribe to no articles of belief, he is to surrender his faith to no
creed, he is to join no sect. Atheist or Pagan, Catholic or Protestant, he
is free to believe or disbelieve according to his conscience

; and for his
faith or his infidelity there is equal toleration. But apart from this, and
beyond this, he must submit to the general laws of the land, and just in



42 TRIAL OF Mc’LAUItIN F. COOKE.

the same manner that while we declare that every citizen, although free,
must submit to numerous laws which do interfere with and infringe upon
his liberty

;
so does every citizen find in the operation of general rules,

in the compromises of life, in the necessary concessions of a society reg-
ulated by general laws, much that is offensive to the scruples of his con-
science, much that he must submit to and obey, although no laws compel
him to believe.
Many good and virtuous citizens look upon war as a crime against God

and religion ; and yet they are taxed by their country to supply the very
sinews of that war, which they believe to be unholy. Atheists believe
that the observance of the “ Lord’s Day ” is an idolatrous superstition,
injurious and offensive to morality

;
yet the disciples of Paine and Volney,

however it offends their consciences, must cease from labor, and, in all but
worship, must observe and keep it.

I repeat, that it is idle and in vain to say that liberty of conscience in
one citizen means the submission to his scruples on the part of all others.
It is in vain to say that in a country of free but divided opinions, nothing

shall exist which is not offensive to the consciences of many.
And here let me pause to say, that the danger to our country to-day

does not lie in intolerance, nor in disregard of the liberty of conscience.

It lies in an unreflecting and timid fear of intolerance. We forget our
watchword, that “ eternal vigilance is the price of liberty.” We do not study
nor reflect upcn those essential principles upon which our free government
is founded. We are so much in fear of intolerance to Catholicism, that we
become intolerant of that pure and true religion which is the sole safe-
guard of our liberties, without which our loved and cherished republic
will vanish away — a beautiful but fleeting dream.

But I must not dwell too long upon the examination of these general
principles, which demand more ample illustration than the present discus-
sion will allow. I wish to come more closely to the particular question
which is to be decided by the light of these general principles.

My first proposition has been that the Christian religion is a part of the
law of our ancient Commonwealth.
My second proposition was that true liberty of conscience and true tol-

eration of all forms of belief can exist consistently with that lawr .

My third proposition is, that piety and morality are to be taught as a
part of education, and that this is not inconsistent with religious toleration,

or entire liberty of conscience.

This is a question which involves a wide range of discussion, much
wider than can be entered upon here, where it must be decided as a ques-
tion of authority, of law, and of government, rather than as a question of

ethics, or philosophy, or religion.

I am not speaking of private schools, established by any sect, supported
for any special object or purpose. I am speaking of those public schools
which are established and supported by the government, as great public

institutions and charities — institutions for which it is lawful to levy taxes
upon the citizen — charities, in the true legal meaning of the word, which
are recognized as a part of the institutions of the country, and protected

and supported by its laws.
If my first proposition is true, that our government is based upon reli-

gion, that Christianity is an acknowledged and recognized part of our law,

does it not follow, as of inevitable necessity, that in every school founded

by government, established and supported by government, religion should



TRIAL OF MCLAURIN F. COOKE. 43

be recognized, and piety should be taught ? I need not repeat, sir, that I

speak not of any sect, or church, or creed, nor of any form of faith. I
speak of those principles of true piety and religion which have existed
from the hour when the morning stars sang together — from the hour
when God said, “ Let there be light ” — piety eternal as the stars, religion
pure and holy as the light of Heaven.

One of our most eloquent orators has told me that many years ago he
met Mr. Webster in London, and conversed with him upon the future
destinies of our country. Mr. Webster spoke despondingly of our future.
Have you no hope, sir, in our education ? He shook his head sadly, with-
out a reply. Have you no hopes then in the religious education of the
people ? His whole noble face lighted up, as he acknowledged that this
was the one bright star, yet shining for his country

;
and he then expressed

his intention of one day laying before his countrymen his long-treasured
thoughts upon that great subject. How well that promise was kept his
countrymen well know. Mr. Webster’s great oration upon the “ Religious
Instruction of the Young” remains to-day the noblest monument to his
fame, the truest mirror of his character. Those who remember him only
in the heat and dust of political strife, or in his great contests at the bar,
know nothing of him at all.

I remember it as one of the fortunate occurrences of my life, that I
heard Mr. Webster address the Supreme Court shortly after the death of
the Hon. Jeremiah Mason. He spoke with earnest feeling of his early
friend, of his deep religious belief, of his awful reverence for the living

God; and as he dwelt upon that great theme — as he by way of contrast
spoke also of a man without religion, a man whom the Scriptures describe
in such terse but terrific language as living “ without God in the world,”
— as he declared the great truth that “ religion is a necessary and indis-
pensable element in any great human character,” it seemed as if the true
great soul of the speaker himself was revealed

;
as if inspired by his

theme, he had for once laid open and displayed the profound mysteries of
his own consciousness of his inner self and of his own lofty and usually
inscrutable being. It seemed as if the clouds which enfolded the lofty
summits of the mountain had for a moment rolled away, and the lofty
peaks were visible, radiant in their serene and sublime majesty, aspiring
forever, soaring forever upward towards the everlasting heavens. I believe
that in that one moment I obtained more insight into that great nature than
years of familiar intercourse would have given. And I believe, too, that
his serious and solemn convictions, his highest hopes, his noblest thoughts,
are more fully recorded in the great oration of which I have spoken, than
in all the rest of his published works.

Will your Honor allow me to detach two or three thoughts from that
powerful argument, which are particularly appropriate to the subject of our
discussion ? He says, with great emphasis, —

“ I do say, and do insist, that there is no such thing in the history of religion, no
such thing in the history of human law, as a charity, a school of instruction for chil-
dren, from which the Christian religion and Christian teachers are .excluded as unsafe
and unworthy intruders.”

Again he says, —
“ This scheme of education is derogatory to Christianity, because it proceeds upon

the presumption that the Christian religion is not the only true foundation, or any
necessary foundation of morals. The ground taken is, that religion is not necessary
to morality

; that benevolence may be insured by habit, and that all the virtues may



44 TRIAL OF MCLAURIN F. COOKE.

flourish and be safely left to the chance of flourishing, without touching the waters
of the living spirit of religious responsibility. With him who thinks thus, what can
be the value of the Christian revelation ? So the Christian world has not thought

;

for by the Christian world throughout its broadest extent, it has been and is held as
a fundamental truth, that religion is the only solid basis of morals — and that moral
instruction, not resting on this basis, is only a building upon sand.”

I might multiply authorities of wise and learned men upon this question

;

but it is not necessary. Can it be argued for a moment, that in educating
a child, to whom God has given an immortal soul, as well as intellectual
faculties, it is the duty of the state to cultivate the one and leave the other
in darkness ? Above all things, in a republic which exists only, which can
be maintained pnly, by the virtue of its citizens, — can it be argued that it
is the duty of the state to teach every thing but these very virtues upon
which its existence and well being depend ? Will it be said that it is the
duty of the state to educate its citizens, but that those very virtues which
alone are useful to the state itself, — those virtues which tend to secure
the blessings of liberty,” — shall be a sealed book — shall be forbidden
forever, banished forever from the schools ? If self-preservation is indeed
a law of' nature, shall not the state be allowed to preserve itself, not by
war, not by proscription, not by force, but by instructing its children in
piety, and morality, and pure religion ? But I must remember that I can-
not discuss this question here, as a question of morality, of philosophy, or

of religion. I am here only to defend and justify an ancient law of the
Commonwealth, which prescribes, in so many words, “ that piety, justice,
humanity, and universal benevolence shall be taught in our public schools.”
The principles for which I contend would justify laws far more general

and comprehensive than this
;
and I look for the hour when they will be

enacted, but this is the law of to-day ; and I believe that no one will be
bold enough to deny its obligation or its justice.

This law to which I have referred the Court is but a reenactment of a
more ancient statute. It was sanctioned anew in the revision of our laws,
and is now found in chap. 23, sect. 7, of our Revised Statutes.
May it please your Honor, we have advanced thus far in the argument,

and we find that it is a positive law
,
which neither teacher nor scholar can

evade, that piety shall he taught in our public schools, and I turn now to my
adversaries, to ask the question that terminates this controversy forever, —
from what book is piety to be taught in a Republic where Christianity is a
part of the law of the land ? Is it to be taught from Confucius, or from the

Vedas and Puranas of the Hindoos ? Shall Plato be our instructor in piety,
or shall we go back to Zoroaster ? No, sir, there is but one answer that
can be given. No skill of the opposing counsel can evade it. And I feel
that he will not, and dare not attempt to answer it. What course he may take
in his argument I cannot anticipate, but this I know, that he will pass this
question by in prudent silence. And yet the whole case turns upon this
one question, and it must and will be answered. No craft of the Jesuit
can avoid it. No form of words can conceal it. The answer comes from
every lip, Catholic as well as Protestant, — it comes from the altar, from
the pulpit, and from the statesman’s closet, — from the street and from the
fireside, — from the heart of every mother, from the lips of every child.
There is but one book from which we dare teach piety, and that book is
God’s Holy Bible.

It would seem that by slow steps we are somewhat advanced in this our
investigation. We have found that all government is based upon religion.



TRIAL OF MCLAURIN F. COOKE. 45

That the government of our free republic is based upon the Christian re-
ligion, and that it is a part of the law of the land — that in all public edu-
cation given by the state to its citizens, it is essential that morality, religion,

and piety should be taught — we have found this principle to be recognized
by our laws and enacted as a positive statute ; and the only question re-
maining is from what book are we to seek this instruction, — if that indeed
can be called a question which admits of but one answer, — which answers
itself. And here I might well pause, if this great point is established, —
for when this is settled all the conclusions follow, of necessity, — but
there are many points raised, many arguments advanced, which I must
attempt to answer.

It will be said, perhaps, we do not object to your use of the Bible —
we object only to the common English version of it. I feel constrained to
say that I cannot believe this is the true question. Unless I misunderstand

wholly a late letter from the Bishop of Boston, if our regulations required

the pupils to read the Douay Bible together, to recite the Ten Command-
ments together, to repeat the Lord’s Prayer, or chant the Psalms of David
together, even although they were to use the text of the Douay Bible, it
would be a “ brotherhood in a simulated union of prayer and adoration,
which his church expressly forbids ” * — but this may not be the ground
taken by the counsel here, and I will therefore attempt to answer the sug-
gestion that our common version should give place to the Douay Bible.
And the first answer is, that, as some version is to be taken, as the Bible
in some translation is to be used, as there is a difference of opinion as to
which is the best, the question must be decided by that tribunal to which
the laws have intrusted the decision. The school committee are by law
required to select and decide upon the question of the books to be used,
and they have determined this question. The common version is by an
express statute to be read daily, and the committee have used and adopted
the same version for all other purposes.

I uphold and justify that decision upon many grounds
;
and I say first to

these gentlemen who are so earnest for toleration, who are so fearful of
sectarianism, that I object to their Douay Bible because it is avowedly a
sectarian book

,
written and published with that acknowledged object. Our

Saxon Bible never has been, never can be sectarian. It is quite worthy
of remark that at this hour it has no express sanction of any sect or of any
church. No creed can claim it as peculiarly its own

;
it is the common

property, the common heritage of all. Nay, more— it is well known there
are more real and essential differences of opinion between the various
Protestant sects, as to the correct translation of various important texts,

than between the Catholics and the Protestants. But for all that, this ver-
sion is — with one exception only — accepted by all sects of Christians
who speak the English tongue, as a translation sufficiently correct, — not
for sectarian arguments,—not for disputes upon points of doctrine, — not for
creeds or schisms, — but for the common and daily use of Christians for
instruction in piety

,
in morality, and in that pure religion which is high

above sects and doctrines, as the stars are above the earth ; and for this
very reason, — because the Christian sects, who differ upon so many points,
are with one exception willing to unite upon this version, — is it fitting and
proper that this should be adopted. It was the English Bible centuries ago.
The descendants of Englishmen still cherish it. It has been the American
Bible for centuries also. The Catholics who have emigrated found it here

* Letter from the Bishop of Boston to the School Committee.



46 TRIAL OF MCLAURIN F. COOKE.

when they came, found it here as the people’s Bible
;
found it here in the

schools which they came to share with us. These reasons alone should be
sufficient, but there are other reasons also for the use of our Bible which
will, I am sure, appeal to the heart and the brain of every foreigner who
sends his children to our public schools.

I appeal to their gratitude now, to their sense of honor now, as I would
appeal to their generosity, if it were necessary, and ask them if they would
wish to come here to share our freedom, to ask our hospitality, to enjoy the
liberties — the free education— the institutions which our fathers purchased
at such a price, and then take our Bible away ? It was to read that Bible
in safety that our fathers came to this cold and barren shore — that Bible
lay in the narrow cabin of the “May Flower” — it was the only star that
shone for the Phritan in that long night of toil and strife, and famine, which
well nigh ended in despair. It was with hands clasped above that Bible
that Washington prayed in his tent, through those seven long years of doubt
and distrust, when the “ God of Battles” alone sustained him. It has been
the household god of the school-room from the infancy of the country.
The schools which made us free, winch will make worthy and true citizens
of your children, have grown up under its influences. And will you take
it from us now ?

It is difficult to discuss this question calmly. I imagine that feelings

which it is best not to express, are aroused in the heart of every American
who is told that we must justify or defend the use of our old Saxon Bible.
I will not trust myself to express them. I will ask for any reason for re-
jecting our common familiar version and for substituting another in its
place. If this were a fitting time or place, I should be very willing to dis-
cuss the comparative merits of the two versions, either as literary produc-
tions, or as faithful translations. The Douay Bible has its history too, of
which I should be very willing to speak if it were proper to do so, but this
is not a suitable occasion.

May it please your Honor, I ask now for a single candid objection to the
use of King James’s Bible — not the Protestant Bible, but the Christian
Bible — the Saxon Bible, which we love. Are the particular portions of
it which are used in the schools objectionable ? Our children are to learn
piety from it, not sectarianism, or creeds

;
but pure religion, undefiled before

God. They are to learn from it piety, a sacred regard to truth, justice,
chastity and humanity. Was it from sectarian views that the Lord’s Prayer
and the Ten Commandments were selected as fit lessons of these cardinal
virtues ? What sect, Catholic or Protestant, has received the monopoly of
these portions of God’s Word ? What priest or preacher can call them
his own ? Are they indeed offensive to the tender consciences of children ?
Is it indeed dangerous that they should hear or repeat them ? I am in-
clined to believe that no one who has heard the evidence of the father or
his boy, would be willing to say that it is either unnecessary or very dan-

gerous to repeat to either of them the divine injunction, “ Thou shalt not
bear false witness.” Does bishop or priest dare to say that it would be
dangerous to repeat to the children those sacred portions of the Bible ?

Can it be that even bigotry and fanaticism would take exception to the
prayer which Christ taught us — to the tables of the law which Jehovah
himself gave to his children on Mount Sinai ? Is it one of that order of
priesthood which has assumed to itself the name of the “ Society of Jesus,”
who has found it a necessity of Christian duty to forbid his followers from
repeating the Lord’s Prayer? Has he forgotten that it was Jesus who
said, “ Suffer little children to come unto me andforbid them not”? Jesus,



TRIAL OF MCLAURIN F. COOKE. 47

who bade his disciples go forth into every land and teach the Gospel to
every creature, — that he dictated to his disciples the lofty worship, the
simple and pathetic beauty of that miraculous prayer, in which all the na-

tions of the earth might together lift up their hearts to God without re-
membering any distinction of sect, or race, or creed ? Subtle and artful as
men have been in raising doubts, untiring as they have been in creating
differences of opinion — no sect, no dogma, has yet been founded upon that
marvellous, that inspired prayer, which in its divine sweetness and purity
embraces in itself the whole Christian religion, and the universal worship of
God— that simple but sublime prayer in whose thanksgivings still linger
the tender tones of a gentle mother’s voice teaching it at eventide; the sweet,

natural music of home. - Was that priest unwilling that his flock should unite
with the children of heretics, and joining their hands and their hearts, say
with them, “ Our Father which art in Heaven, hallowed be thy name?”
Was he unwilling that the children of the Huguenots and the Puritans—
the children of those Protestants who remembered the mountains of Pied-
mont and the Waldenses —who remembered the night of St. Bartholomew
and the fires of Smithfield—should join with his flock, and say, “ Forgive
us our trespasses as we forgive those who trespass against us ” ? But it is
said there is a difference between the Catholic and Protestant version of
this prayer. I have not forgotten it

;
it will be very long I think before I

shall forget it, or forget that in the book which was produced here in court,
the hands of some little fanatic, who had been taught hatred and bigot-
ry under the name of Christianity — or of some priest who feared for
the tender consciences of his flock, had carefully and industriously oblit-
erated the closing words of the prayer, “For thine is the kingdom, and
the power, and the glory forever. Amen.”
Are those reverential ascriptions of praise dangerous and heretical ? Is

the worship which acknowledges our Heavenly Father as the Source of all
power, as the Ruler of the Universe, — is that worship to be denounced
and proscribed by one who calls himself the priest of the living God ?
Was it for this that he gathered the children of his flock together, and by
threats of a shameful exposure from God’s altar, persuaded them to violate
the laws of their country,— persuaded them to rebel against their teachers,— persuaded them to sacrifice the great gifts of education ?
How vain and how shallow are such pretences. How trifling and im-

material are the verbal differences which are now insisted upon. Does
any one fail to see that this movement is only a settled, and determined,
and preconcerted opposition to our Holy Bible ? Does any one fail to see
that it is because the Prayer is read with Protestants, that the Catholic
children are forbidden to join in it, — that the Catholic priests are resolved
to banish it from our schools? This is the ground which the Bishop of
Boston has openly taken in his letter to the school committee, and although
we can see that the counsel for the prosecution will not be bold enough to
take it here, we can all very plainly see that it is the great and the real
objection. Can there be any more sincere ground of complaint because
the children were called upon to repeat the Ten Commandments? Are
the lessons of piety and morality which they teach offensive to the con-
science or sinful to hear ? Have these divine commands lost any thing of
their obligations in the progress of civilization ? Has their sublime moral-
ity lost its virtue ? Is there one Commandment which to-day any Christian
of any sect dare disavow ?

Over three thousand years ago these tables of the law were delivered



48 TRIAL OF MCLAURIN F. COOKE.

from Mount Sinai by our Heavenly Father, —when the “mountain burned
with fire into the midst of Heaven, with darkness, clouds, and thick dark-
ness,” — when Jehovah said unto Moses, “ Gather me the people together,
and I will make them hear my words, that they may learn to fear me all
the days that they shall live upon the earth, and that they may teach their
children.''’

Has that divine injunction lost its force ? Is jt useful at this hour to
teach those divine precepts ? Would it wound the tender conscience of
children to be taught those ancient and holy commands ? Is any intelligent
Catholic parent really unwilling that his child should repeat them ? Who
that has watched the signs of the times, — who that has watched the winds,
and the waves, and the dark clouds which drift along our stormy sky, fails
to see the object and end of all this movement ? No, no, there i3 no fear for
the consciences of the children

;
the real objection is to the Bible itself,

for, while that is read daily in our schools, America can never, never be
Catholic. I am told that the most zealous of English Catholics acknowl-
edge that England can never be Catholic so long as they keep their Saxon
Bible. Of its power over the hearts of the people, an Englishman has
most truly and eloquently said : “ King James’s version lives in the ear of
a Briton, ‘ like music that can never be forgot ; like the sound of church
bells, which the convert hardly knows how he can forego. Its felicities
seem to be almost things, rather than mere words. It is a part of the
national mind, and the anchor of national seriousness. The memory of
the dead passes into it. The potent traditions of childhood are stereotyped
in its verses. The power of all the griefs and trials of man is hidden
beneath its words. It is the representative of his best moments, and all
there has been about him of soft, and gentle, and pure, and penitent, and
good, speaks to him forever out of his English Bible. It is his sacred
thing, which doubt has never dimmed, and controversy never spoiled. In
the length and breadth of the land there is not an English Protestant with
one spark of religiousness about him whose spiritual biography is not in
his Saxon Bible.’ ” Yes, all that is true ! True for Englishmen to-day,
but how much more deeply and dearly true for us ?
Of all the wealth of happy England, of all their birthright and inherit-

ance this sacred book was all that our ancestors brought with them to these,
then barren and unkindly shores. They left behind them their lands, their
wealth, their titles, their kin, their country, and the sweet memories of
home. It was to read this Bible aright ; to learn from it the mysteries of
the living God, that they gave up all which man holds sweet and cherished

;

and does any one dare now to hope that this Book will be driven from our
schools ? Never ! never ! The sun may turn back in its course, the stars
may fall as the leaf falleth from the vine, and the heavens may be rolled
together as a scroll, but until we have sold our birthright of freedom, never,
never will the descendants of Englishmen consent that the Saxon Bible
shall be banished from their free American schools. But I may be told
that our fears are groundless ; that they do not object to our Bible, but to

the particular use made of it in this particular case. We are not to be
deluded by such specious arguments. We well know the foe with whom
we deal

;
they will be content with any step in advance, if it be but the

thousandth part of an inch, and bide their time for the next step.
This is no time for timid concessions, no time for politic compromises ;

the enemy are to be met at the gates. We see through their plans, and
strip off their plausible disguises. I repeat, that their objection is to our



TRIAL OF MCLAURIN F. COOKE. 49

Bible, our whole Saxon Bible, and they cannot consistently stand upon any

other ground. Why do you object to the Lord’s Prayer, and to the Deca-
logue, and the reading of the Scriptures ? Because you say “ it offends

our consciences.” “ We believe it is not the true version of the Word of
God that version is “ used as a means of attack upon our tenets.” “ The
form and words are offensive to the conscience and belief of the Catholics.”

Be consistent now, gentlemen, if you object to reading that Bible or re-
citing from it. Is it because it is offensive in form and words to your

Catholic consciences ? Will you be any better satisfied then if it is daily read

to your children by their teachers ? Will any bishop, any priest, tell me
that he is willing to have that untrue version of God’s word, so offensive

to Catholic conscience and belief, read daily to his flock by their heretic

teachers ? No, if it is intolerant to ask the children to read or recite that

Bible, it is intolerant to read it to them ; if it is intolerant to ask them to

recite the Ten Commandments, it is also intolerant to teach them. If to
ask the Catholic children to join in repeating the pure religion, the simple

and pathetic supplications of the Lord’s Prayer offends their consciences,

then any instruction in piety from a Protestant is offensive, and the Bible

must be banished forever from our schools.

Concede the first point, that you are bound to excuse Catholic children

from reciting from the Bible, and you are bound to concede that they shall not

read it. Concede that they shall not read it, and you are bound to concede

that it shall not be read to them. No other course is possible if the first
false step is taken, and no one sees this so clearly as the priest who has so
rashly commenced this attack upon our institutions. I appeal from bishop
and priest, to the unfettered intelligence of our adopted citizens ; I appeal
to the countrymen of Burke, and Sheridan, and Grattan, and Curran. Do
you, who wish to become American citizens, you who wish to draw closer
the bonds of a common country and a common freedom, fear that your
children will suffer because they, with united hands and hearts, lift up
their tender voices in common prayer to that God who is the Father of all,
whose rain falls alike upon the just and the unjust, who is the God of all
nations, of all races, all climes ?

I repeat once and forever, that there is not any sectarianism intended or
taught by the use of the Bible. We do not ask your children to adopt our
translation as the true one. If any point of doctrine arises upon any text
of our Bible or theirs, they are free in their faith as we are in ours. They
are instructed to interpret the second commandment in one way, and we in
another. No one wishes or seeks to disturb their faith

;
we do not ask

them to say or to believe that ours is the true word of God, or the best
translation of the tables of the law which God delivered to Moses. Our
teachers, in their great duty, teach lessons of piety from the only source
from which it can be taught, and the children are free to believe or disbe-
lieve them, free to worship God according to the faith of their fathers, free
in their faith, free in their consciences.

I repel altogether the specious pretence that our Bible is not the Bible,

because the translation differs in some particulars from the Douay Bible.
Every translation from the original Hebrew and Greek must of necessity
vary,— must of necessity be more or less perfect, according to the accu-
racy and perfection of the language into which it is translated, and the
learning and skill of the translator. The Holy Scriptures have been
translated into over two hundred different languages

;
but they are

always the Bible. Not the Bible of the Catholic or the Calvinist,

—

4



50 TRIAL OF MCLAURIN F. COOKE.

not the Bible of the Methodist or the Episcopalian, — but the Christian
Bible.

As well may we be told that God’s eternal sky is not the same. It
clothes itself with vanishing, ever-changing beauty from season to season,
from hour to hour. It robes itself in the tender violet hues of spring, the
deep, cloudless transparency of midsummer, and the dark, steel-blue of a
northern winter. It arrays itself equally in the delicate rose and opal hues
of dawn,— the imperial purple and gold of sunset, — and at midnight it
wears its royal robes of state, all flecked with countless stars

;
but in all

changes, — in all climes, — it is always God’s eternal sky, the same sub-
lime image of that wondrous eternity which lies behind us, and before us.
— the same holy symbol of the all-embracing love of our Heavenly
Father.

And now, may it please the Court, I have but to sum up this part of my
argument in a few words.

They say that the regulations of the school committee violate the Con-
stitution, which protects all citizens in their liberty of conscience. I answer
that their conscience is left free, —they are not called upon to believe or
disbelieve any thing. Their faith is their own, — we do not ask them to
yield one iota of it. They may find offence in our laws, and in our cus-
toms. That is always the consequence of general laws. They found us
with these institutions, — they have accepted the benefits of them, — they
must bear with the inconveniences also. And, I say it in all kindness, but
it is proper it should be said, there are many causes for offence which
Protestant parents also find in the laws which compel their children to
mingle with the children of the Catholics. Let us hope for mutual forbear-

ance and mutual submission to the laws.
And now, may it please your Honor, that I have briefly discussed this

great question in the cause, there is another issue which it is my duty to
meet. This case has been planned and arranged with a great deal of arti-

fice, the snare was very skilfully laid, but I think I shall be able to give
Father Wiget good reason to regret that he selected this as the time, or the
place, or the manner of taking his first step in the great movement of ex-
pelling the Bible from our schools. It is my duty to expose this artifice,
and it is an easy task

;
in doing it, I shall also prove, beyond all possibility

of question, that this is not a case of conscience, or of scruples of con-

science. The truth is, that a very cunning plan was laid, the object of
which was to have a boy whipped for his religion, in order to raise the cry
of religious persecution, as I will presently prove.

I cannot admit that the pretended objections raised by the Catholic
pupils, are “ not mere fetches and pretences devised for the purpose of
creating a difficulty.” * This case fortunately, very fortunately, is full of con-

clusive evidence to the contrary, and I beg the attention of the Court to it

No one can fail to remember the manner in which this cause was originally
brought before the Court. It was pretended that an intelligent and inter-
esting little boy, religiously educated, was bidden with threats to violate his
tender conscience ; that in vain he pleaded the commands of his parents,
the solemn lessons of his religious instructor. His prayers and appeals

were all in vain
; he was ruthlessly beaten until his wicked persecutors,

frightened and shocked at their own cruelty, ceased their stripes, and
endeavored to hide the bleeding evidence of their pitiless tortures. Has

* Letter from the Bishop of Boston to the School Committee.



TRIAL OP MVLAURIN F. COOKE. 51

your Honor forgotten that picture of religious fanaticism and persecution,
that touching picture of the infant saint and martyr ? I am half inclined
to believe that my learned friend, who opened and tried the case so ably
and so well, had worked himself up to the faith that this small citizen had
the already sprouting wings of a cherub under his waistcoat He was a
saint in embryo, — a small sized martyr in jacket and trousers. I confess
that I could not but sympathize with my friends, when all the poetry, all
the picturesque charm and color of this picture was banished so rudely, on
the last day of the trial. What a shocking blow was given to our sensi-
bilities ; what a ludicrous “ behind the scenes ” appeared when he heard
that this small saint, who was willing to be “kilt” for his conscience,—who
vowed with infinite pathos that he would never be a coward to his religion

;

when we heard that this very small and somewhat dirty little martyr was
out in the streets where the boys were playing marbles, declaring with the true
fervor of a pious Catholic, “ Faith and I warn’t agoin to repate thim damned
Yankee prayers.” What a very abominable and altogether absurd little
cherub to be sure. I would have given money for one peep into the breasts
of my friends on the other side, at that precise moment. I wonder if, as
they heard the poetry of their case, the glory and the beauty of their dream,
vanish forever in the irrepressible titter which no one in the court house
could resist, when that evidence was given, — I wonder if they did not say
to each other that Father Wiget’s bread and butter saint ought to have
been whipped once more, and more thoroughly. This, may it please your
Honor, is the delicate, the tender, the more than feminine purity of con-
science, which cannot submit to say “hallowed” instead of “sanctified,”
which does not revolt from the words of our “ Ten Commandments,” which
accepts them all, acknowledges them all ; but flies as from impurity, which
shuns as sacrilege the repeating those very words, unless they are divided*
according to the holy dictation of Father Wiget. What volumes of the
benignant teaching of the Jesuit, what touching pathos, what sweet infan-
tine love of God, what tender delicacy of conscience, spoke in those words,
“Faith and I warn’t agoin to repate thim damned Yankee prayers.” Was
it for that pious ejaculation that Father Wiget gave the boy his symbolic
medal of brass, whitewashed with silver, in that very memorable interview
at the Jesuit’s house, of which the boy, although it took place but the night
before he was called as a witness, was really unable to remember a single
word excepting the important, the saintly, the pious instruction to “ go home
to his supper?”

I have a few words to say as to this boy and his father. There is a very
material question of veracity to be settled between them and the teachers
of the school who have been called as witnesses. If I am able to prove
them wilfully false, your Honor will be compelled to admit there was a
yreat motive for the falsehood

;
if they are proved to be wilfully false, no

one can dare to say that this is a case of suffering for conscience* sake ; if
they are proved to be false, and the teachers are relied upon, then, not only
is this case at an end, but a plot is exposed which must excite the indigna-
tion of every hearer.

I remember, sir, that I was assailed somewhat rudely by the able and
eloquent senior counsel, who told us that after my terrible cross-examina-
tion of his rather blasphemous and very profane little saint, he nearly or

* Wall testified that his objections to the Commandments was because they were
not divided as the Catholics divide them.



52 TRIAL OF 3KLAURIN F. COOKE.

perhaps quite fainted away. Perhaps it was the attempt to find out and
confess what that very suggestive and significant and quite symbolic white-
washed medal was given to him for, which weakened little Saint Tom’s
tender frame. I remember that it was a question very general, — very
pertinent, —very often asked, —never answered, — a question which has
been asked a great many times since by persons who take an interest in
this trial,— What the priest did give that medal for the night before the
boy was to be a witness ? This was on the first day of the trial. May 1
ask my eloquent friend if that very interesting and quite painfully honest
little martyr fainted away after that other very striking scene in court, on
the last day of the trial, of which he has not yet spoken ? I desire to re-
call that scene, with somewhat of form and precision, to the mind of the
Court, for a flood of light is thrown from it all over the case,— over the
manner in which a religious persecution question, — a question of suffer-
ing for conscience’ sake,—has been gotten up (in a very bungling and
stupid manner, I must be allowed to suggest) by the pious Jesuit of St.
Mary’s. It cannot be forgotten that we had proved by the testimony of
the respected principal of the Eliot School, — Mr. Mason by the young
lady assistant in his room, — Miss Marsh, whose intelligence and candor
spoke in every line of her fair face, —that the father of the boy, when he
had been dismissed, the Monday previous to the day of the rebellion, had
brought him back, and heard from Mr. Mason a full explanation of the
rules of the school, and of the precise differences between the Catholic ver-
sion of the Ten Commandments and that which was printed in the boy’s
books. It was proved that he ordered his boy to say them, and directed
his teacher to punish him severely if he did not obey ; that he took pains
to say that the hoy was not to he sent home

,
that he was not to be expelled

from school, but was to be made to say the Commandments, and to be pun-
ished severely if he did not, I am quite sure that no one who heard these
witnesses, no one who heard the very long and elaborate, and very skilful
cross-examination to which they were subjected, could doubt for one moment
their entire truth. It was with a good deal of surprise, I think, that your
Honor heard the boy and his father called to contradict this clear and posi-
tive evidence. And yet they had the folly to come upon the stand and
wilfully and audaciously to deny it altogether. I believe that no one who
heard them, no one who witnessed that scene when, more plainly than I
ever before saw it in a court of justice, deliberate perjury was proved out
of their own mouths

;
wfien the boy, conscious of his falsehood, stood mute,

but confessing his crime by his silence, with the fraud and the crime so ob-
vious, so awful, that in those moments of suspense you could hear the very
silence in the crowded court room, —no one who heard the boy that day,
would say that it is unnecessary or would be useless to repeat weekly or
daily to that son of that father the awful command, “ Thou shalt not bear
false witness.”

I have read some pathetic histories of persecution for conscience’ sake. I
have read of martyrs whose meek and saintly demeanor drew from their
enemies tears of rapturous admiration, — martyrs who died in sublime self-
oblivion, died in fiery coronation robes, when the rolling smoke, erimson-
tinged, floated far up the sky, vanishing in heaven as the pang and the hor-
ror vanished also in the victory that swallows up all strife.

I fear that I am so much of a heretic that I cannot persuade myself that
this boy is a martyr, and I do not think he looked like a martyr or a saint
when he was so plainly exposed in his falsehood.



TRIAL OF MCLAURIN F. COOKE. 53

I am afraid that I do not appreciate with a sufficiently keen sensibility
£he religious side of this present persecution for conscience’ sake. I am
afraid that I am liable to a conviction for holding the very heretical and
abominable doctrine, that this very interesting Wall and his very interesting
boy, are terribly given to “drawing the long bow,” and that their pretended
tenderness of conscience is mere moonshine on the water.

This question, — whether Wall and his son are false or not, is very vital
to this cause, as I will presently show; and I therefore ask the Court to
remember the father’s evidence now as well as the boy’s. The Court will
remember that it was proved that this boy, and the other Catholic boys, had
been in the habit for years of repeating the Ten Commandments without
objection, — a very material fact bearing upon the same vital question, to
which I am presently to ask your Honor’s attention. I have not only
proved that this boy had done so, but that in particular, since September
last up to the week of the rebellion, he had done it constantly ; and yet, in
the face of this proof, the boy dared to stand up here and swear boldly,
under “ medal,” or other influences, that he had never once repeated them.
His father dared to swear to the same thing, and he swore that for the last
six years, ever since his boy was four years old, he had forbidden him to
say the Protestant Commandments. I was satisfied that Wall was telling a
deliberate falsehood, and I desired to make it apparent. I, therefore, in
the cross-examination, put the question which I think your Honor will very
well remember, —

“ Had he really been obliged to tell his son so ? ”
“ Sure he had, and he and the priest both had forbidden his boy to say

them, a thousand times.”
“ What, a thousand times ?

”

“ Yes, faith, and more than that, five thousand times over, he forbid him
and me both.”

“ Let me remind you that you are on oath, Mr. Wall, before you repeat
that.”

“ Faith, and it was over five thousand times.”
u What, you yourself have been forbidden five thousand times by your

priest, to say the Ten Commandments ?”
“ Yes, and indeed I have, and more too.”
“ Well now, Mr. Wall, please to remember that you are upon oath, and

tell the Court of even one time when any body asked you to say the Ten
Commandments, and when it was necessary even once for the priest to for-
bid you ?”

Wall was in difficulty. “ Oh! that’s no matter,” said he.
“ Pray tell me, Mr. Wall

; name one time out of the five thousand.”
“ Oh ! I didn’t mind when it was,” said he.
“ Can’t you. tell once out of all the five thousand ?

”

A light of inspiration suddenly flashed upon him, and then with a cool
impudence, and a ready lie — which he enjoyed as much as any one —
which no one could hear without a smile

:

“ Faith, it was in the ould counihry they did it,” said he. He evidently
thought he could get out of the way of cross-examination, if he could but
take refuge in his native bogs. But it was all in vain.

“ So it was in old Ireland that you were told five thousand times by your
priest that you must not say the Ten Commandments, was it?”

“ To be sure it was, your Honor; who ever supposed it was any where
else ?

”



54 TRIAL OP MCLAURIN F. COOKE.

“ But who asked you to say the Protestant Commandments there ? ”
u No body asked me to say them ; we weren’t bothered with thim things

there.”
“ But the priest told you live thousand times to be sure and never repeat

the Protestant Commandments?”
To be sure he did

;
ain’t I telling you so ?

”

“ But why should he tell you not to
,
if nobody asked you to say them ?”

He was evidently stuck in his own native bog. But it was only for a
moment. With the same gusto, with the same enjoyment of the lie that
helped him, as he thought, out of his difficulty, he said : “ Wasn’t it thim
botherin ’ tractmin, to be sure ?

”

“ Oh 1 the tractmen wished you to say the Prostestant Commandments,
did they?

”

“ To be sure they did.”
“ What, nothing else but the Commandments ? ”

“ To be sure not.”
“ And did they really ask you five thousand times to repeat them ? ”
“ And more, too, for the matther of that.”
“ And the priest forbid you all of five thousand times to repeat them ? ”
“ That he did, to be sure.”
Poor Wall, no wonder he emigrated, with five thousand Protestant tract-

inen at one ear shouting the “ Ten Commandments,” and five thousand
priests, shaven and shorn, at the other, shouting to him : “ Be kilt for your
religion, man.” No wonder he was obliged to emigrate. That is a speci-
men of his evidence, and I am forced to say that may be Catholic honesty,
but it is what we should call very like downright Protestant lying.

But it was a darker, sadder scene than that when, in narrating what was
told him by his boy, he stated what we all know to be false, deliberately,
wickedly false. The boy was called to the stand immediately, — and
there they stood, father and son, convicted of falsehood, convicted of crime,
— without escape, — without excuse, — without any possibility of evasion,
even through the readiness of Irish wit. I am sure that no one who wit-
nessed that scene will ever forget it. It was a dark and fearful commen-
tary on this fetch and pretence of a tender conscience which would be
violated by the Lord’s Prayer, — which would be sullied and stained by
God’s holy Commandments.

I turn from that dark scene to ask several questions which, as I said,

will throw a flood of light upon the darkness of the case. Why was it,
that on the Sunday before the boy first refused to say the Commandments, a
few parents and only a few boys were gathered in a basement room in that
Jesuit Church in Endicott Street ? Why was it that this boy alone on the
next day refused to repeat the Commandments which he for months and
years had repeated without a murmur? Was it in order that he might be
whipped ? Was it in order that the Jesuits might raise the cry of religious
persecution ? — might under that cry arouse public feeling, and drive the
Bible from the schools ?

If so, they were disappointed. The boy was not whipped ; he was
simply told that he must obey the general regulation, or he must bring his
father there and have the matter explained. He was sent home. That
was on Monday. He did not return, as his father swears, until Wednes-
day. Why was that delay ? Was there any consultation with the priest
going on ? What followed is very strange. The boy is brought back.
The teacher is told with great care—and the injunction is repeated—



TRIAL OF MCLAURIN F. COOKE. 55

that the boy must say those very Commandments. He is told that the
father wants the hoy kept at school, and not dismissed if he refuses to re-
spect the commands ; but that he must be punished, and punished severely,
if he refuses. How did the father know beforehand that the boy would
refuse ? Why did he wish him punished severely if he did ? No one can
fail to see through all this. We see that this was no accidental whim of
one parent or one child— it was a deliberate, a concerted plan, in which all
were to join, and this strange conduct of the boy and the priest and his
father show that their object was to catch the teachers in their snare and
compel him to whip the boy.
Do not forget upon this very point the significant evidence that the

boys said they intended to refuse to repeat the Commandments, and that
they expected to be whipped and expelled from the school. The rest of
the story is soon told. On the following Sabbath, the same priest instigated
nine hundred pupils to break into open rebellion. The boys go to school,
they stamp on the floor, and make a disturbance by whistling, loud mut-
terings, and scraping their feet while the Lord’s Prayer is repeated. This
Wall boy makes himself the most forward

;

he is the ringleader to whom
all the other boys turn. He cannot be sent away, for his father earnestly
requested that he should be kept in school and punished severely.

I think we begin to see the clouds breaking away a little. I think we
understand something about the reason of those mysterious visits after

dark to the Jesuit’s house, the night before the boy was to be a witness,
I think we begin to know now how it came to pass that the father should
know beforehand that the boy would refuse ; why the father was so anx-
ious, and why he called the second time to repeat that he wanted the boy
kept in school and punished severely.

I think we understand now the meaning of that significant confession
which I extorted from the boy, that he was angry because his hands were
bathed in cold water, after he was whipped, because he wanted to have
them all swollen and looking as bad as he could. I think now it is no
longer our unanswered question, why was that medal given by the Jesuit
Wiget, to this boy alone, among all the nine hundred boys ?
Can any one doubt now that it was the deliberate intention of this

Father Wiget and his accomplices, to break up the regulations of the
school? That it was their wish and expectation that one or more of the
boys should be whipped ? Can any one fail now to see the reason of the
evasions, the quibbling, the falsehoods, and the pretended forgetfulness of
the boy and his father?

This plot was beautifully arranged. This play of the “ Saint’s Trag-
edy ” was put upon the stage with a great deal of scenic effect ; but now
that we are fairly got behind the scenes and see the wire-pulling and the
scene-shifting, it looks a little absurd— does it not ?

I very respectfully beg to leave this part of the case, with the part-
ing advice to Father Wiget, that the next time he gets up a sacred drama
for public exhibition in our courts, he would remember there is an Amer-
ican institution called cross-examination, which sometimes operates as a
“ free pass ” behind the scenes. I would also affectionately caution him
to waste no more medals on doubtful saints, or on those precocious but pro-
fane little martyrs, who are ready to die for their religion in the school-
house, but in the streets “ Ain’t agoin to repate thim damned Yankee
prayers.” If any one now believes in the purity of conscience of this boy
and his father — if any one really believes that they are any thing but the



56 TRIAL OF MCLAURIN F. COOKE.

willing tools and accomplices of more artful men, I have nothing further
to say. I have exhibited now the background of the picture, and I think
no one will fail now to see or understand who are the real criminals who
have usurped the place of accusers.

There are many points that I wished to touch upon which my brief argu-
ment does not allow me the opportunity to discuss, but there are two
or three which I must not wholly pass by, although I cannot argue them
fully.

It is said that all are taxed for the schools, and all should have equal
rights in the schools. All are not taxed equally to be sure, but all do
have equal rights here. The same regulations apply to Jew and Chris-
tian, Protestant and Catholic—the same benefits are given to all, the same
burdens are borne by all.

It is idle to say that the Catholics do not have equal rights because we do
not give them supreme rights

;
that they do not have equal rights because

they cannot, at the will of their priests, compel us to forbid the use of the
Bible in our public schools.

This question, however, has been so fully determined b.y the authority
of the case of Donahoe v. Richards, in the 38th volume of the Reports of
the State of Maine, that it is no longer necessary to argue it.
Your Honor is familiar with that case

;
it is an authoritative determina-

tion of our courts of law that the Bible can be used in schools without
infringing upon the liberty of conscience. I cannot but say, however, that
I regret that the decision was not placed upon rather higher grounds. It
seems to me that we are to meet this question, not upon the ordinary
level of the plain and simple rules for ordinary school discipline and the
selection of common school books. It is to be met upon the sunny and
serene heights of the law, where the grand principles of the science of
jurisprudence soar far above the customs and the usages of a busy mercan-
tile world — where the great primeval truths, which are the foundation of
government, of society, of morality, alone are taught — where law and
religion walk hand in hand.

It is said that the children are compelled by the statute passed in 1852
to attend school. If I have maintained my proposition, that nothing illegal
is exacted of the pupils, if their freedom of worshipping God, in their own
manner, is not taken away, then the objection is immaterial. It should be
noticed, however, that the law is by no means so strict as has been sup-
posed. It was intended to prevent vagrancy and crime. No child has
been obliged to attend school who has already learned the studies com-
monly taught there

;
no child need attend school who is taught at home

;

no child need attend school who is too poor ; and above all, any child can
attend any school of any kind that his parents may select.
And now in closing, there are few words more to be spoken. It may be

said, it has been said, that this question is met with too much of earnest-
ness and zeal. I trust that it will never be met otherwise. It is too great
and too vital a question to be passed by lightly. I would wish indeed
to avoid all that can give offence, all that can cause heartburnings or alien-

ation to the emigrants who we admit as free citizens ; but they must
remember that they come to learn as well as to enjoy our institutions.
They must submit to hear very plain speaking on questions so sacred, so
vital to our whole country as this.

They know not what they do, or they would never dare to attempt, as they
have done, to violate our household gods. This is no question of politics



TRIAL OF MCLAURIN F. COOKE. 57

or for politicians — the people will never intrust it to them. It is a ques-
tion for every fireside, for every heart. I know that there is not a mother
throughout our land, from one ocean to the other, who did not feel a sudden
thrill of indignation and horror when she first heard that the Catholics
were attempting to drive our Saxon Bible from our free schools. Little
do they know the spirit of American liberty who think that this can ever
be accomplished. Timid men may be found to consent to submission, —
politicians may be found who wish to conciliate foreign voters — thought-
less men, who do not reflect upon the great interest of their country, — but
there is a united will and power of the people, which, if this movement is
persevered in, they cannot fail to know, — and I dare to say to all, to
bishop, and priest, and emigrant, that until liberty ceases to be any thing
but a shadow and a name, that Saxon Bible will be the companion of the
American freeman — his pillar of cloud by day, his pillar of fire by night.
The Saxon Bible at the cradle of the new born infant, by the death-bed

of the gray-haired father
;
the Saxon Bible on the mother’s knee as she

teaches her child to join his little hands in prayer, and lift his heart away
from earth, away from its hopes and fears, its joys and sorrows, to his
Heavenly Father; the Saxon Bible in the statesman’s closet, and at the
poor man’s hearth ; the Saxon Bible in the child’s free school, and the
child’s free heart.

Never, never can man or priest put asunder those whom God has joined
together. Banish the vain delusion forever that our Saxon Bible can be
taken away ; neither foreign tyrants nor foreign priests will ever have that
power. Until America ceases to be a republic, — until the warnings of
Washington and the wisdom of Webster are forgotten, — until the sacred
traditions of the past have perished, — until the memories of the dead have
passed away like a dream, — until religion and freedom are banished from
the land, it will remain as the rule and guide of our faith, the great charter
of our liberties.

At the close of Mr. Durant’s argument, the Court took a recess of ten
minutes. At the expiration of that time, Mr. Webster commenced his
argument for the complainant, as follows : —

ARGUMENT OF MR. WEBSTER FOR THE COMPLAINANT.

May it 'please the Court

:

—While the counsel for the defence announced
in the commencement of his argument his chief purposp and desire to be
to speak to the complainant in this case, to his brethren and friends

;
to the

alien, the emigrant, and the exile who have found refuge here from the
wrongs and oppressions of the Old World, it will be my aim, as it' is my
duty, in the humble words I may say in relation to the case at the bar, to
address the intelligence and judgment of your Honor upon the facts proven
in the examination.

McLaurin F. Cooke, the respondent in this case, has been arrested and
brought before this Court charged with having, on Monday, the 14th of the
present month, committed an aggravated assault on Thomas J. Wall. To
this complaint he has pleaded not guilty, and thus the question, the precise
question for your Honor to determine is, did McLaurin F. Cooke, as then
and there set forth, unlawfully whip, beat, and wound Thomas J. Wall.
The pertinent facts which surround this case are not many and not com-



58 TRIAL OF MCLAURIN F. COOKE.

plicated. With your Honor’s permission, I will relate them as they have
been made apparent in the testimony of the witnesses sworn and examined.
The Eliot School is one of the public schools of the City of Boston, sup-

ported by a portion of the public revenues of the city. The respondent is
a sub-master in that school, and the second person in authority there.
Thomas J. Wall was, on Monday, the 14th inst., one of the pupils, but
under the immediate instruction of Miss Sophia Shepard, an assistant in
the Eliot School. On Monday morning, the 14th inst., the day of the beat-
ing and wounding of which we complain, Thomas J. Wall, the beaten and
wounded boy — a child of the tender age of ten years — left his father’s
home for the school house, arriving there some twenty minutes befoie the
school began, and spent the time, before the opening of the exercises of the
school, in playing horse with his little brother of eight years of age. When
the school was opened, it is not denied that the boy Wall was quietly and
promptly in his place. It is not alleged that he had up to that hour and
minute been any thing but the gentle and affectionate child he is. The
exercises of the school commenced with reading a portion of the Sriptures
by the teacher. It is not intimated that Wall was not attentive and re-
spectful, as he was, during that exercise. After reading from the Scrip-
tures, the teacher next directed the Lord’s Prayer to be charted by the
scholars. There is no insinuation, direct or indirect, from witness or coun-
sel for the defence, that the boy Wall was not, in every outward appear-
ance, a devout pupil during that manifestation of religious devotion. After

singing the Lord’s Prayer — that sweetest, dearest, and best of all at-
tempted forms of imploration to our Divine Master — that prayer made
doubly sacred by the teaching of a pious mother, and the memory of an
indulgent Christian father — that prayer hallowed to me by all the dear
memories of a happy home, and which the counsel for the defence say that
I, and my associate, are conspiring to banish forever from the schools and
firesides of New England, — after chanting that prayer, I repeat, by the
children, Miss Shepard directed the boys to take the position of body pre-
scribed for the solemn religious exercise of repeating the Ten Command-
ments. The pupils all complied. They were directed, Miss Shepard
swears, to recite them separately. She commenced by calling on Mason,
a boy at the head of the row of seats on her left hand, and at the foot of
which sat Wall. Mason repeated the Commandments. So did the boy
next to him. The third boy refused. The fourth repeated the Command-
ments. The fifth, sixth, and seventh refused

;
the eighth repeated them

;

and the ninth and last boy in the row, the boy Wall, also refused, as four
boys out of eight had done before him. On inquiry of Wall by the
teacher, why he refused to repeat the Commandments, Miss Shepard testi-
fies he replied that he did not know them, and thus could not repeat them

;

that his father had told him not to repeat them ; and that the priest had
counselled him not to repeat them. There is no suggestion that Wall
refused in an impudent or unbecoming tone, as the teacher is careful to
swear another boy (Rohan) did, and, with the thought of impudence thus
in her mind, is careful to omit to swear of Wall. A large number of
boys in that room of the school, and at that time, refused, for similar
reason, to join the religious exercise of repeating the Protestant version of

the Ten Commandments, as did Wall.
Shortly after this, a Mr. Hazelton, known to be a member of the school

committee of the city of Boston for the Eliot School, a gentleman -whose

face I have not had the pleasure to see in this court room till to-day, notwith-



TRIAL OF MVLAUIIIN F. COOKE. 59

standing his extensive knowledge of facts, came into the room, and asked

tliO.se boys who refused to say the Commandments, to stand up, and Miss
Shepard testifies that about two thirds of the school did so. He then called
the Wall boy, and asked him to read the Commandments out of the Bible.
The boy remained silent, and Mr. Hazelton told him he would give him
five minutes to think whether he would or not ; afterwards said five was

too much, and he would give him two minutes. At the expiration of this
time he gave the Bible to Wall, but the boy still refused ; Mr. Hazelton

did nothing with him after that. Immediately thereafter Mr. Cooke, the
respondent here, came into the room, and Miss Shepard swears she
addressed him by the salutation that “ her boys were behaving badly.”
Mr. Cooke replied that she “ had better turn them over to his rattan.” No
word of conspiracy or rebellion was uttered. After conversation between
the parties, not material to the question on trial, the boy Wall was taken,
with perfect submission on his part, into Mr. Cooke’s room, and was placed
upon the platform. When the boys in Mr. Cooke’s room, who were then
out for recess, returned to their seats, Mr. Cooke asked Wall to read the
Ten Commandments ; he said he “ would if his father was willing.” The
respondent then, turning around, addressed the scholars, saying, “ Here is
a boy who refuses to repeat the Ten Commandments, and I will whip him
till he yields, if it takes all the forenoon.” Whereupon he proceeds to take
a rattan stick, quite three feet long, and nearly as large round as a man’s

little finger, and, with but two brief intermissions, whips, beats, and
scourges the naked hands of this child of the tender age of ten years, for
the space of thirty minutes, the boy repeatedly protesting in the mean
time, that he would read the Ten Commandments out of the Protestant
Bible, if his father would allow him. The whipping and scourging were
stopped at the end of thirty minutes, by the boy, Wall, consenting to so read
the Commandments, and he consented only when a person came into the
room, and falsely said that he had just seen the boy’s father, and that the
latter said he might repeat the Protestant Commandments.

After this immoderate, hard-hearted whipping, lashing, and scourging of
the tender flesh of a child of ten years of age, the effects were seen by the
respondent, a physician by education, to be so severe and so dangerous that
he twice took the child to the sink, and compelled him, for many minutes,
to keep his hands in cold water.
The boy was then sent home

;
a physician, among the most respectable

in the city, was called, who prescribed for the bruised, swollen, and bleed-
ing members. The physician has been before us, and states, upon his
oath, that the hands of the boy had a swollen and sodden habit

;
on the

inner surface were livid spots where blood was extravasated
;

the skin

broken in places
;
there was irritability of muscles

;
that marks upon the

hand were distinct and real
;
that cold water tended to prevent vesication

or raising of blisters. He also explained to your Honor, what we all know,
and this respondent by his education as a physician knew, how very tender
is the skin of a child like Wall.

It is also in evidence, and not disputed, that both the priest and the
father, so late as the Sunday before the Monday of the scourging, instructed
the boy not to repeat the Protestant form of the Ten Commandments. It is
in evidence also, and not denied, that the father on that same Sunday told
the boy “ for his life not to say them.”

Such, may it please the Court, is the simple record of the events of that
fatal Monday which have made so many thousands, as they have read the



60 TRIAL OF M^LAURIN F. COOKE.

details of this long trial spread before them by the gentlemen of the press
about us, — which have made so many countless thousands of the wise and
good to mourn, not only for the torture and suffering of the poor boy; not
only for the anguish of the toiling yet affectionate and loving mother who
had reared her child to love and adore his Creator God, and to obey “ his
father and mother

;
” not only for the boy, the mother, and the father, but

for the cruel recklessness of the teacher. The tones of condemnation of
this cruel beating, which have corae back to us from the public press out-
side of this city, are alike honorable to the manhood and the affections of
those who guide and control those potent engines of public opinion.

Is not the respondent, upon the state of facts before us, guilty of the
offence for which he stands arraigned ? It is not possible that your Honor
can doubt.

The time occupied by the argument of the counsel for the defence, and
the closely approaching hours of evening, will constrain me to present the
facts and arguments in the case in a more desultory and brief manner than
I had intended.
The assault and battery, the whipping and beating, are not denied by the

defence. In the trial of the case and in the argument, the attempt by the
defence has been to show that the cruel treatment administered to the child
was not unlawful. And to that end the first suggestion of the respondent
urged upon your Honor is, that Mr. Wall, the father, on Wednesday, the
1 6th instant, indicated to Mr. Mason a willingness to have his son learn and
repeat the Protestant Commandments.
Now in relation to all that, and in complete, abounding refutation of the

argument of defendant’s counsel on this point, we have the testimony of the
boy Thomas. We have evidence of the conspicuous fact, that Thomas told
Miss Shepard and Mr. Mason, both of them, on the first Monday, that his
father was not willing to have him repeat the Ten Commandments of the
spelling-book. Miss Shepard even goes further, because she cannot say but
that the boy used the stronger word learn

,
instead of the word repeat. Then

Miss Shepard testifies that on Wednesday the boy was unwilling to repeat
them. Then on the next Monday the boy again tells Miss Shepard that
his father is unwilling to have him repeat them. She also swears that the
boy, on that day, told Mr, Hazelton, — this ubiquitous Ilazelton, heard
every where but on the witness stand, because the defence dared not put
him on, — he would not say them “ on account of his religion.” The boy
also told Mr. Mason, that day, in Mr. Cooke’s room, that his father wras
unwilling to have him say the Protestant Commandments. He also
repeatedly expressed to Mr. Cooke, during the castigation, his entire will-
ingness to comply with the rules of the school, and the Protestant version,
if his father would allow him. So we have the boy, from the first Monday
to the last Monday, on every occasion, and in every form, protesting that
his father was unwilling to have him say any Commandments but those of
the Catholic Church. Thus much for the boy.

Next, we have testimony of the parent, who, as your Honor saw7 , is a
laboring Irishman, of respectable and tidy habit, but, as he himself testified,

unable to read or write, and wmrking from day to day, as he could get wrork,

along the shore, but chiefly on T wharf. He has the impulsiveness and the
strong emotional nature which belongs to his race. He has more espe-
cially the sensitiveness and pride of opinion which mark an uneducated
Irishman. His ignorance, his vrnnt of acquaintance wdth the arts of an

accomplished cross-examining attorney, could not and did not save him
from slight, but entirely immaterial contradictions.



TRIAL OF MCLAURIN F. COOKE. 61

I enjoyed, may it please your Honor, as much, perhaps, as any right-
minded person could, the effort of the counsel upon the other side to bur-

lesque, in a written argument, the testimony of Mr. Wall. I thought,

however, there was little, either of generosity or true manhood, in the

attempt so to ridicule a laboring man for his ignorance and for the dialect
of his native country. I thought it in bad taste, to say the least, to sneer in

a court of justice at the expressed conscientious convictions of such a man.

It is the blessing of my client, amid the dizzy worldly activities of these
times, to have a conscience, although the defence may think such a com-
modity inconvenient, expensive, and unfashionable. He is antiquated
enough to believe it his sacred duty to rear up his children in the discipline

and correction of the Lord ; and to bequeath to them, in the want of all
worldly goods, as the most valuable of legacies, good religious impressions,

and a sound religious education. This, in his judgment, “ is the one thing

necessary.”

The vigorous, searching, rude cross-examination of the counsel for the
defence would, as it has done before, have perplexed stronger and better

educated men. But notwithstanding all that, despite what the counsel for
the defence have said of his testimony, one great central fact was, and is

now, I am sure, apparent to your Honor, which is, that Mr. Wall is an
enthusiastic, sincere, devoted, and, if you please, a bigoted Catholic. It
also, I venture to say, stands out clearly to your Honor’s view, that he
would no more knowingly tell his child to repeat the Protestant form of the
Ten Commandments, than he would tell the driver of a loaded truck to
drive over him. His answer, that God made his Commandments, and man
made yours and mine, is most significant. And Mr. Wall swears again and
again, and in every form of language, in answer to the annoying, pressing
cross-examination of the respondent’s counsel, that he told Mason that he
didn’t want his boy to say the Protestant Commandments, but to be whipped
if he would not repeat the Catholic Commandments. And he was careful
to take a witness to his interview with Mason, and the witness corroborates
his testimony. Your Honor heard the evidence of Gill, a witness not
impeached by the testimony or argument of the opposite side, and marked
the honesty of the man, and the deliberation and sobriety of his language.
He swears that on Wednesday, three weeks, he went with Mr. Wall to Mr.
Mason at the Eliot School

;
Mr. Wall asked Mr. Mason if his boy Thomas

was discharged from the school ; Mr. Mason said he was ; Wall asked,
“ What for ? ” Mr. Mason answered, “ For not reciting the Ten Command-
ments;” ^Yall told Mr. Mason that if the boy refused to say them in his
own, Wall’s way, to punish him. He also swears that Wall “went away
satisfied,” and is it not clear to your Honor’s mind that such an ultra-zeal-
ous, uneducated Catholic as Mr. Wall is, would never have gone away from
that school house “ satisfied,” if he had supposed he had told Mr. Mason to
whip and scourge his young child of ten years into saying our Protestant
version of the Ten Commandments ? Besides, we have the testimony of
Mr. Mason himself, who, on cross-examination, said that Mr. Wall told him
on Wednesday that his boy should not repeat the Protestant Command-
ments. The assumption that Wall would have been “ satisfied ” is mon-
strous, and so I will not detain the Court upon the point, but to refer for a
moment to the use the opposite counsel have in another way made of the
testimony of Mr. Mason in this relation.
The counsel for the defence has found it necessary in the course of his

argument to apply dishonoring insinuations to all persons opposed to him in



62 TRIAL OF MCLAURIN F. COOKE.

the present case — not only to the Catholic Church as a body, which is not
in this case, but to its individual members, and to none more distinctly and
offensively than the members of that Society of Jesus established more
than three hundred years ago. Whenever he had occasion to speak of
that holy brotherhood, he applied to them qualities of craftiness, deception
and falsehood. It occurred to me that if I would follow out the cue thus
given me by the counsel, I could fasten upon his witness, Mr. Mason, all
the vicious qualities which he applies to the Jesuits. Did your Honor ever
hear or look upon more craftiness, more adroit management, than was
evinced by Mr. Mason in his management of this ignorant Irishman, Wall,
when, on Wednesday, he came to inquire why his son was expelled from
school ! Observe Mr. Mason’s opening speech to Wall, as reported by him-
self upon the witness stand ! See how artfully he seeks to allay all the
Catholic apprehensions of the father, who can neither read nor write, but
who believes it a sin for his boy to learn and repeat our version of the
Decalogue ! Let me recall to your Honor Mr. Mason’s testimony. He
says : —

“ I told Mr. Wall this was a slight matter for making trouble
; that it

was a requirement of the school that boys should repeat the Ten Command-
ments (not mentioning what version) every Monday. He said his boy
should not repeat Protestant Commandments. Pie said something about
proselytisrn. I said, we want your boy to come to school, and grow up to
be a loyal, good citizen. I said that with no regard to Commandments

;
I

had never pressed boys to say this rather than another version. The man
with him (Gill) then said, ‘Mr. Wall, send your boy to school,’ and shortly
after the two left; soon after Mr. Wall came with his boy; he was con-
tinually talking about the Commandments; I said, Mr. Wall, let us know
what we differ in in regard to those Commandments — you can doubtless
tell where the difference lies

;
at that time a boy was coming up stairs with

his books in his hand ; he had the spelling-book containing the Command-
ments

;
I showed them to Mr. Wall, and asked him what he was willing his

boy should say
;
I read the first Commandment, ‘ Thou shalt have no other

gods before me,’ and he said, ‘all right;’ I then read the Commandments
one by one, and asked him his objections

;
at the end of every one he said

‘all right;’ I said, if there is any difference it must be very slight, but
undoubtedly there is some little difference, and I mentioned one where it
says ‘ hallowed’ be the Sabbath day, and stated that in the Catholic version
it was ‘ sanctified.’ Wall said he wanted his boy to say his own Command-
ments. I said the boys had never been compelled to say ‘ hallowed ’ instead
of ‘ sanctified.’ I then said to Thomas, go up stairs and obey your teacher,
and grow up to be a good man. His father said, that is it.”

Now, could a speech have been devised better adapted to allay all the
religious prejudices of the father ? It would do honor to the counsel for
the defence.

There is another point of view in which I desire to consider this testimony
of Mr. Mason. He swears that he read the first Commandment to Mr.
Wall in these words, “Thou shalt have no other gods before me.” Now,
in the Catholic version that portion of the first Commandment runs, “Thou
shalt have no strange gods before me.” Did not Mr. Mason know this
difference ? He swears in the first instance that he did know the differ-
ence, but did not point it out. Then, when he came to what is the second
command in our version, but the second portion of the first in the Catholic
version, Mr. Mason swears Mr. Wall said “ all right.” Now, in our ver



TRIAL OF MCLAURIN F. COOKE. , 03

sion, that portion reads, “ Thou shalt not bow down to them nor worship
them,” while in the Douay Bible the words are, “ Thou shalt not adore them
nor serve them.” And yet, with that glaring difference, Mr. Mason testi-
fies that Mr. Wall said “ all right.” Again, I ask, why did Mr. Mason
allow this ignorant man to say “ all right,” when Mr. Mason knew it was
not “all right”.? Did he not intend to betray and deceive him? And
betraying and deceiving him, did he not give Mr. Wall to understand that
his boy was to repeat the Catholic Commandments ? There is jesuitism for
you, “ pure and undefiled!” That is the man who tells an uneducated
Catholic that he does not intend or wish to proselyte ! Are there words,
may it please your Honor, to express your contempt of such conduct ? But
in the cross-examination, Mr. Mason being pressed to the wall, on this point,
by my associate, attempted to extricate himself from the pitiable condition
he was in, by swearing that on the Wednesday he had the conversation with
Mr. Wall he didn’t know any difference between the two versions of the
Decalogue ! Didn’t know any difference ! And he a master of one of the
public schools of Boston ! And this repeating of the Commandments a
religious exercise, too, in his opinion ! A teacher to instruct a promiscuous
class of Protestant and Catholic children in relation to the Ten Command-
ments, and don’t know that there is a difference of phraseology between
them ! A teacher to object to the Douay Bible and don’t know that King
James’s version of the inspired Word is different in respect to the Deca-
logue ! I blush for Boston, and for Massachusetts, and for our boasted com-

mon schools ! How pitiable is this, too, in a man who swears, like Mr.
Mason, that he objected to the Catholic Commandments being recited, be-
cause they would introduce the Catholic religion into the school, and insisted

upon the Protestant version because it kept there the Protestant religion.
But Mr. Mason swears he did not know the difference of “ hallowed” and
“ sanctified,” and told Mr. Wall that he would not punish his boy if he
would recite the Commandments with that difference. He then makes oath
three several times that Mr. Wall said, he “wanted his son to repeat his
own Commandments.”

But assuming that the counsel for the respondent is exact in his repre-
sentation of the conversation between Mr. Wall and Mr. Mason, what of it?
Mr. Mason admits, as we have seen, that he held out to Mr. Wall induce-
ments to believe that he would make changes in the words of the Command-
ments, but there is nowhere a scintilla of proof that Mr. Mason ever told
either Miss Shepard or Mr. Cooke of those inducements he had thus held out
to the father, and which moved the parent to bring his boy again to the school.
It cannot be denied that Mr. Mason and Mr. Wall had on Wednesday a
consultation, an agreement, over the Commandments, which resulted in a
yielding of something, no matter now how much, to the religious convictions
of the latter — but there is no evidence that Mr. Mason ever mentioned or
suggested the agreement — the compromise, if compromise it was, to either
Miss Shepard or Mr. Cooke. So that, as far as this case is concerned, the
interview is not material or pertinent to the issue. Of what avail to Mr.
Wall was the agreement with Mr. Mason, if the latter would not, and did
not communicate it to his assistant, Miss Shepard, and his sub-master, Mr.
Cooke. Even when Mr. Mason looked in and saw the beating, he neither
then, nor at any other time, spoke of the agreement with Mr. Wall. There
was not a word about “ hallowed ” and “ sanctified.” So, I repeat, that the
case, as far as justification of this respondent is concerned, stands as if Mr.
Mason and Mr. Wall had not had any conference.



64 TRIAL OF MCLAURIN F. COOKE.

Further than this, there is no evidence that Mr. Mason ever said to Mr.
Cooke, or in his hearing or presence, that Mr. Wall desired to have his son
punished. There is evidence of what he told the boy upon the platform

;

but the defence, I was particular to observe, were careful not to inquire, and
Mr. Mason did not say that Mr. Cooke was there, and he was not there. So,
finally, the evidence before your Honor, and upon which you must decide
this case, does not find that Mr. Cooke ever had from Mr. Mason any
knowledge of his interview with Mr. Wall, and so the whipping was not
given under that authority. And we have Mr. Cooke’s confession to the
reporter of the Courier

,
which makes all this so plain that he who runs may

read. Thus perishes the first structure of the defence !
Having now removed this monument of false assumption, and more false

reasoning, which the defendant’s counsel so elaborately and ingeniously
raised in relation to the conference of Wednesday, between Mr. Mason and
Mr. Wall, I am enabled to present to your Honor, next to the narration of
the case, my first formal affirmative proposition, which is

:

I. That neither the acts of the boy Thomas, nor the circumstances of his
acts, nor his well-being, nor the welfare of the school, nor vindication of the
authority of the master, sub-master, or assistants of the school required in
fact, or justified in law, a resort to any physical force by Mr. Cooke upon
the boy.

The boy had refused to repeat the Commandments because his father had
directed him in peril of his life to so refuse. Mr. Mason knew that, Mr.
Cooke knew that, Sophia Shepard knew that. Mr. Mason had, on the first
Monday, consulted Mr. Dyer, the Chairman of the School Committee, on
the point of what was to be done with a scholar who thus refused

;
and Mr.

Dyer swears here that he directed expulsion. He is emphatic in declaring
that he told Mr. Mason to expel them from the school. He took especial
care, and with a directness that did credit to his manhood, to repel the idea
that he counselled, or even suggested whipping. So the Chairman of the
Committee is my first authority in support of my first point.
What in general is the nature of the authority conferred on a teacher in

our public schools ?

That question is nowhere considered at length either in treatises upon
law, or in the volumes of reports of adjudicated cases. The case of State vs.
Pendergrass (2 Dev. and Battle, 365) and that of Commonwealth vs. Ran-
dall (4 Gray, 382) do but touch one incident of the main question. Is
there not, however, may it please the Court, a distinction to be drawn be-
tween private and public schools ? Is it not in the former that the authority

of the teacher is more certainly a delegation of a portion of parental authority
than in the latter ? Leaving that, however, and assuming that the authority

of the teacher in our public schools is from the State, and that, as in the

case at bar, the authority of the parent, as exercised by him, conflicts with
that exercised by the teacher, what is to be done ? What, in the considera-
tion of an enlarged statesmanship arid devotion to the public interests, is the

duty of the School Committee or of the Legislature ? Is it not a narrow,

a superficial, a reckless view of the matter, to say, as did the counsel for the

defence, in his opening, that the authority of the parent is to give way, or

to be overridden by the authority of the teacher, the School Committee, or
the Legislature. Is that the doctrine of the wisdom of this, our Common-
wealth of Massachusetts ? Is it true, as Mr. Mason said, that the father
has nothing to do with the school ? The public heart of the people of the
United States has within a few months been shocked by the narration of



TRIAL OP MCLAURIN F. COOKE. 65

an event of recent occurrence in Italy. What were the facts in the case
of the Mortara boy which so enlisted popular sympathy ! They were first

that a Jew parent employed a Catholic nurse to attend his Jew child.

There was and is a law in the Papal States forbidding a Jew to employ a
Christian servant in his family. The law was passed to prevent attempted
proselytism by over-zealous domestic servants. The nurse, thus employed

contrary to law, either surreptitiously or otherwise, procured the child, so

placed in her charge, to be baptized according to the rites of the church.

There is also a law, in those States, that a child thus baptized, shall, by the

authorities of that State, be removed from the parents and educated as a

Christian, and the Mortara boy was, for that purpose, taken away, much to
the sorrow of the bereaved mother. That was the Mortara case, and the

legal doctrine of the defence justifies and upholds the act of the Papal

authorities. Is that to be the accepted public law of this Commonwealth ?
My client concedes that the teacher has, under certain circumstances, a

right, nowhere conferred by statute, to use physical force to enforce obedi-

ence to his lawful commands. What circumstances permit him to strike
and beat a scholar, the teacher must first decide for himself, upon peril of

having his judgment revised and set aside by competent judicial tribunals.

In the present case the defendant should have temporarily excluded the boy
from the school till the proper authorities were consulted, and if the boy

was still unwilling to comply, and his father was unwilling to have him
comply, then the School Committee could have exercised the powers of

permanently excluding him.

If the parent had not counselled and sustained the conduct of the boy,
the case might have been different.

What is the problem now presented by this school trouble to the City of
Boston for solution? It is this: we have among us, I suppose, eight
thousand Catholic children, who are taught by their parents that thb Prot-
estant version of the Ten Commandments is not the version pronounced
by inspiration or sanctioned by the church. How are you to educate these
children, and so keep them from ignorance and crime, and not to infringe
upon their religious convictions, prejudices, if you please ? This talk about
driving the Bible out of the schools, so enlarged and amplified by the op-
posing counsel, is an absurdity, and nobody knows it better than himself!
The real question is a practical business question. The great purpose of
this city is, among other things, to educate these children so that they will
grow up to be intelligent, loyal citizens. The whole theory of republican-
ism reposes on education of the masses. The whole theory of our public
law takes start from that. So we have established schools, and what should
be their aim? Why, just to teach boys and girls arithmetic, geography,
grammar, and those other secular branches, useful and prudent. Perhaps
in this Commonwealth we have pushed the matter full far enough in the
matter of branches of study. But let that pass. Our schools are main-
tained, or should be maintained, to teach secular branches. We have pro-
visions elsewhere to instruct the young in those matters which concern
another, and we fondly hope, a better world. We have the church, the
Sunday school, and better than all, the mother’s knee, where the future
sovereigns of America are taught to lisp the name of a crucified and
Divine Redeemer. We do not send children to public schools to learn
biblical doctrines.

But I am told that there is a case of conflicting authority here. Sup-
posing there is ? What then ? That is nothing new in public affairs.

5



66 TRIAL OF MCLAURJN F. COOKE.

The great business of legislators and of courts consists in reconciling and
carrying on conflicting or concurrent authorities, and making each complete
in its sphere. The acts of the government of the City of Boston would, if
not regulated by wise laws, conflict with the acts of the sovereignty of the
State. So would that of each of the several States of the United States
conflict with that of the Federal Government, and more especially in the
judicial department. What makes our political institutions superior to
those of Europe, but the great fact that we do, better than they, reconcile
and adjust the authority of the people and of the government ? The true,
the wise policy is to uphold the authority both of the parent and of the
teacher by compromises, which will look to the welfare of all, no matter
what the race or the religious faith.
The counsel for the defence says that five of these boys expelled from

the Eliot School have been arrested for theft. That is the strongest argu-
ment we can have to urge abolition of this requirement regarding the Ten
Commandments. Drive these eight thousand children out of the schools,
and you have not only to increase your police, you will have to increase the
men who administer justice, you will have to increase your prisons and
jails, you will have to increase your taxes. My opponent could not have
given me a better argument than he has for the very thing for which I
contend, which is, that you give the children of the City of Boston that for
which our forefathers left the Old World, crossed the Atlantic, landed upon
the beach of Plymouth, peopled these shores with happy towns and smiling
villages, pressed on over the Alleghanies, filled up the valley of the Missis-
sippi, passed the Rocky Mountains, and now stand, with New England
principles and New England education, upon the shores of the Pacific.
That is what has been done by this great policy of religious freedom.
The opposing counsel has, in his argument to-day, not to your Honor,

but to “ the aliens, the emigrants, and the exiles,” as he himself was careful
to announce, quoted and dwelt at much length, in an argument of striking
felicity of diction, upon the seventh section of the twenty-third chapter of
our Revised Statutes, which, he says, regulates the course and class of
studies in our schools. It provides that “piety, justice, a sacred regard

for truth, love to their country, humanity and universal benevolence, sobri-

ety, industry, frugality, chastity, moderation and temperance, should be
taught.” All these are to be taught, he adds, but first of all piety.

Fie gave such emphatic distinction to the word piety throughout his
elaborate and carefully prepared argument, to which I am compelled to
reply without deliberation or preparation, that my able and astute associate
who conducted the case for the complainant by putting in testimony, making
the opening presentation of the case to your Honor, and examining the wit-

nesses for the defence, was led to consult authorities for the definition of the
word piety. Fie has placed on the table a number of dictionaries, from
which, with your Honor’s permission, I will read.

Webster defines piety to be u Reverence of parents or friends, accom-
panied with affection and devotion to their honor and happiness.”

Worcester says it is, “ The filial sentiment felt by man to the Father of
all ; duty to parents and those in superior relation.”
Sam Johnson, “ Discharge of duty to God ; duty to parents or those in

superior authority.”

And Dr. Jamieson defines it to be, “ Pity ; compassion ; clemency.”
Now, if the other side will only have such piety, such devotion to

parental authority, carried into practical operation in the public schools,

neither my client nor any just man like him will ever complain.



TRIAL OF MCLAURIN F. COOKE. 67

But we are told that there was a conspiracy, a rebellion ; that this ten
years old boy, who fell fainting under the cross-examination of the defence,
is the. ringleader, the head of it, and that he was whipped to beat out of him
that criminal conspiracy and rebellion, and not to make him repeat the Ten
Commandments. The counsel for the defence was very persistent about
conspiracy during the trial, in order to get in certain testimony not other-

wise admissible, but gave it less prominence in his argument to which I am
now replying. This conspiracy suggestion is an afterthought, a fetch,
a pretence. It is the falsehood which oftentimes, yes, generally follows a

mean act. The deed was bad enough, but the lie is worse. The boy, Sir,
was not called up by Miss Shepard for conspiracy. He was not called out
by the ubiquitous Hazelton for conspiracy. He was not sent into Mr.
Cooke’s room for conspiracy. He was not scourged by Mr. Cooke for
half an hour for conspiracy. Mr. Cooke, in his confession, tells us why he
whipped the little fellow. He told the boys at the time that “ Here is a boy
who wouldn’t say the Ten Commandments, and I shall whip him till he
yields, if it takes all the forenoon.” Mr. Cooke didn’t say, “ Here’s a boy
engaged in a criminal rebellion, a conspiracy, and I shall whip him till he
represses the rebellion.” No, not that ! There was no intimation of con-
spiracy on the first Monday. Mr. Mason, on Wednesday, said to Mr.
Wall that his son was expelled for not repeating the Commandments, not
for conspiracy. Mr. Gill heard nothing about conspiracy. Mr. Dyer, on
Monday, was not consulted about conspiracy. Miss Shepard said nothing
about conspiracy. Nobody, till this case came to trial, thought, dreamed
or spoke of conspiracy. Your Honor saw how the defence labored to fix
up in the school appearance of rebellion, and what a complete break down
it was. Mr. Dyer says the boys’ necks were stiffened, which indicated rebel-
lious aims. Miss Shepard imagined rebellion in the fact that, when Wall
refused to repeat the Decalogue, some of the other boys turned round and
looked at him. Mr. Mason saw rebellion in the “flushed face” of Miss
Shepard. Now, if the necks of the boys were so stiff, how did they turn
to look at Wall ? And if a “flushed face ” in Miss Shepard is any indica-
tion that she snuffs rebellion, it must have been apparent to your Honor,
that all the while she was in this Court Room, she was in daily, hourly,
momently, apprehension of a terrible outbreak here.

If it is insisted that the purpose of this flogging was that of an “ exam-
ple ” to prevent the other boys from refusing to repeat the Ten Command-
ments and the Lord’s Prayer, then why was it not done in the presence of
those boys who refused to repeat the Ten Commandments ? Why was
the boy taken away and whipped in another room ? If they wanted
an “example,” if they wanted to inflict vicarious punishment, one boy
to be chastised for twenty, it would seem to have been proper to
punish him where these other boys could see him. How absurd is all
this suggestion about conspiracy ! How trifling ! How puerile ! How
unworthy of presentation to a wise Judge ! And then a conspiracy to
drive the Bible out of this Commonwealth, led by a little boy ten years
old, who spends the twenty minutes before .school time in playing horse
with his little brother of eight years ! And that within a moment of time
when he was to sound the key note which was to signal the war cry of
destruction to our liberties ! Pro pudor !
Your Honor heard how, on the previous Sunday, the boy cried for fear

he should be compelled to say the Commandments on the following Mon-
day

; how there is not one scintilla of evidence that he ever spoke to a single
boy to inspire him to disobey the rules of the school

;

how he was quiet and



GS TRIAL OF MeLATJRIN F. COOKE.

respectful during the reading of the Bible and chanting the Lord's
Prayer; how the teacher skipped him by accident, not at first seeing him in
his place — an act of sublime disregard of one who was to be the destroyer
of liberty

;
how Wall was not the first, but the fifth, on that fatal Monday,

to refuse ; how he did not answer impudently, as Rolmn did ; how he pro-
tested during the cruel beating that he would repeat the Commandments if
his parent would allow 1 Your Honor heard and made note of that, and I
need not consume the flying hours of twilight to dwell upon it. They
might as well contend that they whipped this child for the breaking of the
Atlantic Cable as for either conspiracy or rebellion.

Therefore, I submit that your Honor must rule that no circumstances
existed to warrant a resort by the teacher to any physical force.

II. Assuming, what we deny, that the circumstances did justify a resort
by Mr. Cooke to physical force, then the force used was unlawful, because
immoderate, excessive and cruel, and therefore the respondent is guilty, and
should be punished.

I need not enlarge on this proposition. Your Honor heard the testi-
mony of the two boys, O’Hara and McLaughlin, for the complainant, as to
duration of whipping, and the evidence of Dr. Salter. Your Honor saw
the hands of the boy, still marked by the blows of the respondent, inflicted
as we charge. You saw the rattan with which the scourging was done, and
observed how it was nearly as long as the boy Wall is high. You observed
how the defence failed utterly to show that the time was less than half an
hour. You heard* the confession of the respondent to the Courier reporter
that the punishment was severe. You remember how the little hands were
put twice in cold water to subdue inflammation, prevent swelling and vesi-
cation, and to wash away blood. I thought when I heard that testimony,
that I could see how the respondent was so earnest to make attempt to
remove the marks of his cruelty. But all the waters of the green ocean
could have availed nothing. The damning spots would not away.

It is said by the defence that other boys have had their hands put in
water for like purposes by Mr. Cooke. If that be so, it is clearly apparent
that it is high time the whipping by the respondent should be stopped.
And then there is no boy who swears that he ever had his hand in water,
for that reason, twice, which shows that this punishment of Wall was ex-
cessive in the estimation of the respondent, who is a physician by educa-
tion. And besides, Mr. Cooke in his confession explains the purpose of
the bathing.

I do not propose to dwell upon it further, because I am conscious that I
am addressing an intelligent Court, that has heard all the facts of the case,
except to suggest, that under no circumstances, in my opinion, is it justifi-
able for a teacher to whip so young a child with a rattan nearly three feet
long on the bare hand. The hand is too important a member to be
endangered in that way. Under the practice in England it never happens
that the scholar is punished upon the naked hand — other parts of the
person there are, where punishment may be inflicted.

In my view, and in consideration that this teacher is an educated phy-
sician, it makes no difference whether he put the hands of the boy in water
before or after the swelling ; because, if he put them in before, it shows
that he knew that the punishment had been so severe that the hands would
swell

;
and if he put them in afterwards, it shows that the punishment was

so bad that he did not wish the boy to go out of the school house in that

condition. But the counsel say that the boy did not want his hands put in
water, for he wanted to show them I Is not that very natural for a boy



TRIAL OF MCLAURIN F. COOKE. 69

whipped as he was? Would he not very much desire to show to his
mother and father how he had been treated by an imprudent teacher ? Is
not that another of the hundred other facts which make apparent the
honesty of the boy?
As for myself, may it please the Court, if it is to be decided that a

teacher may whip a boy as this boy was whipped, and that that is mod-
erate punishment, rather than undertake to teach a school in the Common-
wealth of Massachusetts, and to whip a little boy ten years old, with a
rattan stick, for thirty minutes, to make him say the Decalogue, I would beg
my bread in narrow streets. I have no respect — I will not say for the
humanity— but I have no respect for the consideration of any man who
can tell a little fellow to hold out his hand, and then pound it half an hour.
If I were a teacher, and any committee told me that that was a part of my
duty, I would throw up the situation, and say that so long as I had
humanity and manhood I would never consent to inflict that torture upon
a child.

Again, may it please your Honor, has it hot occurred to you that if this
boy had been the child of some person less humble than this complainant

;

if he had been your son, — if your Honor will pardon the personality of
the appeal, —and he had stated, as did this boy, that his father did not desire
him to repeat the Commandments, that the punishment would have been
postponed for conference with you ? But no time, no delay, no respite,
could be afforded to this humble laboring man ! There was no self-willed
personal disobedience by the boy Wall. He was willing to repeat either
version if his father would say so. If any one was morally culpable, it
was the father and priest, and they should have been whipped, and per-
haps Mason, Cooke, and Company would have better success in beating
out their heresies than our forefathers had with the Quakers. Let me sup-
pose a case in illustration of my line of thought. Suppose the manufactur-
ing interests of Lawrence, in this Commonwealth, were in full prosperity

;

suppose that fact gave the municipal government to citizens belonging to
the Catholic Church, and then that the School Committees were Catholics,
and the teachers of the public schools. Suppose then that those Catholic
authorities should recommend that the pupils learn the Ten Command-
ments and repeat them once a week, and the Ten Commandments should be
construed to mean the Catholic version, and a pupil, a son of a Protestant
clergyman, refused, by command of his parent, to learn and repeat the
Catholic version, and that thereupon, without inquiry or with it, the teacher
should beat that boy thirty minutes ! would there not be a popular indig-
nation in this State that would shake the Commonwealth from end to end.

III. If your Honor decides, —what is not to be supposed, — that this
punishment is not immoderate and cruel, then, we say, even assuming that
it is not, that still the defendant is guilty, because, in inflicting it, he acted
not for the welfare of the child, but was inspired by malice, and thus beat
the boy to gratify bad motives, and so his purpose being an unlawful one,
no matter whether the whipping was moderate or immoderate.
The opposing counsel in his argument has laid much emphasis upon

section five, chapter eight, of the rules of u the School Committee, and reg-
ulations of public schools of the City of Boston,” and characterizes it as
passed in execution of the statute of 1855, which requires the School Com-
mittee of each town and city in this Commonwealth to require daily read-
ing of the Bible in the common English version. The section of School
Committee regulations is as follows : —



70 TRIAL OF MCLAURIN F. COOKE.

“ The morning exercises of all the schools shall commence with reading- a portion
of Scripture, in each room, by the teacher, and the Board recommend that the read-
ing be followed Avith the Lord's Prayer, repeated by the teacher and children in con-
cert, and that the afternoon session close with appropriate singing

;
and also, that

the pupils learn the Ten Commandments, and repeat them once a week.”

Now, your Honor will perceive that this regulation is drawn with care
and circumspection. It was inspired or drawn, I venture to say, by a wise
man and a good man — by a man whose purpose and hope was to reconcile
differences and enable all creeds to meet in our public schools as around a
common altar of education. Note its phraseology. It is directory only in
the point commanded by the Legislature

;
it is advisory in all else. It

evidently intends to give teachers an opportunity to exercise discretion for
the good of all ; to adapt their requirements to religious prejudices of
child and parent. If Miss Shepard had acted with the discretion of a just
woman, not inflamed by sectarian wrath as she is, and had not made a rule,
to be enforced by whipping, out of what is a mere recommendation, there
would not have been trouble to this day in the Eliot School. There was
no difficulty about the reading of the Bible, and is none now. There was
no difficulty about Old Hundred, and is none now. Miss Shepard may
chant that old war song of the Puritans, if she pleases, till every wall of the
school house is vocal with its notes I The trouble, and the only trouble, is
about the Decalogue.

From this let me ask your HonoEs attention to my first proposition in
regard to those recommendations of the School Committee. We say,

—

I. That the recommendation of the School Committee, that the pupils
learn the Ten Commandments in the Protestant version, and repeat them
once a week, when interpreted as they are by the teachers of the Eliot
School, to be enforced at all events, even by whipping and beating a pupil
who refuses to learn and repeat them, by reason of the religious convic-
tions of himself or his parents, is unjust, intolerant, unlawful, and void.

That this reciting of the Commandments is done as a religious exercise,
no one doubts. The Committee intended it as such. Its place in the order
of proceedings of the school makes that clear, as does the position required
of pupils at the time.

Besides, Mr. Mason swore directly to that point, when he said that he
excluded the Catholic version of the Decalogue to keep out the Catholic
religion. Taking this as a premise, let me invite attention to the Bill of
Rights, the Constitution, the statutes of this Commonwealth.
The first article of the Bill of Rights declares that “ All men are born

free and equal, have certain natural, essential, and unalienable rights.”

“It is the right, as well as the duty, of all men in society publicly, and at stated
seasons, to Avorship the Supreme Being, the great Creator and Preserver of- the uni-
verse. And no subject shall be hurt, molested, or restrained, in his person, liberty,
or estate, for worshipping God in the manner and seasons most agreeable to the dic-
tates of his oavu conscience ; or for his religious professions or sentiments, provided

he doth not disturb the public peace, or obstruct others in their religious Avorship.”
— Massachusetts Declaration of Rights. Art. II.
“All religious sects and denominations demeaning themselves peaceably and as

good citizens of this Commonwealth shall be equally under the protection of the
laAv ; and no subordination of any one sect or denomination to another shall ever he
established by laAV.” — Amendments to the Constitution of Massachusetts. Art. II.

“ All moneys raised by taxation in the tOAvns and cities for the support of public
schools, and all moneys which may he appropriated by the State for the support of
common schools, shall be applied to and expended for no other schools than those
which are conducted according to law, under the order and superintendence of the



TRIAL OF M«LAURIN F. COOKE. 71

authorities of the town or city in which the money is to be expended ; and such
money shall never be appropriated to any religious sect for the maintenance, exclu-
sively, of its own schools.” — Const. Mass., 18th Art. Amend.

** The School Committee shall never direct to be purchased or used, in any of the
town schools, any school books which are calculated to favor the tenets of any par-
ticular sect of Christians.” — Rev. St., eh. 23, sec. 23.

“ Sec. 1. In determining the qualification of scholars to be admitted into any pub-
lic school, or any district school in this Commonwealth, no distinction shall be made
on account of the race, color, or religious opinions of the applicant or scholar.”

“ Sec. 11. Any child, who, on account of his race, color, or religious opinions,
shall be excluded from any public or district school in this Commonwealth, for
admission to which he may be otherwise qualified, shall recover damages therefor, in
an action of tort, to be brought in the name of said child by guardian or next friend,
and in Court of competent jurisdiction, to try the same, against the city or town by
which the said school is supported.” — Stat. 1855, eh. 256.

I do not propose to enlarge upon these provisions of our fundamental
law. My associate (Mr. Wilder Dwight) has done it in a manner so clear,
so able, so statesmanlike, that I am sure it rests in your Honor’s memory.

I only say now that no Legislature, no School Committee, no master,
and no sub-master has, under the Constitution of the Commonwealth of
Massachusetts, right to require of a pupil in a public school to learn and

repeat the Ten Commandments as part of a religious exercise or service,
providing such learning and repeating offends the religious opinions of the
pupil.

If they do, all the boys together
,
or any one of them alone, has a consti-

tutional right to refuse, and the teacher or the School Committee who
strikes upon him a blow for refusing is guilty of criminal assault. And
that point, if sound, is conclusive of this whole case.
The other side have referred your Honor to the case of Donahoe v.

Richards
,
(38 Maine, 379.) In relation to that case, I submit first, that

this a case of expulsion by the Committee, and not of whipping by a
teacher. Next, as to all those general remarks in the opinion of the
Court upon which my brother on the other side relies, they each and
every one repel the very conclusion he would draw from the case. Let me
call attention to the following from page 398 : —

“ The Common Schools are not for the purpose of instruction in the theological
doctrines of any religion or of any sect. The State regards no sect as superior to
any other, and no theological views as peculiarly entitled to precedence. It is no
part of the duty of the instructor to give a theological instruction

;
and if the pecu-

liar tenets of any particular sect were so taught, it would furnish a well-grounded
cause of complaint on the part of those who entertained different or opposing reli-
gious sentiments.

“ But the instruction here given is not, in fact, and is not alleged to have been, in
articles of faith. No theological doctrines were taught. The creed of no sect was
affirmed or denied. The truth or falsehood of the book in which the scholars were
required to read, was not asserted. No interference, by way of instruction, with
the views of the scholars, whether derived from parental or sacerdotal authority, is
shown.
“ The Bible was used merely as a book in which instruction in reading was given.

But reading the Bible is no more an interference with religious belief, than would
reading the mythology of Greece or Rome be regarded as interfering with religious
belief, or an affirming of the pagan creeds. A chapter in the Koran might be read,
yet it would not be an affirmation of the truth of Mahomedanism, or an interference
with religious faith. The Bible was used merely as a reading book, and for the
information contained in it, as the Koran might be, and not for religious instruc-
tion

;
if suitable for that, it was suitable for the purpose for which it was selected.

No one was required to believe or be punished for disbelief, either in its inspiration
or wrant of inspiration — in the fidelity of the translation or its inaccuracy — or in
any set of doctrines deducible therefrom.”



72 TRIAL OF MCLAURIN F. COOKE.

How different is this case when Mason swears that he excluded Catholic
and insisted upon Protestant Commandments, to keep out or keep in differ-
ent religious faiths !

The Court will observe how the word “ read ” runs through this Maine
case ; how it turned upon the point that the Bible wa^ used merely as a
reading book. Observe on page 404—

“ It would be a novel doctrine that learning to read out of one book rather than
another, or out of one translation rather than another, of a book conceded to be prop-
er, was a legislative preference of one sect to another, when all that is alleged is, that
the art of reading only was taught, and that without the slightest indication of or in-
struction in theological doctrines.”

Again, on page 408, the Court say—
“The real inquiry is, whether any book opposed to the real or asserted conscien-

tious views of a scholar can be legally directed to be used as a school book, in which
such scholar can be required to read.”

II. Such a recommendation which compels a Catholic child to learn and
repeat Protestant commandments as a religious exercise and duty, is a
contradiction and falsehood in morals, and absurd upon its face.
We have a commandment reading, “Thou shalt not take the name of

the Lord thy God in vain.” And what is compelling a child to repeat the
Ten Commandments as a religious exercise when he believes It a sin so to
do, and thus makes the repetition a mere lip service, but taking the name
of God in vain ?

Again, you require a child to say In one breath, “ Honor thy father and
thy mother, that their days may be long in the land which the Lord thy God
giveth thee.” And then when the child refuses to repeat the Command-
ments because his father has forbidden him to repeat them, you say, “ What
has your father got to do with this school ? ” You teach him one moment
to obey his parents, and the next whip him thirty minutes with a rattan
because he will not disobey them ! 0 the folly and the crime of it

!

III. The compelling of boys thus to repeat the Ten Commandments is,
when taken in connection with another statute in the Commonwealth, a
hardship which no religious government could ever tolerate. I desire to
call attention in vindication of my third point to chapter 240 of Supplement
to Revised Statutes. It is as follows : —

“ Sec. 1. Every person who shall have any child under his control, between the
ages of eight and fourteen years, shall send such child to some public school within
the town or city in which he resides, during at least twelve weeks, if the public
schools within such town or city shall be so long kept, in each and every year during
which such child shall be under his control ; six weeks of which shall be consecutive.

“ Sec. 2. Every person who shall violate the provisions of the first section of this
act shall forfeit, to the use of such town or city, a sum not exceeding twenty dollars,
to be recovered by complaint or indictment.

“ Sec. 3. It shall be the duty of the School Committee in the several towns or
cities to inquire into all cases of violation of the first section of this act, and to ascer-
tain of the persons violating the same the reasons, if any, for such violation, and they
shall report such cases, together with such reasons, if any, to the town or city in their
annual report

;
but they shall not report any cases such as are provided for by the

fourth section of this act.
“ Sec. 4. If, upon inquiry by the School Committee, it shall appear, or if upon the

trial of any complaint or indictment under this act it shall appear, that such child has

attended some school not in the town or city in which he resides, for the time required
by this act, or has been otherwise furnished with the means of education for a like
period of time, or has already acquired those branches of learning which are taught

in common schools, or if it shall appear that his bodily or mental condition has been



TRIAL OF MCLAURIN F. COOKE. 73

such as to prevent his attendance at school, or his acquisition of learning for such a

period of time, or that the person having the control of such child is not able, by
reason of poverty, to send such child to school, or to furnish him with the means of
education, then such person shall be held not to have violated the provisions of this act.

“ Sec. 5. It shall be the duty of the town or city to prosecute all violations of
this act.”

So if parents do not send their children to school there is authority by

this, and a subsequent statute, to send them to Deer Island, or to any other
place of confinement. Now, with that compulsion upon a parent to send a
child to school, there is another regulation providing that if a child like

Wall goes to school, and obeys his father, he shall be whipped thirty min-

utes. If he does not go to school he goes to Deer Island. So a Catholic

boy has Deer Island on one side, and a rattaning on the other.

The counsel who has argued this case so elaborately for the defence,
came late in the course of his remarks to consider the Ten Commandments,
and to lay great stress upon the assumed triviality of the suggestion that
Catholics could have conscientious convictions in that relation. Now, may
it please your Honor, this matter of conscience is not a matter for philoso-

phers or for astute lawyers to judge. Conscientious convictions inhere alike

to educated and to uneducated people. And the more uneducated the per-
son, the still more dangerous and more likely to be wrong is his conscience.
For there is, of all things on earth, nothing so bad, nothing so deleterious
to public or private welfare, as an uneducated conscience. The counsel
suggests that there is no material difference between the Protestant version

of the Ten Commandments and the Catholic version. Now, I venture to
reply that there is a substantial difference, and to state what I understand

to be the difficulties which Catholic priests and Catholic parents have with
the Protestant form of the Ten Commandments.

First. In reciting the Commandments they mean to recite them as the
word of God. Now, Catholics do not recognize the common English ver-
sion, King James’s version, of the Bible as the word of God. They recog-
nize no version of the Scriptures as the word of God, unless certain, by the
approbation and authority of the Church, that the version is faithful

; there-

fore they cannot, they say, conscientiously recite the Ten Commandments
in the English Protestant version.

Second. It is an article of faith decreed by various councils, e. g., of"
Nicaea and Trent, that Catholics may venerate the image of Christ and of
the Saints, kiss them, uncover their heads and prostrate themselves before
them, referring these actions to Christ and the Saints themselves, whose
prototypes they consider the images to be. (Council of Trent, Sess. XXV.)
Now, the phraseology of the Protestant version obviously conveys the idea
forbidding the veneration of images: “Thou shalt not bow down before
them.” Catholics believe they may bow down, prostrate themselves
before them, but they cannot adore them. Therefore they must object to
the Protestant version, as obviously contrary to their faith.

Third. Catholics object to the division of the first Commandment, as it
is contained in the Catholic Catechism, into a first and second Command-
ment, as it is made in the Protestant Ten Commandments, as strengthening
the idea of forbidding the veneration of images. “ Thou shalt not make
graven images unto thyself,” means either in order to adore them, or in
order to venerate them. Now, if it only means that they should not be
adored, then it is a mere explanation of “ Thou shalt have no strange
gods before me,” and forms no separate Commandment. Therefore the



74 TRIAL OF MCLAURIN F. COOKE.

Protestant says the Catholic dividing it into a separate Commandment,
wants to convey the idea that also the veneration of images is forbidden.

In the rest of the Commandments there is perhaps no important differ-
ence between the Protestant and Catholic version.

This division of the Protestant tenth Commandment into the ninth and
tenth, made by the Catholics, is natural, as the objects forbidden in the
ninth and tenth are different— the ninth referring to the sixth, and the
tenth to the seventh of the Catholics.

I do not know how it impressed your Honor, but to me it was an un-
pleasant spectacle to see the opposite counsel endeavor to ridicule the con-

victions of so large a body of Christians as those bound together by that
Church which, Macaulay tells us, has seen the beginning of all governments,
and may see the end

;
an organization with a faith its members believe to

have been once delivered to the saints, and with a worship consecrated by
a long line of saints and martyrs ; a religion that is a reality, and is making
its voice heard in every part of the habitable globe, and working out its
destinies in every phase of outward manifestation. I would not have ar-
raigned for triviality the religious convictions of the members of that church.
This question of what shall be or what shall not be a matter of conscien-
tious conviction, may it please your Honor, is a question which, in this
country of all others, every man must and will decide for himself. Indeed,
when we draw back the folded curtains of Time, and look upon ages long
gone by, and come thence, from point to point, to our own day, we see that
it is those questions of conscience, which in our judgment are the most
trifling, which have established, and then convulsed and upturned empires.
Take for example the reformation in England, and we have a striking

example that it is often the symbol of a doctrine itself, upon which the con-
troversy turns, and which is made its critical point; just as in this case
the repeating the Ten Commandments is made the symbol of a great prin-
ciple of religious faith. The Ten Commandments are not doctrines in the
opinions of Mr. Mason ; they are symbols of doctrines. Now, the assumed
great truths which underlaid the separation of the Church of England from
the Catholic Church had doubtless for years been seething in the brain of
the reformers

;
but how strange, how apparently trifling was the issue which

the great movement at last presented ! I remember to have read in a very
interesting book entitled the a Chief of the Pilgrims,” a life of Brewster,

by Steele, and to have been struck by a statement that in the year 1562,
or fourth of Elizabeth’s reign, the matter of separation was regularly and

ably discussed in the National Convention of Clergy, and that these were

the points debated and insisted on by the reformers : —
I. The discontinuance of holidays except Sundays and the feasts that

related to Christ.

II. That the minister in officiating should always turn his face to his

people.

III. That the ceremony of the cross be omitted in baptism.
IV. That kneeling at communion be left at the discretion of the or-

dinary.

V. That the minister in ministering wear only the surplice.
VI. That the use of organs be removed.

Now, could any thing be more trifling, in our opinion, than these six
points ? What if the minister did now and then get his back to the audi-
ence, what of it ? And of what consequence to the reformers could have



TRIAL OF MCLAURIN F. COOKE. 75

been in principle the cross in baptism ? Do we not now insist upon the
administration of water, in some way, in that ceremony, and is not that a
form and symbol as bad as the cross ? And then the kneeling and the sur-
plice, and last of all the organs ! Why, if I would allow myself to devote
half the effort to a burlesque of those points which the opposite counsel

has to the different versions of the Ten Commandments, I could make the
contrast very marked. The point of kneeling affords a good illustration
of how far a symbol may be a manifestation of religious conviction. The
Anglican Church objects to the Catholic Church because it allows pros-
tration before images. The Low Episcopal Church objects to the High
Church because its members bow at the name of Jesus in the Creed. The
rigid Puritan objects because the Low Church Episcopalian kneels in prayer.
The Quaker thinks it proper to worship with his hat on his head. Thus
we see how far we Protestants carry these mere symbolic representations.
Observe, too, how in the early days of the Puritans, they persistently ex-
pelled the word “ church” from use as a word to describe a place of wor-
ship, and adopted “ meeting house ; ” how the Quaker clings to “ thee ” and
“ thou.”

If you run through the history of the world you will find that nearly all
the martyrdoms have been upon these trivial matters. We have had
within a short time a most significant example. The adoption by the
English of the Minie rifle in India compelled soldiers to bite the end of the
cartridge in loading. The Hindoo troops objected because they said the
cartridges were greased with fat from beef, and the beef was with them a
sacred animal ; and so they revolted. The Mahommedans objected be-
cause they said their cartridges were greased with pork ; and so they re-
volted. And that matter of greased cartridges nearly cost the English
government the loss of one hundred and fifty millions of subjects in the
East.

So there is an instance of a regiment of troops revolting in China be-
cause required to wear a stock about their necks made of leather tanned
from the skin of oxen. They were Hindoos, and the animals were sacred
to them.

Or to go back a little farther, to a case bearing exactly upon this Catho-
lic point. I remember to have read that when, many, very many years
ago, Jesuit missionaries were in Japan, and the authorities of Japan had
directed that they be expelled from the country or burned, and had placed
the fagots, and when out in the harbor was the ship which might carry
these Jesuits away in safety, and the authorities said to them, “ There is the
ship, and there is the cross

;
you must either go to the ship stepping upon

that cross, or go to the fagots,” — every one of them went to the fagots
and was consumed by them.

All the martyrdoms of the time of Henry VIII. and Mary were for what
may appear, to those of us not interested especially, to be trivial things.
So all those of the Roman empire. And now, when these things, so slight
to us, have taken such hold of the hearts and consciences of men as to
change the destinies of empires, shall not we of this Commonwealth, at
least, look with respect and consideration upon what is avowed here in
relation to the Protestant and Catholic versions of the Decalogue ? Is it
not a case for mutual sacrifice and mutual gain ? Is not the public good to
be preferred over our own prejudices, and by our own — I mean the
prejudices both of Catholic and Protestant.

The counsel upon the other side has endeavored to have it understood



V

76 TRIAL OF MCLAURIN F. COOKE.

that the boy Wall had said that he would not say the “ damned Yankee
prayers.” The defence put a witness upon the stand, brought here by Mr.
Cooke, — and the only wonder is, that holding the terror of the rattan over
their heads, he had not suborned the whole forty of his school here,— who
swears that he was playing marbles in the street, that his marble ran into
a crowd of boys, that he ran along to pick it up, and while he was there he
heard some boy say that he would not say their damned Yankee prayers,”
and he thinks it was Wall, but cannot say certainly upon that point.

I have now passed over hurriedly the main facts in this case,*and here
would have been glad to leave it to the decision of the Court.

I had hoped that this case at the bar, which is but a complaint of assault
and battery, under circumstances, to be sure, of aggravation, might have
been adjudged without manifestation of sectarian contention. I regret ex-
ceedingly that the defendant and his counsel have deemed it necessary for
their protection to evoke the aid of so dangerous an element in public
affairs. The complainant and his counsel have, from the first, striven to
keep down and out of the case every thing which pointed to a strife of race
or of religion. Thus it was that my colleague, on the first day, resisted the
motion of the opposite side for continuance, but asked that the question
might at once be speedily and justly disposed of, and in that manner pop-
ular emotion allayed. The defendant has, by his mode of defence, given to
this case an aspect of religious controversy, most unfortunate, I fear, for
the public welfare of Boston, and more especially for the interests of the
public schools of Boston. To him and his counsel, then, belongs the re-
sponsibility — whether it be honor or dishonor — of the consequences
which may ensue.

I wish to say, once for all, that it was the determination and purpose of
my associate and myself, when this case commenced, to treat it purely as a
case of assault and battery. We supposed it would be a case which, like
other cases before your Honor, would be disposed of justly, but speedily.
Mr. Wall desired that the respondent should be brought up, and dealt with
according to law. But so far did I suppose that this case was to be dis-
posed of in a short time, that on the first day of the trial only my associate
appeared for the complainant. But when the defence claimed that it was
a case involving civil and religious liberty, I felt that it was important to
meet it, and place it properly before your Honor. It would have been my
wish to have left out altogether this sectarian emotion. So far was that
the case, that it was agreed by my brother and myself not to open the case,
but to put on the boy Wall, the other two boys, and the physician, and
there to rest. But when we had done that, the opposing counsel rose, and,
in a tone of complaint, said, “We do not know upon what ground the
prosecution intends to stand.” My associate then explained to your Honor
the points of law upon which we relied, and in words not one of which was
directed to the inflammation of sectarion emotion.

It was not consonant with my own feelings, nor those of my associate, to
go into a discussion of the constitutional questions raised — chiefly because
we did not feel ourselves competent to them — by reason of not having the
time to devote to the long research which a proper discussion of those large

questions of civil and religious liberty would require. If any evil conse-
quences, then, grow out of this case, I repeat to your Honor, as a matter of

good faith to the Court, that they will not spring from the conduct, either

of Wall, senior, the boy Wall, his counsel, or furthermore, from the conduct
of this priest, Father Wiget himself.



TRIAL OF MCLAURIN F. COOKE. 77

Let me suppose a case. Father Wiget had in his church, on that Sun-
day, 900 scholars. Suppose that 500 of those scholars went to another

school, and that school happened to be the Mayhew School. Suppose that
400 of these scholars went to the Eliot School. Suppose that in that

Mayhew School, where there are 500 boys who listened to the same teach-
ing from Father Wiget, that the boy Wall did, there has been nothing but

peace and harmony from the beginning. May I be allowed to state to
your Honor, as a matter of fact, that this is the precise case here ?

Of the 900 boys who heard Father Wiget’s teaching, 500 are in the
Mayhew School, and there has not been one act of disturbance or dis-
obedience in that school. Does the disturbance come there from “ this

dark and dangerous power ” ? There is no dark and dangerous power

there, but there is a great deal of indiscretion in the teachers of the Eliot

School. The master and assistants of the Mayhew School, as I happen to
know, do not taunt the boys there about their religion. There is not a

“schoolmarm” there, who, when a Catholic boy has repeated the first
verse of the Protestant version of the Ten Commandments, turns round
and says to him, “ Does it hurt you ? ” What was the purpose of Miss
Shepard when she said that to the boy Wall ? Did she intend to inquire
about his physical system, his vocal organs ? No ; she intended to insult
him, and insult his religion. That was the purpose she had, and there you
see the intent cropping out, which has made this whole difficulty.
My brother has had a great deal to say about Irishmen. He has had a

great deal to say about people who came from Europe. He has had
a great deal to say about the glories and imperial destinies of our own
country. He has told us what these people receive when they come to
this land. They do receive much ; but when they came here they had
reason to think they came to a land of civil and religious liberty. There is
a book, written some years ago, by Mr. Joseph Kay, an Englishman and a
Protestant, sent to Western Europe, as travelling Bachelor of Cambridge,
to make examination of the condition of the poorer classes, and of the
schools in Catholic countries, in which he makes this Significant report

:

that, taking all the countries of Europe, and considering the number of the
school houses to the inhabitants, the number of the teachers to the inhab-
itants, and the advantages of education, Catholic France is first, while
Protestant England is last on the list. Then he goes on and makes it
apparent that in Catholic Austria Protestants have entire freedom of
religious education. It is a conspicuous fact in public history, about which
my brother could have known if he had spent a little time in examining
the question, that in Catholic Austria there are schools where Protestants
are allowed to have their own Protestant clergymen to teach their children
in religious exercises. We have announced by the last steamer, even, this
fact : that the Emperor of Austria, the sovereign of the most ultra Catholic
country of all Europe, has presented the Protestants of the country a lot
of land upon which to build a Protestant school house. While here, in the
Protestant Commonwealth of Massachusetts, we not only will not give
Catholics a piece of ground to build a school house upon, but we will not
let them respect and reverence their own religion in the school houses
which they help to build.
The counsel for the defence, in his elaborate argument, saw fit to enlarge

upon the advantages to this Commonwealth, and to every Christian com-
munity, of the Bible. I take it that nobody denies that, and that nobody
thinks of denying it. He went on to enlarge upon the Protestant Bible,



78 TRIAL OF MVLAURIN F. COOKE.

and to compare it with the Douay version of the Bible. He averred that
there was the purpose, not to introduce the Douay Bible into the schools
of the Commonwealth, but to drive out every Bible. I wish to answer the
suggestion, so far as I am concerned, by a word which is expressed in a
monosyllable.

There is intimation in his argument that the Catholic Church had no
belief in the Bible

;
that they do not want the Bible preserved. Where,

may it please your Honor, where did we get our Protestant Bible ? Where
did we get this King James version of the Bible ? Where would have
been the sacred manuscripts from which it is made, if it had not been for
the Roman Catholic Church ? Where would have been those priceless
treasures, had it not been for the pious monks, who spent years in copying
them for preservation ? Before the Protestant Bible was translated or
brought into circulation, there were hundreds of versions of the Bible
already in existence.

Cuvier, the great naturalist, says that whatever else may be said of the
Catholic Church, it preserved the Christian Scriptures during the darkness

of the middle ages. My brother talks as though there was a conspiracy
among the Catholics to drive the Bible away, when their missal, their
whole service, are made up from the Bible. They would have no worship
were it not for that Bible. If the counsel will go to any of the Catholic
bookstores and make inquiry, he will find that the Catholic booksellers
publish and sell in the United States, in proportion to the population of
Catholics and Protestants, as many Bibles as Protestant booksellers. And
yet we are told there is a dark power endeavoring to drive the Bible from
the Commonwealth! The Bible is the foundation of that church. I hap
pen to have in my hand an article in “ The Christian Examiner,” an ultra
Protestant magazine, written by Mr. George Livermore of this city, a
Protestant by birth and education, who has devoted much time to the sub-
ject of different editions of the Bible, and who makes abounding refutation
of the absurd assumptions of the counsel upon the other side. It is unjust
to say that the Catholic Church does not recognize and protect the Bible,
that holy and sublime word of God, over which saints have meditated in
cells, around which her scholars have wreathed commentaries of priceless
value, and from which virgins and monks have chanted in the breathless
hours of midnight

;
the Bible, that gem of matchless price, reflecting the

might, the sweetness, the anger, the love of God
;
the Bible, that noblest,

greatest, dearest of all books !

My brother, in the course of his argument, had a great deal to say, com-
mencing with George Washington and coming down to the day of the
Know-nothing organization —had a great deal to say about opinions of
some of the great men of the Republic who have passed the narrow gateway
which separates the known from the unknown. He laid much stress upon
the undying words of the great statesman who sleeps by the side of the
Pilgrims upon ihe sounding shores of Marshfield.

If the counsel intended to adduce his great name in this case, by way of
any rebuke to the ground which we have taken, it was not only ill-judged,
but illogical. 1 can only say that every word I ever read that Mr. Webster
ever uttered in relation to the Bible, I would have written in letters of

living light, al! over the Commonwealth of Massachusetts, and I am ready
to assent to tie m, line by line. A suggestion is made in connection with
the Girard W 11 case, and although Mr. Webster uttered those sentiments
quoted by my brother, he lost his case. The Supreme Court decided the



TRIAL OF MCLAURIN F. COOKE. 79

case against him, and perhaps his remarks were not pertinent to the case

before the Court. So the remarks of the gentleman here are not pertinents

The question is this simple question, whether the respondent did unlawfully
beat the boy Wall.
May it please your Honor, I love the strong, noble, manly, generous

faith of my Protestant fathers, and by reason of my confidence in its
strength I am not afraid of that other faith of which mine is but an offshoot,
and which starts from the same foundation stone : I am not afraid to see in
our busy streets, nor upon the boundless domain of the United States be-
yond the Mississippi, those Catholic churches rise, which bear upon the top-
most spires and towers that symbol of a living God and of an undying
faith. If my brother will but pass into that Indian country, which has
been the field of the Jesuits’ labors, untrodden by the foot of other white
men, unvisited by Protestant missionaries, he will find there among the
Indians the little chapel with the cross : he will find the impressive ceremo-

nies of the Catholic Church : he will find that intelligent, educated mem-
bers of the Society of Jesus have been distributing this blessed Bible of
inspiration, and laboring there for years to convert the red men to the Gos-
pel of Christ. If I had time I would like to discuss the subject of how
successful have been the care and culture of the Jesuits over the Indians.

The counsel for the defence alludes to Father Wiget as a foreigner — a
man unaccustomed to republican institutions. Now, it is proper to say that
this reverend father in the church has been in the United States these

many years, and that he comes from a canton in Switzerland, which has
been a republic for five hundred years.
When the counsel makes so dishonoring remarks about the Jesuits and

the dark power at St. Mary’s, does he happen to know who is the head of
that parish of St. Mary’s ; that venerable, pious, painstaking man, one of
the most estimable that it has ever been my fortune to meet

;
who has

attested his devotion to the United States in every manner in which patri-
otism can be put to the test. When my brother arraigns that man, does he
know that Father McElroy, when our arms were contending upon a foreign
field, left his church and volunteered as a humble minister of the Gospel
to follow our victorious troops, and bestow upon them the blessings of
that Bible which my brother now says the Catholics would drive out of
Massachusetts. Sir, is this Father McElroy, who so followed the flag of
his country, with the Bible in one hand and the cross in the other, to be
brought into a court room and arraigned for want of patriotism and fealty
to our Great Republic ?

In conclusion, I desire to say that we may have proven the assault and
battery, by Cooke, beyond possibility of question. There is no denial of
the fact of the beating, whipping, wounding, and scourging

;
and the ques-

tion is whether, as McLaurin F. Cooke did beat Thomas J. Wall with a
rattan stick, as set forth in the complaint, that beating was lawful or
unlawful.

I submit to your Honor that the case is one which calls for the highest
punishment which can be inflicted for that kind of an assault, — I mean for
an assault not with a dangerous weapon. If there is a question of race or
sect in this case, as the other side suggest, it is whether this humble Irish-
man is not to have the rights guaranteed to a Protestant under like circum-
stances, by reason of the fact that he happens to be an Irishman and a
Catholic.

I submit to your Honor another point, and because the case has taken a



80 TRIAL OF MCLAURIN F. COOKE.

relation which lifts it a little out of the routine of judicial determination,
and makes it a public question. It is suggested that there is to be a com-
motion growing out of this case in the city of Boston. If, then, the welfare
of the city is at stake, what is the surest and best way of protecting it —
not only to satisfy persons who may be interested in the fortunes of Mr.
Wall —who is to have the protection and advantages which the law gives
to the most humble citizens, but to conciliate all interests.

I have the right to demand that the highest punishment known to the
law be inflicted on this respondent, and do demand it. The facts and cir-
cumstances of the case, and public justice, demand it. If your Honor
should, however, — which we will not anticipate, — feel that he cannot sen-
tence the respondent in that extreme manner, but must abate the punish-
ment somewhat from the extreme limit, then I suggest to your Honor,
whether as a matter of public policy—whether as a matter of the welfare
of the schools of Boston—whether as a matter for the consideration of all
of us — it is not the duty of your Honor to decline to take final jurisdiction
of the case, and to send the respondent to the proper tribunal for trial, so
that he and the complainant alike may have the benefit of investigation by
a jury of his townsmen. I respectfully submit whether, in the complicated
questions which have arisen — large questions of constitutional law —
whether by reason of the multitude of avocations pressing upon your
Honor, it would not be better, upon the whole, in case this large punish-
ment cannot be inflicted, that the case be sent where all parties may be
appeased and satisfied by the finding of a jury.

The case was then adjourned to Wednesday, April 6th.



TRIAL OF MCLAURIN F. COOKE. 81

DECISION OF JUDGE MAINE.

Commonwealth
,
on complaint of William Wall, vs. McLaurin F. Cooke.

Wednesday, April 6.

The complaint in this case was made on the 16th day of March last, and
charges that “ McLaurin F. Cooke, teacher, on the 14th day of March,

1859, committed an assault and battery on Thomas J. Wall, son of the
complainant, under circumstances of aggravation ; that Thomas was eleven
years of age, a pupil in the Eliot School, and defendant a teacher, and that

defendant struck, beat and wounded Thomas with a stick for the space of
thirty minutes, inflicting serious wounds.”

Upon this complaint a warrant was issued by order of Court, the defend-
ant, Cooke, arrested, and in open Court pleaded not guilty to the complaint.

Upon this issue, evidence was introduced on the part of the Common-
wealth to prove the assault, and by the defendant explanatory of the mat-
ter, and from the evidence so introduced the following facts appeared :

—

That the defendant was the First Assistant Teacher in the Eliot School,
Samuel W. Mason, Principal

;
that Thomas J. Wall was a scholar in said

school, and had been for six or seven years last past. That during his
attendance the Bible in the common English version was read in the school,
and that the scholars sufficiently advanced were required to read or commit
to memory the Lord’s Prayer and the Ten Commandments.
That by the rules and regulations of the school, the Commandments were

repeated by the scholars every Monday morning, and that the boy Wall
had repeated them without objection until Monday, March the 7th, when
he refused, and was discharged from the school. That an interview was
had between the father of the boy and the Principal of the school, and the
boy returned to the school.

That on Monday, the 14th of March, he refused again to read or repeat
the Commandments, giving as reasons for so doing, that his father had
agreed with Mr. Mason that he should not say them. That his father had
told him for his life not to say them, and that his priest had also told him
not to say them, and that on the Sunday previous to the 14th the priest,
(Father Wiget,) while addressing nine hundred children of St. Mary’s
Church, of whom Wall was one, told them not to be cowards to their religion,
and not to read or repeat the Commandments in school, that if they did he
would read their names from the altar.

That Wall came to the school on Monday with the determination not to
read or repeat them.

That before the 14th Father Wiget had promised to give him a medal,
blessed, and that since the 14th he had given it to him; that he had given
them to other boys, and he knew no reason for his giving it to him ; that
Father Wiget said at the time he was a good boy.

It further appeared, from the evidence, that there was a concerted plan
of action on Monday, the 14th, between many of the boys to refuse to obey
the orders of the school, if required to read or repeat the Lord’s Prayer or
the Commandments, and that two-thirds of the scholars composing the
school where Wall attended, and numbering about sixty, declared their in-
tention not to

#
comply with the rules of the school in that particular. And

from all the evidence it was manifest that Wall was one of, if not the prin-
cipal actor.

6



82 TRIAL OF MCLAURIN F. COOKE.

He refused to repeat the Commandments for the reasons given.
He was told by Mr. Mason that his father had requested him to make

him repeat them, and that if he did not, to punish him severely. Wall
still refusing, was punished by the defendant with a rattan stick, some three
feet in length, and three-eighths of an inch thick, by whipping upon his
hands.

From the time when the punishment commenced to the time when it
ended, repeated inquiries were made of Wall if he would comply with the
requirements of the school. Some thirty minutes time was occupied in the
whole. During this time there were several intervals, at two of which the
defendant was absent from the room some little time.
The blows were not given in quick succession, but with deliberation.

During the chastisement Wall was encouraged by others, who told him not
to give up. This was while defendant was absent from the room.
The master ceased to punish when Wall submitted to the requirements

of the school.

From the effect of the punishment Wall’s hands were swollen, he was
taken to the sink by the defendant twice, and his hands held in water.
The physician who saw his hands in the afternoon of Monday, and pre-

scribed for them, after describing their appearance, says that he did not

think the injury very severe ; that at the time he thought he would recover
from it in twenty-four hours.
Now, was the punishment so inflicted without justification, and in viola-

tion of the constitutional rights of Wall ? and was the punishment excessive?
Before considering the constitutional rights of the pupil while in school,

it may be proper to see by what right or authority the schools themselves
exist.

The constitution recognizes the existence of schools, and declares that
“ all moneys raised by taxation in the towns and cities for the support of
public schools, and all moneys that may be appropriated by the State for
the support of common schools, shall be applied to and expended to no
other schools than those which are conducted according to law, under the
order and superintendence of the authorities of the town or city in which
the money is to be expended

;
and such moneys shall never be appropriated

to any religious sect, for the maintenance, exclusively, of its own schools.”
The schools recognized by the constitution are those which are to be
conducted according to law, under the order and superintendence of the
authorities of the town or city where the moneys are to be expended.
The statutes by which our schools are established and governed, provide

“ that it shall be the duty of the President, Professors, and Tutors of the
University at Cambridge, and of the several colleges, and of all preceptors
and teachers of academies, and of all other instructors of youth, to exert
their best endeavors to impress on the minds of children and youth, com-
mitted to their care and instruction, the principles of piety, justice, and a
sacred regard to truth, love to their country, humanity and universal benevo-
lence, sobriety, industry, and frugality, chastity, moderation, and temper-

ance, and those other virtues which are the ornament of human society, and
the basis upon which a republican constitution is founded.”
By statute it is also provided, “ that the School Committee of each town

and city in this Commonweath, shall require the daily reading of some por-
tion of the Bible in the common English version, and shall direct what other
books shall be used in the public schools.”
The School Committee for the city of Boston, in their published regula-

tions, direct and recommend as follows :

—



TRIAL OF MCLAURIN F. COOKE. 83

“ The morning exercises of all the schools shall commence with reading
a portion of the Scripture in each room by the teacher, and the Board
recommend that the reading be followed with the Lord’s Prayer repeated
by the teacher alone, or chanted by the teacher and the children in concert,
and that the afternoon session close with appropriate singing, and also that

the pupils learn the Ten Commandments
,
and repeat them once a week”

Do these laws and regulations, when carried out, conflict with the con-
stitutional rights of any pupil ? It is claimed that they do, and the Con-

stitution is cited, or that portion of it supposed to apply to the case, which

is as follows :

—

“ That it is the right as well as the duty of all men in society publicly
and at stated seasons to worship the Supreme Being, the great Creator and
Preserver of the universe. And no subject shall be hurt, molested, or
restrained in his person, liberty, or estate, for worshipping God in the man-
ner and seasons most agreeable to the dictates of his own conscience, or for
his religious professions or sentiments, provided he doth not disturb the

public peace, or obstruct others in their religious worship.

Can the position assumed be a correct one ? Our schools are the granite
foundation on which our republican form of government rests. They were
created and are now sustained by our constitution and laws, and the almost
unanimous voice of the people.
But a pupil in one of them has religious scruples of conscience, and can-

not read or repeat the Commandments, unless from that version of the
Bible which his parent may approve.
Now what is to be done in such a case ? If he has a constitutional

right to refuse to read or to repeat them from books furnished for the
school by statute law, then to punish him in any way would be a great
wrong. lie could not be expelled from school for standing upon his con-
stitutional rights. Neither could he be punished by corporal punishment

;

and if the plea of conscience and his constitutional rights would protect him
from reading the Bible, is it not equally clear that he could not be com-
pelled to hear it read ?

If, then, these are constitutional rights, secured to the children in our

common schools, at any time when one pupil can be found in each public
school in the Commonwealth with conscientious scruples against reading the
Bible, or hearing it read, the Bible may be banished from them, and so the
matter of education may be taken from the State government and placed in
the hands of a few children.

Not Roman Catholic children alone. For if the plea of conscience is
good for one form of sectarian religion, it is good for another. The child
of a Protestant may say, “ I am a conscientious believer in the doctrine of
universal salvation. There are portions of the Bible read in school which
it is claimed by others tend to prove a different doctrine

;
my conscience

will not allow me to hear it read, or to read it.”
Another objects as a believer in baptism by sprinkling. “ There are

passages in the Bible which are believed by some to teach a different doc-
trine. I qpnnot read it, conscience is in the way.”

Still another objects as a believer in one God. “ The Bible, it is claimed
by some, teaches a different doctrine

;
my conscience will not allow me to

read it or to hear it read.” And so, every denomination may object for
conscience sake, and war upon the Bible and its use in common schools

Those who drafted and adopted our Constitution, could never have in-
tended it to meet such narrow and sectarian views. That section of the



84 TRIAL OF MCLAURIN F. COOKE.

Constitution was clearly intended for higher and nobler purposes. It was
for the protection of all religions — the Buddhist and the Brahmin, the
Pagan and the Jew, the Christian and the Turk, that all might enjoy an
unrestricted liberty in their religion, and feel an assurance that for their
religion alone, they should never, by legislative enactments, be subjected to
fines, cast into prisons, starved in dungeons, burned at the stake, or made to
feel the power of the Inquisition.

It was intended to prevent persecution by punishing for religious opinions.
The Bible has long been in our common schools. It was placed there by
our fathers, not for the purpose of teaching sectarian religion, but a knowl-
edge of God and of His will, whose practice is religion. It was placed
there as the book best adapted from which to “ teach children and
youth the principles of piety, justice, and a sacred regard to truth, love
to their country, humanity, and a universal benevolence, sobriety, modera-
tion and temperance, and those other virtues which are the ornaments of
human society, and the basis upon which a republican constitution is
founded.”

But, in doing this, no scholar is requested to believe it, none to rr^eive
it as the only true version of the laws of God. The teacher enteis into
no argument to prove its correctness, and gives no instructions in tl eology
from it. To read the Bible in school for these and like purposes, or to
require it to be read without sectarian explanations, is no interferen ‘,e with
religious liberty.

If the plea of conscience is good against the reading or use of the Bible,
why is it not equally good against any other book, or the language ii which
the book may be printed ?
The Jew, for conscience sake, will only read the Scriptures fi\mthe

Torah,* and why may not the pupils in our schools refuse to read the Bible,
until they are sufficiently learned to read it in the original Hebrew ?

If tender consciences may rightfully claim such unlimited power, what
constitutional injustice is daily done in our courts of law, by swearing the
Protestant by the uplifted hand, the Roman Catholic upon the Evangelists,
the Jew upon the Pentateuch, while facing the East, with his head cov-
ered, and refusing to admit the Infidel as a witness at all !

There is another part of the case, which should here be considered. It
is the argument, that in disobeying the commands of the school, Wall was
acting under the lawful authority of his father.

Can the authority of the parent, and that of the teacher, over the pupil,
exist at the same time, in and during the hours of school ?

That school approaches nearest to perfection that most resembles a well-
governed family, where nothing is required excepting that which is be-
lieved to be for the best interest of every member, and where all require-
ments are obeyed, and where all are subject to one head.

If “ a house be divided against itself, that house cannot stand ; ” so will

it ever be with our schools, if the authority of the master and that of the
parent enter the school-room together.

The master is there by authority of law. He is also there by the im-
plied authority and consent of the parent, who sends his child

#
to him for

instruction, knowing at the same time the duties of both master and pupil.
By sending his child to school he surrenders so much of his parental

rights over the child as would, if exercised, conflict with the reasonable

rules and regulations of the school.

* Parchments upon which are written in Hebrew the laws of Moses.



TRIAL OF MCLAURIN F. COOKE. 85

If this is not so, why may not the parent command his child while in
school to read from one book and to reject another ? And what are th.e
rights and what the authority of the master in such a case ? What be-
comes of the power of the School Committee, whose business it is to direct

what books shall be used in the public schools ?

From the argument it is understood that in this case there are conflict-
ing rights —-the rights of conscience of the scholar, the rights of the parent
over him, and the rights of the defendant as master — and that these
rights are to be upheld by compromises. What the compromise is to be,
the Court is not informed.

Can it be that those pupils whose religion teaches them that the Douay
version of the Bible is the only true record of the Scriptures, shall be per-

mitted to read and repeat the Lord’s Prayer and the Ten Commandments
from their own Bible ? Grant the request, and what follows ?

It is enacted by the statute “ that the School Committee shall never
direct to be purchased or used in any of the town schools any school books

which are calculated to favor the tenets of any particular sect of Chris-
tians.”

So by such a. compromise, we see the very thing would be done which is
now complained of, that of favoring the tenets of a particular religion.

Is the compromise to be that of a division of the school moneys, allow-

ing separate schools to be carried on in accordance with religious views f

Our Constitution declares that no money raised by taxation for the sup-

port of schools shall ever be appropriated to any religious sect for the main-
tenance, exclusively

, of its own schools.
The last point for the consideration of the Court is, was the offence one

which required punishment ? Had the master the right to inflict corporal
punishment ? and, if he had, was the punishment excessive, or inflicted
through malice?

The apparent magnitude of the offence depends somewhat upon the
standpoint from which it is viewed. From one aspect, it appears to be of
the most innocent and simple nature.
A child desired the privilege in school of reading the Commandments

from his Bible, the only one that his religion would allow him to read. It
would seeili to a generous mind tyrannical, to deny so simple and innocent
a request

;
and it would indeed be so, were that the whole of the matter.

That most wonderful specimen of human skill and human invention, the
Suspension Bridge, that spans the dark, deep waters at Niagara, with
strength to support the heaviest engines with cars laden with their freight,

and defying the whirlwind and the tempest, is but the perfection of strength
from the most feeble beginning. A tiny thread was put safely secure
across the abyss, and final success became certain. Thread after thread
were interchanged, until iron cables bound opposite shores together.
May not the innocent pleading of a little child for its religion in school

\

if granted, be used like a silken thread, to first pass that heretofore impas-
sible gulf which lies between Church and State, and when once secure,
may not stronger cords be passed over it, until cables which human hands
cannot sever shall have bound Church and State together forever ?
As for the right of inflicting punishment in schools by the teacher, it has

been conceded ever since our schools were established, if in severity it
does not exceed the nature and magnitude of the offence, and is not in-
flicted in haste, or with malice on the part of the teacher. The case finds
that the father of Wall had requested that he should be kept in school and



TRIAL OF MCLAUlilN F. COOKE.

d?3</

86

made to repeat the Commandments, and that he should be punished severe-
ly if he refused.

It was not necessary that the father should give his consent for the in-
flicting of reasonable punishment, neither can the teacher justify an exces-
sive punishment by authority from the father.
The parent cannot delegate a power that he does not possess, and as he

could not punish his child severely without a sufficient cause, neither could
the teacher do it without sufficient cause. The nature and extent of the
punishment have already been considered. It now becomes necessary to
look at the provocation.

The mind and the will of Wall had been prepared for insubordination
and revolt by his father and the priest. His refusal to obey the commands
of the school was deliberate. His offence became the more aggravated by
reason of many others acting in concert with him, to put down the author-
ity of the school. The extent of the punishment was left as it were to his
own choice. From the first blow that fell upon his hand from the master’s
rattan, to the last that was given, it was in his power to make every one
the last.

He was punished for insubordination, and a determination to stand out
against the lawful commands of the school. Every blow given was for a
continued resistance and a new offence. The offence and the punishment
went hand in hand together. The punishment ceased when the offence
ceased.

By this the Court is not to be understood as justifying the inflicting of
punishment upon a scholar so long as he holds out against the commands
of the school. The punishment must not be extended beyond the limits of
sound discretion, and this every master must decide at his peril.

In this case the punishment inflicted, when compared with the offence
committed, and all the attendant circumstances as they appeared upon the
trial, was neither excessive, nor inflicted through malice by the defendant.

The defendant was thereupon discharged, and in company with several
friends— including many teachers of the city— left the court room.