# Robertson v. Bullions

> New York Supreme Court · July 1, 1850 · 9 Barb. 64

URL: https://www.frixlaw.com/law-library/cases/5457883

## Case

- **Full name:** William Robertson, and thirteen others, members of the church in full communion, known as the Associate Congregation of Cambridge, adhering to the principles of the Associate Presbytery of Pennsylvania formerly, now the Associate Synod of North America v. Alexander Bullions, James Coulter, James Shiland, Robert McLelland, Peter Hill, and the Associate Congregation of Cambridge adhering to the Associate Presbytery of Pennsylvania formerly, now the Associate Synod of North America
- **Court:** New York Supreme Court
- **Decided:** July 1, 1850
- **Citations:** 9 Barb. 64; 1850 N.Y. App. Div. LEXIS 156
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Hand
- **Judges:** Cady, Hand
- **Cited by:** 37 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5457883

## Opinion text

Hand, J.
The important questions arising in this case call for a careful consideration. Our civil and religious institutions differ so widely from those of the country whence we derive the common law, that upon some points but little light, comparatively, is received from that source. And in consequence of the diversity of legislation on the subject, very little aid can be obtained- from the decisions of the courts of sister states, and the contrariety of opinion in our own courts, unfortunately leave the matter in some perplexity.
These considerations naturally produce doubt and timidity in the judicial examination of a subject so delicate, and so closely connected with the very well-being of society. All the judge can do in such cases is to inquire, with patience and careful research, what is the law of the case; and that, ascertained, declare it; minding that the via trita is the safest, and avoiding judicial legislation.
The first step in the inquiry is into the nature of the conveyances admitted by the pleadings. Those from French are, perhaps, the most important, because the church edifices were both built upon the premises described therein. The first deed was given in 1786, the year after the church or congregation was organized; and the first house was built soon after. Gilmore’s deed of another parcel was given in 1799. In 1810, French and his wife executed another deed of the same premises described in his deed of 1786. The incorporation took place in 1826. Whatever estate was held by the grantees in *79 these three deeds, no doubt passed to the corporation upon that event, by force of the fourth section of “ an act to provide for the incorporation of religious societies,” passed April 5, 1813. The first conveyance by French was for the sole and only proper use, benefit and behoof of this associate congregation ; and was to the grantees and their successors forever, without the word “ heirs.” Notwithstanding this was before our revised statutes, and the church was incapable of taking and holding real estate, because it had no corporate or legal existence, still it took a beneficial interest, which equity would protect. And the same rule applies to the land described in Gilmore’s deed. “ A use,” says Lord Bacon, “ to a person uncertain, is not a void limitation, but executeth not till a person be in esse.” (Bacon Read, on Statute of Uses, 302, last Amer. ed.) It has been held that a devise was good, when not in mortmain, to a corporation to be thereafter created. (Inglis v. Sailor's Snug Harbor, 3 Peters, 114 . Beatty v. Kurtz, 2 Id. 566.) And property in some cases may be granted or dedicated to the use of a body incapable of holding in its own right. (Potter v. Chapin, 6 Paige, 649 . 2 Kent, 286. 4 Id. 508. Burr's Ex'rs v. Smith et al. 7 Vt. Rep. 241. Baptist Church in Hartford v. Witherell, 3 Paige, 296 . Vidall v. Girard's Executors, 2 How. U. S. Rep. 127. Dutch Church in Garden-street v. Mott, 7 Paige, 77 . Wright et al. v. Trustees of the Methodist Episcopal Church, 1 Hoff. Ch. Rep. 202 . Shotwell v. Mott, 2 Sand. Ch. Rep. 46 . City of Cincinnati v. White, 6 Peters, 435 . 9 Cranch, 331 .) The beneficial interest in property may become, and frequently is, vested in objects as cestuis que trust whose existence is not recognized at law; and of course it may be held for the benefit of many objects, as cestuis que trust, whose separate existence as the recipients of property is not recognized or admitted by the common law. {Hill on Trustees, 52, 53, Am. ed. et supra.) If the deed given by French in 1810 had been valid as a conveyance, perhaps a question would have arisen whether the property conveyed thereby passed to the corporation, under the special trust contained therein, though it seems to me quite clear that it would. *80 If not, it would have remained in the trustees, in the deed, or the survivors or survivor, or his heirs, as the case may be; and notwithstanding the allegations in the bill and the admissions in the answer in relation to these trusts, the case would be defective for want of parties. But the deed of French given in 1810 is entirely ineffectual, either as a conveyance or declaration of trust. In 1786 he conveyed away all his interest in the same lands to seven persons as trustees. Soon after, a house of worship was erected thereon. The trusts declared in that deed were valid, and consequently the cestuis que trust took a beneficial interest thereby, which it was not competent for the grantor, unless he had reserved that right in the first deed, as was done in the Hewley case, even with the consent of all the trustees, to revoke or change. Much less did an attempted conveyance to three of the seven original trustees, together with eleven others, and to their heirs forever, and to the use of different cestuis que trust, and after the lapse of 24 years and the erection of a place of worship by the first cestuis que trust, divest the latter or any of them of their rights. French had nothing to convey; those having the legal estate had no power to yield or alter it. Even if, strictly, only a life estate passed at law, equity, beyond all question, under the circumstances, would have secured this property to the society. (Vidall v. Girard’s Ex’rs, swpra ; and see Baptist Church of Hartford v. Witherell, supra, and 9 Cowen, 437.) The entire deed is not shown to us; but it is probable the covenant for further assurance, also provided for this, had it been necessary. Besides, it is not shown whether the grantees in the first deed were dead when the society was incorporated; nor even at the time the bill was filed. Nor does the second deed purport to be a release or conveyance of the remainder, but rather a confirmation of the first. It is true, the first deed was to certain persons described as trustees of this congregation, and their “ successors foreverwhile the deed of 1810 was to certain persons also named as trustees of said congregation, “ their heirs and assigns,” and in the habendum clause “ to their heirs and assigns forever.” But the last deed recites that *81 its object was to confian the title, not only in those who were in full communion and who should compose the congregation, but to those they had chosen or might choose for trustees, and their successors in office forever. The first deed is full as strong in relation to the succession, and contains a covenant for further assurance to the persons named as trustees, and their successors, for the sole use of the said associate congregation. This covenant could not be performed by a further conveyance to other quarters, for the benefit of new parties. But the first deed, without the word “ heirs,” would undoubtedly convey the property in trust to the grantees named therein, so as to pass the legal title to the corporation when that should come into existence. By a devise to a man and his successors, the fee vests without the word heirs. (2 Jar. on Wills, 180. 8 Vin. Ab. 209.) And though in a deed to a natural person, the words “successors forever” would not pass the fee here, before our revised statutes, they would to a corporation. (Co. Lift. 8 b. 4 Cruise, 442.) So that the proper words to vest the fee in the corporation, when the society should become incorporated, were used in this deed. A corporation, it was held, took the legal title when the lands had been previously conveyed to “ the elder or minister, deacons, wardens or vestrymen, and their successors in office of the First Baptist Church in Hartford.” (Baptist Church in Hartford v. Withered, 3 Paige, 296 .) A different construction would be most unreasonable, where the scope and object of the conveyance were perpetual, and the society had expended so much upon the property. ( 3 Peters, 147 .) This view of the case, renders it unnecessary to decide what would have been the nature and effect of that instrument had it been valid.
The deeds from Dr. Bullions in 1827, and from Mr. Stevenson in 1835, passed the property therein described, directly to the corporation. For, although the conveyances are to certain persons by name, as trustees, and not to the corporation by its corporate name, there is sufficient appearing upon the face of the instruments to designate the real grantee, and show the intention of the parties; and besides that, having capacity to take the legal estate, the use, I think, would be executed at *82 once in the corporation. It is not necessary to inquire therefore whether a conveyance in trust for a religious corporation is now good. (McCartee v. Orphan Asylum Society, 9 Cowen, 437. Theo. Sem. of Auburn v. Childs, 4 Paige, 423 . Shotwell v. Mott, 2 Sand. Ch. Rep. 51 . 1 R. S. 728, 9, §§ 49, 58; 737, § 129. 2 Id. 57, § 3.)
To a proper understanding of the law applicable to this case, it is necessary to ascertain the character and qualities of these religious corporations.
The first general act in this state upon this subject was that of 1784. (1 Greenl. Laws, 71.) The provisions of that act affecting denominations not otherwise therein particularly specified, were substantially the same as the law passed March 27th, 1801, (1 K. & R. 336,) of which the material parts of our present law, “ an act to provide for the incorporation of religious societies,” passed April 5th, 1813, are a transcript. The first section of the latter is applicable to the Protestant Episcopal Church, and does not affect this case. But it may be remarked that the electors of church wardens and vestrymen are confined by that section to the “ church or congregation,” omitting the word “ society and the church wardens and vestrymen elected, together with the rector, if there be one, form a vestry and are the trustees; and as such, are a body corporate. And the church wardens and vestrymen have power “ to call and induct a rector to the church or congregation,” as often as there is a vacancy. The second section is applied to the Reformed Protestant Dutch Church or congregation, and makes the minister, elders and deacons, or if no minister, then the two latter, “ elected according to the rules and usages of such churches within this state,” trustees of such “ church or congregation and such trustees are authorized to become incorporated by filing a proper certificate.
The third section applies to all other churches, congregations or religious societies, except a few special cases, found in this and subsequent statutes. It enacts, “ That it shall be lawful for the male persons of full age, belonging to any other church, congregation, or religious society, now or hereafter to *83 be established in this state, and not already incorporated, to assemble at the church, meeting house, or other place where they statedly attend for divine worship, and by plurality of voices, to elect any number of discreet persons of their church, congregation or society, not less than three nor exceeding nine in number, as trustees, to take the charge of the estate and property belonging thereto, and to transact all affairs relative to the temporalities thereof; and that at such election every male person of full age, who has statedly worshipped with such church, congregation or society, and has formerly been considered as belonging thereto, shall be entitled to vote; and the said election shall be conducted as follows : the minister of such church, congregation or society, or in case of his death or absence, one of the elders or deacons, church wardens or vestrymen thereof, and for want of such officers, any other person being a member or a stated hearer in such church, congregation or society, shall publicly notify the congregation of the time when, and place where, the said election shall be held, at least fifteen days before the day of election; that the said notification shall be given for two successive sabbaths, or days on which said church, congregation or society, shall statedly meet for public worship, preceding the day of election ; that on the day of said election, two of the elders or church wardens, and if there be no such officers, then two of the members of the said church, congregation or society, to be nominated by a majority of the members present, shall preside at such election, receive the votes of the electors, be the judges of the qualifications of such electors, and the officers to return the names of the persons who by plurality of voices shall be elected to serve as trustees for the said church, congregation or society, and the said returning officers shall immediately thereafter certify under their hands and seals the names of the persons elected to serve as trustees for such church, congregation or society, in which certificate the name or title by which the said trustees and their successors shall forever thereafter be called and known, shall be particularly mentioned and described ; which said certificate being proved or acknowledged as above directed shall *84 be recorded as aforesaid ; and such trustees and their successors shall also thereupon by virtue of this act be a body corporate by the name or title expressed in such certificate.”
The fourth section applies to the trustees of all the churches, congregations, and societies embraced within the first, second, and third sections. It requires them to have a common seal, and empowers them “ to take into their possession and custody all the temporalities belonging to such church, congregation or society, whether the same consist of personal or real estate, and whether the same shall have been given, granted, or devised directly to such church, congregation or society, or to any other-person for their use, and also by their corporate name or title to sue and be sued in all courts of law or equity, and to recover, hold, and enjoy all the debts, demands, rights and privileges, and all churches, meeting houses, parsonages and burying places with the appurtenances, and all estates belonging to such church, congregation or society, in whatsoever manner the same may have been acquired, or in whose name soever the same may be held, as fully and amply as if the right or title thereto had originally been vested in said trustees; and also to purchase and hold other real and personal estate, and to demise, lease, and improve the same for the use of such church, congregation or society, or other pious uses,” not exceeding a certain amount. “And also to repair and alter their'churches or meeting houses, and to erect others if necessary, and to erect dwelling houses for the use of their ministers, and school houses and other buildings for the use of such church, congregation or society; and such trustees shall also have power to make rules and orders for managing the temporal affairs of such church, congregation or society, and to dispose of all moneys belonging thereto, and regulate and order the • renting of the pews in their churches and meeting houses, and the perquisites for the breaking of the" ground in the cemetery or churchyards and in the said churches and meeting houses for burying the dead, and all other matters relating to the temporal concerns and revenues of such church, congregation or society,” and appoint a clerk, treasurer, and collector, &c.
Section fifth declares the number of trustees necessary to do *85 business. By section sixth, they continue in office three years and are divided into three classes; the term of office of one expiring every year; and that section provides for filling vacancies by expiration of office, death, &c.
The seventh section declares, “ That no person belonging to any church, congregation, or society, intended by the third section of this act, shall be entitled to vote at any election succeeding the first, until he shall have been a stated attendant on divine worship in the said church, congregation or society, at least one year before such election, and shall have contributed to the support of the said church, congregation or society, according to the usages and customs thereof; and that the clerk to the said trustees shall keep a register of the names of all such persons as shall desire to become stated hearers in the said church, congregation or society, and shall therein note the time when such request was made; and the said clerk shall attend all such subsequent elections, in order to test the qualifications of such electors, in case the same should he questioned.”
The eighth section reads as follows: “ And be it enacted, that nothing in this act contained shall be construed or taken to give to any trustee of any church, congregation or sociéty, the power to fix or ascertain any salary to be paid to any minister thereof, but the same shall be ascertained by a majority of persons entitled to elect trustees, at a meeting to be called for that purpose; and such salaries, when fixed, shall be ratified by the said trustees, or a majority of them, by an instrument in writing under their common seal, which salary shall thereupon be paid by the said trustees out of the revenues of such church, congregation, or society.”
The ninth section allows any “religious corporation” (other than those chartered) when deemed necessary, and for the interest of such “ religious corporation, to reduce their number of trustees,” but not to less “ than three trustees in any one of the said religious corporations.”
Sections ten, twelve and fifteen relate to the amount of yearly revenues, and also to the report thereof to the chancellor or a justice of the supreme court, or a county judge by the churches *86 in New-York, Albany and Schenectady; and provides that in case of an excess that officer is to report the same to the legislature.
Section eleven empowers The chancellor, on the application of the corporation, to authorize the sale of its real estate, (not granted by the state, &c.) and direct the application of the avails by the corporation “ to such uses as the same corporation with the consent and approbation of the chancellor shall conceive to be most for the interest of the society to which the real estate so sold did belong.”
Section thirteen, (no doubt referring to the former statutes,) establishes and confirms “ every corporation of any church, congregation or religious society,” made in pursuance of any law of this state in conformity to the directions of this act; and in case of a dissolution by reason of non-compliance with the statutory regulations, provides for re-incorporation within six years.
Section fourteen applies solely to the Methodist Episcopal Church in the city of New-York. '
The sixteenth section provides, “ that whenever any religious corporation shall be dissolved by means of any nonuser or neglect to exercise any of the powers necessary for its preservation, it shall be lawful for the religious society which was connected with such corporation to re-incorporate itself in the mode prescribed by this act, and that thereupon all the real and personal property which did belong to such dissolved corporation at the time of its dissolution shall vest in such new corporation for the said society.”
The law of 1826, (ch. 47,) amendatory of this act, provides for holding over in case of omission to elect, and authorizes a re-election to fill vacancies. And the second section declares that in case of an omission of any church, congregation or religious society to elect trustees, church-wardens, vestrymen or other officers, such church, congregation or religious society shall not be deemed or taken to have been thereby dissolved, but those officers shall hold over, provided a new election shall take place within one year. And the third section of the amendatory act of 1844, (ch. 158,) is a repetition of this section.
*87 The statute from which we have so largely extracted, is no doubt valid; and corporations could be created under it before the recent revision of our constitution, notwithstanding the two-thirds” clause in the constitution of 1821. (Art. 7, § 9.) It was a statute then existing. (Id. k 13.) And besides, if passed since, would clearly be good upon the same grounds that sustained the general banking law. (See Gifford v. Livingston, 2, Denio, 382.)
Then what kind of corporations are they
The answer to this inquiry may be of some importance in this case. Chancellor -Kent, in his commentaries, denominates th em ecclesiastical corporations,” and Angel &. Ames in their valuable work on corporations, upon this authority, adopt the same application. (2 Kent, 274. Ang. & Ames on Corp. 33.) Neither cites any decision. Considering the high authority from whence the remark emanates, I express a dissent with much timidity, but with deference, I think it incorrect. I doubt whether, in a technical sense, there are any ecclesiastical corporations in this state, particularly under the third section of this act. As an ecclesiastical body, they have no legal existence; they have no ecclesiastical power. They are not controlled by and can not control the church, or any church judicatory, or interfere in spiritual concerns. Their object and purpose is to manage the temporalities of the society. “ Ecclesiastical corporations,” says Blackstone, “ are where the members who compose it, are entirely spiritual persons; such as bishops, certain deans and prebendaries; all arch-deans, parsons and vicars, which are sole corporations; deans and chapters at present, and formerly prior and convent, abbots and monks, and the-like; bodies aggregate.” And in describing the class of lay corporations known as eleemosynary, he adds: “ and all these eleemosynary corporations are, strictly speaking, lay and not ecclesiastical, even though composed of ecclesiastical persons, and although they in some things partake of the nature, privileges and restrictions of ecclesiastical bodies.” ( 1 Bl. 470 . And see Phillips v. Bury, 1 Ld. Ray. 6; Cawdreys case, 5 Co.fol. 15; 2 Bqc. Abr. 2; 1 Kyd, 22.) It is not the profession of piety *88 by the individuals that renders the corporation of which they are the members, ecclesiastical. The corporation must be spiritual in a legal and not in a popular or scriptural sense. Lay corporations may be for the advancement of religion, and the members may all be clergymen, even, but that does not make the corporation ecclesiastical. The king is said, in Cawdrey’s case, to be “ vicar of the highest of kings,” and he is a corporation, but I believe he is not considered an ecclesiastical corporation. And if he were, it would be because he is the head of the church, an ecclesiastical body in law. Dartmouth College is a lay and not an ecclesiastical corporation, and would be if the individual members were all ecclesiastical persons. (Dartmouth College v. Woodward, 4 Wheat. 518 . See the opinion of Mr. J. Story. Ang & Ames, 34.) And one distinctive feature of ecclesiastical
corporations is, that they are subject to the jurisdiction of the ecclesiastical courts or the visitatorial power of the ordinary. ( 1 Bl. 471 , n. 1. Tom. Dic. 436. 1 Kyd, 22. Holt, C. J. l Show.252.) Our religious corporations have no such amenabilities. There the ordinary is the visitor of ecclesiastical corporations, and from him there is an appeal. The king, as the “ supreme ordinary,” visits the metropolitan, and the metropolitan the bishop. Church wardens (in England) are said to be lay corporations, although instituted for the benefit and advancement of religion and to suppress profaneness and immorality, and to see that public worship be performed with due decency and reverence; and are elected by the parish or lire minister and parish. (1 Bac. Abr. 597. Dawson v. Fowle, Hardr. 378. Holt, C. J. in Rex v. Rees, 12 Mod. 116. Toml. Dic. “ Church wardens,” 1 Lill. Abr. “ Church wardens.” 1 Burn’s Eccl. L. 378.) It may be added, that our corporations have power to build school houses, and dwellings for the minister, and other buildings, &c. If these were ecclesiastical corporations, there would be no visitor, for the reason that no person or officer, with us, has any such jurisdiction. That system is a part of the ecclesiastical polity of England, and does not apply to our religious corporations. (2 Kent, 304.)
If lay corporations, then they are either eleemosynary or civil. *89 If the former, the visitatorial power is with the founders or their heirs; unless it has been delegated by them to some other person. If a civil corporation, they are not subject to this species of visitation at all. (2 Kent, 304.) Perhaps for the purpose of ascertaining the power of a court of chancery in this case, it is not important to decide whether they are eleemosynary or civil; for that court has no visitatorial power over a private eleemosynary corporation. Where there is a failure or want of a visitor, in such cases, in England, the crown becomes the visitor, and that power is exercised by the court of king’s bench, if not a charity, (Rex v. Gregory, 4 T. R. 240,1, n.) and if a charity, within the statute of charitable uses, (43 Eliz. ch. 4,) by a petition to the great seal, and not by bill or information; and then the lord chancellor acts in his visitatorial capacity. (Exparte Wrangham, 2 Ves.jr. 609. Att. Gen. v. Earl of Clarendon, 17 Id. 499. Same v. Dixie, 13 Id. 519 . Same v. Smart, 1 Ves. sen. 92. In re Bedford Charity, 2 Swanst. 524. Dawn ex parte, 9 Ves. 547. 3 Atk. 109. 1 Jac. 1. Hill on Trustees, 460.) His jurisdiction over charities, it is said, is a personal authority of the chancellor, and not within the ordinary powers of equity. (Corp. of Bedford v. Lenthall, 2 Atk. 553.) I am aware of the conflict of opinion in the English courts as to the extent of the jurisdiction of the king’s bench in cases of private eleemosynary foundations. (King v. Cath. Hall, 4 T. R. 233. Eden v. Footer, 2 P. Wms. 326. 12 Mod. 116. F. N. B. 42. King v. Bishop of Chester, 2 Str. 797. Rex v. Gregory, 4 T. R. 240,1, n. Green v. Rutherford, 1 Ves. sen. 471. King v. Bishop of Ely, 2 T. R. 339. Ex parte Wrangham, supra.) Visitatorial power, perhaps, is not now professional language, when speaking of the law courts; but the king’s bench has a superintendent authority where other jurisdictions are deficient. And at all events, the power where it exists on the other side of the courts, belongs to the great seal and not to chancery as a court of equity jurisdiction, except on the ground of trust.
But I am inclined to the opinion that these corporations are not eleemosynary, although occasionally so called. Eleemosynary corporations “ are constituted for the perpetual distribution *90 of the free alms or bounty of the founder of them, to such persons as he has directed ( 1 Bl. 471 ;) and are of two general descriptions; hospitals for the maintenance and relief of poor and impotent persons, and colleges for the promotion of learning, and the support of persons engaged in literary pursuits. Blackstone says, that the universities of Cambridge and Oxford are not eleemosynary corporations, “ though stipends are annexed to particular magistrates and professors, any more than other corporations where the acting officers have standing salaries, for these are rewards pro opere et labore, not charitable donations only, since every stipend is preceded by service and duty.” No writer upon elementary law, uses the term in a different sense than that given by Blackstone, which also accords with its etymology. (2 Kent, 274. 1 Wooddes. § 474. 1 Kyd on Corp. 25. Phillips v. Bury, 1 Ld. Ray. 5 ; S. C. 2 T. R. 346; S. C. Holt, 724. Webst. Dic. tit. Eleemosynary. Babb v. Reed, 5 Rawle, 151 .) Those institutions are considered of this kind, where the plan is one of bounty, charity, and benevolence to others; not those which are for the use of, and beneficial and make return to the donors. Even a school, unless it be a free school, does not come within the statute of charitable uses, 43 Eliz. (Att'y Gen. v. Hewer, 2 Vern. 387.) In this very case, the land was purchased and paid for by, and conveyed to the society for their own use, and the attorney general is not, a necessary party. Religious societies may be the means of dispensing the richest bounties, but the beneficiaries are, in a great measure, the founders themselves.
If, then, these corporations are not ecclesiastical, nor eleemosynary, they fall into the remaining class, private and civil. I think they possess the nature and qualifications of private, civil corporations, created mainly for the purpose of aiding in the promotion and enjoyment of religion, by managing the property of the church. Civil corporations are subject to no visitation, except in England by the king, who exercises this power in the king’s bench, which is his representative, by mandamus, or quo warranto; and here this power, in a degree, belongs to the government, and was exercised in our supreme court; which is *91 the representative, in our judicial system, of the king’s bench ; and in the same manner, if such power did formerly exist here at all, as the king’s bench superintends the civil corporations of the kingdom. ( 3 Bl. 42 . 2 Kyd on Corp. 174. 2 Kent, 304. Ordinance of 1704, establishing our Supreme Court. 2 R. L. App. 6.) Our statutes now give certain powers over corporations to the supreme court and the court of chancery ; but religious corporations are expressly excepted from their operation. (1 R. S. 603 § 5 ; 605, § 11. 2 R. S. 462, §§ 33, 35 ; 466, § 57.) So the law, as to these, remains as before. The king in England, and the legislature here, as founders in a certain sense of all civil corporations, are said to have visitatorial capacity; and they are visited and inspected, where no statute interposes, in the court of king’s bench according to the rules of common law, and not elsewhere or by other authority. ( 1 Bl. 481 . Att'y Gen. v. Utica Ins. Co. 2 John. Ch. Rep. 371. Auburn Academy v. Strong, Hopk. R. 278. 2 Kent, 300.) But whether ecclesiastical, eleemosynary or civil, our court of chancery has no jurisdiction as visitor over these religious corporations.
“ This court,” said Sir William Grant, master of the rolls, “ I apprehend, has no jurisdiction with regard either to the election or amotion of corporators of any description.” (Attorney Gen. v. Earl of Clarendon, 17 Ves. 499.) And Lord Eldon, in a case of gross abuse of a charity under the statute of 43 of Eliz. upon •an information, stopped the cause until a petition was presented to him in his visitatorial capacity, and then declared an election invalid. (Att’y Gen. v. Dixie, 13 Ves. 519.) The same view was taken by Lord Commissioner Eyre. “ If the governors,” said he, “ established for the regulation of it [a charity established by charter,] are not those who have the management of the revenues, this court has no jurisdiction: and if ever so much abused, as far as respects the jurisdiction of this court, it is without remedy; but if those established as governors have also the management of the revenues, this court does assume a jurisdiction of necessity, so far as they are to be considered trustees of the revenue.” (The Att’y Gen. v. Gov. of the Found. Hosp. 2 Ves. jun. 47.) Chancellor Kent, on a review of the cases, *92 came to the same conclusion. (The Att'y Gen. v. The Utica Ins. Co. 2 John. Ch. 371. And see 2 Kent, 303, 4; 2 Bac. Ab. 27; Dartmouth College v. Woodward, per Story, J. 4 Wheat. 518 ; Ang. & Ames on Corp. 407.) The power of amotion or disfranchisement of a member for reasonable cause, is incident to every corporation, (2 Kent, 299,) and, notwithstanding it was said in Bagg’s case, (11 Co. 99 a,) where Lord Coke puts it on the 29th chapter of magna chacta, melius liber homo capiatur, &c. giving it rather a literal reading, that this could be done only where the authority is given by the express words of the charter, or by prescription; or where the member has been convicted by course of law ; the power is now well established by a series of decisions. In The King v Richardson, (1 Burr. 517,) Lord Mansfield expressly recognized the power, and disregarded the dictum in Bagg’s case. (And see Rex v. Tidderly, 1 Sid. 14, cor. Ld. Holt; King v. Mayor of Lyme Regis, 1 Doug. 149 ; Comm. v. St. Pat. Benev. Society, 2 Binney, 448: Innes v. Wylie, 1 Carr, & Kirw. 257; Ang. & Ames on Carp. 33,404 to 415; 2 Bac. Abr. 21, 23.) In the case in Binney, Ch. J. Tilghman defines what is a reasonable cause for disfranchisement ; and in The Commonwealth v. Guardians of the Poor, it was held that mere misemployment of the corporate funds was not sufficient. (6 S. & R. 469.) There must be reasonable cause; and then the rule does not extend to the disfranchisement of a member, so as to deprive him of his stock by the" act of the corporators in a joint stock or moneyed corporation, unless there is express authority for that purpose; in which case, no doubt, the reasoning in Bagg’s case would apply. Though a removal of a corporator from office is a different thing. (2 Kent, 298.) No reference is here made to the statute, restricting the exercise of corporate powers, &c.; for religious corporations are excepted. (1 R. S. 600, § 3; 605, § 11.) Our statute now gives to the “chancellor,” among other things, power “ to suspend any trustee or officer” of a corporation “ from exercising his office w'henever it shall appear that he has abused his trustand “ to remove any such trustee or officer from his office, upon proof or conviction of gross misconduct; to direct *93 new elections to be held by the body or board duly authorized for that purpose, to supply vacancies created by such removal;” and if there be no such body, then to report that fact to the governor, who may fill the vacancies with the consent of the senate. (2 jR. S. 462, § 3.) And this jurisdiction “ shall be exercised as in ordinary cases on bill or petition, as the case may require or the chancellor direct, at the instance of the attorney general prosecuting in behalf of the people of this state, or at the instance of a creditor of such corporation, or at the instance of any director, trustee or other officer of such corporation having general superintendence of its concerns.” But the same article also declares that these provisions shall not extend to any religious corporation. (2 R. S. 466, § 57.) And the statute seems to imply that no such power existed at common law; and there is also an implied prohibition against, or denial of, any such jurisdiction over religious corporations, and consequently, they are left to the law applicable to corporations generally. “ Where a corporation is duly created, all other incidents are tacite annexed.” (Sutton’s Hospital case, 10 Co. 31.)
It follows, that chancery has no power to disfranchise a member, or remove one of the officers of a corporation, in this state, only so far as that power is given by statute. Disfranchisement, it is said, is properly predicable of a member and amotion of an officer of a corporation. (Ang. & Ames on Corp. 404.) But neither, in case of a private civil corporation, at common law, is within the power of that court.
But there is another important inquiry; where the incorporation is under the third section of the act, who are the corpora-tors 1 This is not without difficulty. Chancellor Walworth, in Lawyer v. Cipperly, says that the statute of 1784 recognized three distinct classes or bodies existing in a religious corporation; “ the church or spiritual body, consisting of the office-bearers and communicants; the congregation or electors, embracing all the stated hearers or attendants on divine worship who are competent to vote for trustees; and the trustees of the corporation.” ( 7 Paige, 285 . Sec 16 Mass. 503 ,4; 10 Pick. 193 ; 11 Id. 494 .) But the 11th section of that act is not found in the acts *94 of 1801 and 1813. That section declared that nothing in the act should be construed or adjudged to abridge or affect the rights of conscience or private judgment, or to change the religious constitution or government of the church, congregation or society, so far as respected or in any wise concerned the doctrine, discipline or worship thereof. This statute, and both of the others, were passed during the existence of the constitution of 1777, so that the change is not attributable to any alteration in the organic law. And the clause proclaiming religious freedom is retained in both of the subsequent revisions of the constitution. (Const, of 1777, art 38. Const, of 1821, art. 7, § 3. Const, of 1846, art. 1, & 3.) The 11th section of the act of 1784, was not therefore important to secure religious liberty; the constitution guaranteeing that in the broadest terms. If by the omission of that section the implication arises that the converse proposition obtains, taht is, that an incorporation under the act may change the religious constitution or government of the church, congregation or society, so far as respected or in any wise concerned the doctrine, discipline or worship thereof, the alteration may be important. But I notice this for the present, only in reference to the present inquiry, who are the corporators 1 The omission rather weakens the position that the law considers the church an integral part of the corporation. The chancellor adds in The Baptist Church in Hartford v. Witherell , that although a church or body of professing Christians is almost uniformly connected with such a society or congregation, the members of the church have no other or greater rights than any other members of the society, who statedly attend with them for the purposes of divine worship. ( 3 Paige, 301 .) If it be one of the integral parts of the corporation, and the church should become extinct, the corporatiozi would be dissolved. That was so settled in the well considered case of King v. Pasmore, (3 T. R. 199.) This would be so clearly, unless the corporators have power to restore the church. A neglect to elect trustees is provided for by the statute; and is, perhaps, more properly a suspension. (Phillips v. Wickham,, 1 Paige, 590 . And see Ang. if Ames on Corp. 464, 734, 5.) The language *95 of the third section is, that it shall be lawful for the “ male persons belonging to any other church, congregation or religious society,” to choose the trustees. The whole statute has reference to religious associations. A “ church” (ecclesia) may be—■ 1st. A temple or building consecrated to the honor of God and religion; or 2d. An assembly of persons united by the profession of the same Christian faith, met together for religious worship. (Jac. Law Dict. “ Church.” Toml. Die. “ Church.” 5 Petersd. Abr. 409. Town of Pawlet v. Clark, 9 Cranch, 292 .) These give the legal, though the word has various popular definitions. (Webster's Diet. “ Church.'') In our statute, I think it is used in the sense of the second definition above. “ Congregation” has perhaps no settled legal signification. The pleadings in this case state and admit, that in the Associate Church it is used to designate a local church; and it would seem that the word “ church” with them implies the church of that denomination in its aggregate capacity, the same as the term, “ Church of England,” which is not a corporation. (Town of Pawlet v. Clark, 9 Cranch, 292 , Story, J. Comm. v. Green, 4 Whart. 531 .) The word “ congregation” occurs frequently in the books made exhibits in this suit. (See the Ordination Yows, in the book containing the Narrative and the Declaration and Testimony, 174 et seq.; the Form of Church Government, “ Of Particular Congregations,” p. 572; Perdivan, b. 1, tit.l, and indeed throughout; 2 Gib’s Display, 76; and Church Government, art. 3.) “ Congregation” was an appellation given to the protestan ts in Scotland in 1559, from their union. (Robertson's History of Scotland, b. 2.) The term is used in the penal laws of England against disturbing public worship; particularly those to protect the worship of protestant dissenters. (1 W. & M. ch. 18.) But, as used in this statute, a congregation, I take it, is an assembly met, or a body of persons who usually meet in some stated place for the worship of God and religious instruction; and may or may not include a church or spiritual body. And the same may be said of the term “ religious society,” used in the same connection in the third section. The church, congregation or society must, to organize, have stated “ divine wor *96 shipfor the electors must have attended the same to constitute them such by the third and seventh sections. Whether religion and divine loorship in their broadest sense, or Christian sects only, are intended, it is not necessary now to inquire. The statute declares that the persons chosen trustees shall be a body corporate. Most of our statutes, in similar cases, use different expressions ; as in the acts for the incorporation of literary, manufacturing and medical societies, cities and villages, &c. And the 13th and 16th sections speak of the corporation being dissolved, (not suspended,) and authorizes the “ religious society which was connected therewith” to reincorporate. But the 9th section permits a religious corporation to reduce the number of trustees, and the congregation or society, I think, is there intended. The 11th section speaks of the “ society, to which the real estate so sold did belong;” and the act of 1826 declares that if there be an omission to elect trustees, the church, congregation or religious society shall not be deemed thereby to have been dissolved. Several ambiguous expressions of this nature are found in the statute. Upon the whole, I am inclined to think, all of the electors are corporators. They elect the trustees and from their own body, and these are the officers of the society. It is true, a right of election is often vested in others beside the corporators. This is almost invariably so with sole corporations. Churchwardens, who are a corporation for certain purposes, are elected by the parish, or by the minister and parish. But several opinions concur in the position, that the electors are corporators. Those of Chancellor Walworth in the Baptist Church v. Witherell , and Lawyer v. Cipperly, (supra,) have been stated. A. V. Ch. Sandford seems to have entertained the same opinion. (Cammeyer v. United German Lutheran Churches, 2 Sandf. Ch. 186.) And so I infer did Gardiner, president, in Miller v. Gable, in the court for the correction of errors, ( 2 Denio, 548 .) The persons entitled to vote are designated by the statute. At the first election, for the purpose of organizing, they must be male adults, belonging to the church, congregation or society, and must have statedly worshipped with the same, or have formerly been considered as belonging thereto. *97 And after the first election they must have been stated attendants on divine worship in said church, congregation or society, at least one year previous, and have contributed to the support of the church, congregation or society, according to its usages .and customs.
The statute, therefore, declares who are the corporators, and the court of chancery can not indirectly disfranchise a member by declaring that he does not possess the necessary qualifications. That power is expressly given to others by the act, and the law courts, in case of controversy, alone can review the matter, if that can be done by any tribunal.
If the foregoing views are correct, then those parts of the decree appealed from in this case, which removed some of the defendants as trustees or officers of the corporation, and which declare that the adherents of Dr. Bullions are not members of the corporation, and who are electors therein, and which provide for a new election of trustees, are erroneous; the court of chancery having no power of amotion of an officer of these corporations, or to disfranchise a member thereof, or interfere with or control the election of its officers.
But, although a court of chancery has no jurisdiction with regard to the election or amotion of corporators, it may, in some cases, where a corporation is a trustee, take from it the trust fund, if the trust be abused. Even the trustees of a literary or charitable institution in whom visitatorial power is vested by the incorporation, are not placed beyond the reach of the law. As managers of the revenue of the corporation they are subject to the general superintending power of the court of chancery, not as of itself possessing visitatorial power, or a right to control a charity, but as possessing a general jurisdiction in all cases of an abuse of trust, to redress grievances and suppress frauds. And where a corporation is a mere trustee of a charity, a court of equity will go yet farther, and though it can not appoint or remove a corporator, it will in case of gross fraud or abuse of trust, take away the trust from the corporation and vest it in other hands. (Story, J. in Dartmouth College v. Woodward, 4 Wheat. 528 . Mayor of Coventry v. Att'y Gen. *98 7 Bro. Pari. Ca. 235. Att’y Gen. v. Gov'rs of Foundling Hosp. 2 Ves.jr. 42. Ex parte Greenhouse, 1 Mad. R. 109. Ex parte Kirby Ravensworth Hospital, 15 Ves. 314. Att’y Gen. v. Earl of Clarendon, 17 Id. 499 . Greene v. Ruther forth, 1 Ves. sen. 468. Dummer v. The Corporation of Chip penham, 14 Fes. 252. Mayor of Colchester v. Lawton, 1 V. & B. 246. Verplank v. Mer. Ins. Co. 1 Edw. Ch. Rep. 84 . Att’y Gen. v. Utica Ins. Co. 2 John. Ch. Rep. 371, 389. Lewin on Trusts and Trustees, 393, 394. Att’y. Gen. v. Mayor of Newbury, 3 M. & K. 647. Angell and Ames on Corporations, 304, 407.)
Chancery had jurisdiction over trustees for certain purposes, it seems, even before the statute of uses, 27 Hen. 8 , c. 10; and at all events before the statute of charitable uses, 43 Eliz. c. 4. (1 Spence’s Eq. Jur. of Chan’y, 458, 466. 4 Viner’s Ab. 386. And see note to Vidall v. Girard’s Ex’rs, 2 How. U. S. Rep. 155. 2 Fonb. 207 and notes to the Am. ed. Angell & Ames on Corporations, 143.) Independent of its special jurisdiction by the statute of 43 Eliz., chancery, by virtue of its general jurisdiction over trusts, may enforce them when for charitable purposes, in many cases. (2 Story’s Eq. Jur. § 1187.) The favor formerly shown to donations for charitable uses, induced the court of chancery to disregard the statute of mortmain, and allow corporations to take lands for that purpose by devise. Lands held by a corporation ordinarily revert to the donor on its dissolution, but not so in case of a charity. (Att’y Gen. v. Lord Gower, 9 Mod. 226.) And the language of Lord Chancellor Ellesmere, that the goods in the hands of the administrators were all to charitable uses, and that the office of the ordinary and of the administrator is to employ them in pious uses, and that the kindred and children have no property or pre-eminence but under the title of charity, would not now readily receive our assent. (Damus’ case, Moor, 822-3.) This was said by him while he and Baron Altham were sitting as commissioners under the statute of Elizabeth.
But this statute of charitable uses has never been re-enacted in this state, and though many principles of equity growing out of *99 that statute, have been adopted here, the visitatorial power has not followed. And, indeed, in England, the interposition of the court, where the charity is founded upon charters, or by act of parliament, and a visitor, or governor, or trustees appointed, must be referred to the general jurisdiction of the court in all cases in which a trust conferred appears to have been abused; and not to an original right to direct the management of the charity, or the conduct of the governors or trustees. The king, as parens patrice, has a right to enforce all charities of a public nature. (2 Story's Eq. §§ 1154 a, 1190. See Dartmouth College v. Woodward, 4 Wheat. 676 . Att'y. Gen. v. Middleton, 2 Ves. sen. 327. 4 Wheat. 1 . 3 Pet. R. app. 498. Coop.Eq. Pl.27) and the cases before cited.) Of course the statute of 52 Geo. 3, ch. 101, in relation to charitable uses, has no force here. The statute of charitable uses provided for the appointment of commissioners by the chancellor, to inquire after and regulate charities, with right of appeal to the lord chancellor, with power to alter, diminish, annul, enlarge, &c. (See §10 of the Statute. 4 Vin. Ab. 476.) Money for the support of a dissenting minister, would no doubt be considered a charity under that statute. (1 Jarm. on Wills, 193, Perkins' ed- Att'y Gen. v. Newcomb, 14 Ves. 1. Att'y Gen. v. Fowler. 15 Id. 85. Powerscourt v. Powerscourt, 1 Molloy, 616. Shelford on Mort. and Char. Uses, 61. 1 Lill. Ab. 375. Att'y Gen. v. City of London, 1 Ves.jr. 243. Att'y Gen. v. Hickman, 2 Kel. 34.) But no such power is possessed by our court of chancery as is given by that statute. (Baptist Church v. Witherell, 3 Paige, 303 .) And, besides, if there would otherwise have been, our statute, being in the nature of a revision of the law upon the subject before us, would render that statute inapplicable. (3 Binney, 597. Converse v. Cooley, 10 Pick. 37 .) Indeed we now have statutes embracing almost the whole subject. One is “an act authorizing certain trusts,” passed May 14, 1840, (Laws of 1840, ch. 318,) with an amendment passed May 26, 1841, (Id. 1841, ch. 261,) and “an act for the incorporation of benevolent, charitable, scientific and missionary societies,” passed April 12, 1848, (Id. 1848, ch. 319,) *100 and an amendment thereto passed April 7, 1849, (Id. 1819, ch. 273.)
As we have seen, where the corporation is acting merely as a trustee, and grossly abuses the trust, it can be divested thereof. That was the case of Ex parte Greenhouse, (1 Madd. 92.) There the surviving trustee conveyed the trust property, a chapel, bells therein, and burying ground, (and other property,) to the bailiffs, burgesses, and commonalty of Ludlow; and the corporation pulled down the chapel, carried the bell to the market place, the pews to another church, repaired a bridge with the materials, and leased the site to one of the corporators for one-fourth of its value, and violated the burial place. The vice chancellor, Sir T. Plummer, very properly removed the corporation as trustee, remarking “ It is an enormous breach of trust, and such as could not be expected in a Christian country !” Here the corporation was a mere trustee, receiving the legal estate, (and improperly too, as stated by the court,) to fulfil the trust. If the corporation of Ludlow had owned the property in their own right without any trust, and had been the beneficial as well as the legal owners, equity would not. and could not have taken it from them. It is on the ground, of confidence that equity interferes. No corporator or officer of the corporation was removed in that case. A trust, in which as a corporation they had no interest, was taken from them. Probably now, in this state, they could not have acted as trustees at all. (In re Howe, 1 Paige, 214 . And see 4 Id. 423.)
In this case the corporation, together with four of the six trustees, and Dr. Bullions, claiming to be and officiating as minister, are made defendants. It is admitted that the legal estate is in the corporation. The officers of the corporation, as individuals, have no more beneficial interest than any other corporators. It was said in Verplank v. The Mer. Ins. Co. that the relation of cestui que trust and trustee does not exist between the corporation and stockholders of an incorporated company. ( 1 Edw. Ch. Rep. 47 , per McCoun, V. C.) But the vice chancellor farther added, that a relation was created between the stockholders and those directors, who in their char *101 acter of trustees, become accountable for any dereliction of duty or violation of the trust reposed in them. And he saw no objection to the exercise of an equity power over such persons, in the same manner as it would be exercised over any other trustees. Now a trustee is a “ person in whom some estate, interest or power, in or affecting property of any description is vested for the benefit of another.” (Hill on Trustees, 41.) In The People v. Runkle, the congregation are said to be the constituents of the trustees. ( 9 John. 156 .) In the case of the Dutch Church in Garden-street v. Mott , the chancellor speaks of the legislature having power to “ transfer the legal title from the naked trustees to the cestui que trust, after the latter were incorporated.” ( 7 Paige, 82 .) In Gable v. Miller , the chancellor decided that the property of the corporation was held in trust for the support of the worship of God by a church to be in a particular connection; and for teaching certain particular doctrines. ( 10 Paige, 649 .) Senator Porter, in the same cause, in delivering an opinion in the court for the correction of errors, in favor of sustaining the decree, considered those members of the church who had remained faithful to their allegiance to the government of the church, as “ the rightful members of the church, and the only cesUús que trust of the property held for the use of that church.” ( 2 Denio, 568 .) In Bowden v. McLeod, Vice Chancellor McCoun thought equity would exercise jurisdiction over the property of religious societies, as being trust property. In that case, by a special act, the minister, elders, and.deacons were constituted trustees for life. ( 1 Edw. Ch. Rep. 588 . And see 16 Mass. 495 , 505, 510.) By the fourth section of the statute under which religious societies are incorporated, the trustees, as we have seen, take possession of and hold all the estate, whether real or personal, and whether before held directly by the church, congregation or society, or by some other person to their use, and however acquired, or by whomsoever held; and they may purchase and demise, lease, and improve the same for the use of the church, congregation or society, or other pious uses. The section further authorizes them to repair and erect places *102 of worship, dwelling houses for ministers, and school houses and other buildings for the use of the congregation, church or society; and make rules and orders for managing the property. (3 R. S. 295, § 4, 247, 3d ed.) By the strict rules of punctuation, perhaps, the leasing and improving to the use of the church, &c. are confined to lands purchased by the corporation; but no doubt this clause was intended to include all the corporate property. The legal estate is clearly in the trustees, and they are. to manage the same, and regulate and order all matters relating to the temporal concerns and revenues of the church, congregation or society. It is said they hold the property in trust; and this is so stated in the pleadings. But I think not in the ordinary sense of that expression. They too, individually, are usually cestuis que trust, only holding the legal estate while in office, but in the management of it, and in every thing relating to their responsibility, they are upon the same footing with the officers of any incorporated company, and liable for fraud or negligence, or gross mismanagement. Mere trustees are liable for these, but in this case the trustees are, as to the management of the property, more properly officers or agents, and with a broader discretion in some respects than mere trustees. (Ang. & Ames on Corp. 306-7.) “ Trustees,” in the statute, is an official designation, not simply persons enjoying private confidence. Even trustees of the latter kind are not liable for a failure to discharge their duty from mistaking or misunderstanding it. (Att’y. Gen. v. Coopers’ Co. 19 Ves. 192. Same v. Caius Coll. 2 Keen. 150. Hill on Trustees, 191.) Churchwardens are not liable if they proceed fairly. (Loyd v. Poole, 3 Hagg. 477.) Trustees of a charity are not bound to look with more providence to the affairs of the charity than to their own. (Lord Eldon in Att’y. Gen. v. Dixie, 13 Ves. 519.)
In this case the first deed from French is to seven persons described as trustees of the Associate Church of Cambridge, adhering to the Associate Presbytery of Pennsylvania, habendum to the said party of the second part, and their successors forever, to the sole and only proper use, benefit and behoof of the said Associate *103 Congregation of Cambridge. Gilmore’s deed, (1799,) is also to seven persons “ trustees of the Associate Congregation of Cambridge aforesaid, and their successors in accession to the principles pre- ' sently maintained by the Associate Presbytery of Pennsylvania,” habendum to the said party of the second part, and their successors, for the proper use, benefit and behoof of the said Associate Congregation of Cambridge forever.” The deed from Dr. Bullions, one of the defendants, (in 1827, one year after the incorporation,) is to six persons, “ trustees of the Associate Congregation of Cambridge, of the county of Washington, and state of New-York, adhering to the principles of the Associate Presbytery of Pennsylvania formerly, now the Associate Synod of North America, of which the Rev. Alexander Bullions is minister“habendum to the said parties of the second part, and their successors in office forever.” The deed from Stevenson is to five persons, “ trustees of the Associate Congregation of Cambridge, in the county of Washington, and state of New-York, and their successors in office, adhering to the principles of the Associate Presbytery of Pennsylvania formerly, now formed into the Associate Synod of North America, of which the Rev. Dr. Bullions is now minister,” “ habendum to the "said parties of the second part, their successors in office, heirs and assigns, to their sole and only proper use, benefit and behoof forever in trust.” As we have seen, these lands belong to the corporation. And I have come to the conclusion that the description of the grantees, as being trustees of a church in connection with the Associate Presbytery of Pennsylvania, and afterwards with the Associate Synod of North America, or as having Dr. Bullions for a minister, does not amount to a condition or limitation of the estate conveyed. No doubt the grantor to a religious corporation may make a particular connection a condition of the grant. And the corporate or denominational name may indicate the nature of the trust, as to doctrines esteemed fundamental. (Gardiner, president, in Miller v. Gable, 2 Denio, 548 .) But in this case, these clauses in the conveyances are merely descriptive of the grantees, and designating the denomination of the church, and admitting it has *104 connection with such a presbytery or synod at that time. But no condition or limitation in that respect attaches to the estate. This position I think is sustained by the authorities which I shall notice hereafter.
This brings us to the great question in this cause: are the defendants or any of them, violating the trust reposed in them, or their duty, by adhering to and supporting Dr. Bullions? For if that is so, although a court of chancery can not remove them and can not divest them of this property, it can compel them to do their duty in relation to it.
Upon this subject the cases are not very satisfactory. The church establishment of England, from which country we derive the great body of our laws, occupies a large space there ; and has not and never can have any representative here. Sustained by the strong arm of power from the first Christianization of the island, its influence has been constantly felt, not only in ecclesiastical matters, but in those of a secular nature. For a long period, the chancellors of the kingdom were ecclesiastics, such only, being considered fit keepers of the king’s conscience. These, first exercised jurisdiction over trusts. The most rigid rules for the observance of faith, practice, doctrines and government of the church were enforced. “ The toleration of héresy,” says Sir. J. Mackintosh, “ was deemed by men of all persuasions, to be as unreasonable, as it would now be thought to propose the impunity of murder.” (History of England, ch. 13.) Nor did this end at the reformation. The great Lord Coke was fierce against witches; ( 3 Inst. 45;) and he was overruled by the chief justice, chief baron and two of the judges, who as late as 1611, certified to the king that a heretic could be burnt on conviction before the ordinary. (12 Co. 93, and see Or abb’s History of English Law, 500.) Indeed, it is questionable whether the same punishment could not be inflicted for a denial of predestination. (1 Hal. Const Hist. 139, n.) Sir Thomas More personally assisted at the punishment of heretics; and the immortal Bacon, as attorney general, was present, if he did not superintend the torture by the rack, of an old clergyman, Even the Bohemians admitted in general, that corruptora of re *105 ligion, and heretics ought to be subjected to capital punishments. (2 Murdock's Mosheim, 459,2d Am. ed.) And it seems, until the present century, excommunication disfranchised the subject; preventing him from serving on a jury, being a witness, or bringing a suit, and subjecting him to imprisonment. ( 3 Bl. 102 .) And even now, by 53 Geo. 3, ch. 127, he is liable to imprisonment. For some acts, he was ipso facto excommunicated. (Dyer, 275.) Cut off from grace by statute! True, if the ecclesiastical court proceeded without authority, chancery might cause him to be absolved. (16 Ves. 346. 12 Co. 65.) “ If a man be excommunicated, a prohibition shall assoil him.” (Holt, C. J. 12 Mod. 311.) And this too, when as early as the 12th century, by the Constitutions of Clarendon, the clergy were made amenable to the common law courts ; and it is laid down as law, that the ecclesiastical judge should only “correct the sin.” (4 Inst. 492. 2 Bac. Ab. 171.) One of the causes of the bitter persecutions of the Hussites, was their demand that the clergy should have no temporal jurisdiction. (1 Rapin's Hist, of Eng. b. 14, “ State of the church.") And even in this country, the same intolerant spirit prevailed, to some extent. The unfortunate persecutions in the colony of Massachusetts are familiar to the reader of American history; and in Virginia so late as 1745, governor Gooch is said to have closed his charge-to the grand jury of the general court, in relation to the Presbyterians, in this strong language : “In short, we should deviate from the pious path we profess to tread in, and should be unjust to God, to our king, to our country, to ourselves, and to our posterity, not to take cognizance of so great wickedness, whereby the grace of our Lord Jesus Christ is turned into lasciviousness.” But different views began to prevail. Indeed, from the beginning, there were some bright examples of religious toleration in the colonies. And Christian statesmen and philanthropists began to take a broader view of the rights of conscience. “ Freedom of thought,” said Ld. Auckland, about eighty years since, in his chapter “ of crimes relative to religion,” is the prerogative of the human mind.” (Eden's Penal Lato, 91.) It began to be felt, that all union of church and state was danger *106 ous, both to civil and religious liberty. That “ every impediment to the utmost liberty of inquiry or discussion, whether it consist in the fear of punishment, in bodily restraint, in dread of the mischievous effects of new truths, or in the submission of reason to beings of like frailties with ourselves, always, in proportion to its magnitude, robs a man of some share of his rational and moral nature.” (Mackintosh’s Hist, of Eng. ch. 9.) The Mosaic law, with all its penalties, even under a theocratic government, made no progress-in the world ; while the Christian system, if left to its own influences, love, truth and kindness, and in its apostolic simplicity, it was seen, would inevitably eradicate error and soften and reclaim the rugged and sinful nature of man. It was found that the “ insanity of fanaticism subsides of itself unless heightened by persecution;” that “ consciences are not to be forced, but to be won and reduced by force of truth, with the aid of time, and use of all good means of instruction and persuasion.” “ That,” in the language of one of the exhibits in this case, “ God alone is the Lord of the conscience, and hath left it free from the doctrine and commandments of men.” (Dec. and Testimony, part 1,17.) Those to whom was intrusted the establishment of our free governments in this new world, knew the calamitous effects of the struggle between the sceptre and the crosier in the old ; and resolved that there should be perfect liberty of conscience here. In this spirit our constitutions were framed and our laws enacted, and heresy became unknown to our criminal code. In Virginia, forty years after Gov. Gooch’s charge, their act “for establishing religious freedom” was passed, drawn by Mr. Jefferson, and said by him to he sufficient “ to comprehend within the mantle of its protection the Jew and Gentile, the Christian and Mohammedan, the Hindoo and infidel of every denomination.” (1 Jeff. Works, 36,7.) Our first constitution in this state, in the darkest hour of the revolutionary struggle, ordained, determined and delared, “ that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed within this state to all mankind.” (Const, of 1777, art. 38.) Twice since that period have the people repeated this *107 declaration. (Const, of 1821, art. 7, § 3. Const, of 1846, art. 1, § 3.) To this there is no limitation, except that it will not excuse acts of licentiousness or justify practices inconsistent with the safety of the state. This was the organic law when our first act for the incorporation of religious societies was passed, and when this church was organized. It follows, that there is no power in the state, legislative, executive or judicial, that can interfere with this complete religious liberty. We therefore enter upon the subject with laws, the spirit and genius of which are, in many respects, unlike those of the parent country. There, the position of the church was secured by the very first chapter of the magna chart a. As said by Lord Coke in Cmodrids case, it was the civil power of the kingdom that gave ecclesiastical discipline its life. And the canon law was recognized and sustained by the statute of 25 Hen. 8 . (See Cawdrie’s case, 5 Co. Rep. 1.) And beside this, the statute in relation to charitable uses, by a broad construction embraces almost every thing of a religious nature not within the control of the established church. (Hill on Trustees, 452.) While here all our courts can do, as it appears, must be referred to the rights of property. Some English decisions, but with much hesitation, interfere upon this ground. One of the earliest was before Lord Keeper North, in 1684. A clergyman of the Church of England gave £600 to the pious Baxter, to be distributed by him to sixty pious ejected ministers, not because of their nonconformity, but because he knew them to be pious and good men, and in great want; and also £20 to Mr. Baxter, and £20 more to be laid out in his book entitled “ Baxter’s Call to the Unconverted.” One ground urged against the bequest was, that it would certainly encourage and keep up a perpetual schism in the church, which the law would not endure. And his majesty having declared his pleasure that it. should be applied to the building of Chelsea College, the court adjudged the charity void, and so decreed. (Att'y General v. Baxter, 1 Vern. 248.) But this decision was reversed in the house of lords, the year after the revolution. Lord Eldon professes to give the reasons of the reversal in Moggridge v. Thackwell, (7 Ves. 76.) I suspect, however, the reversal is better attributable *108 to the move liberal views known to have obtained after that greht event. One of the most important eases in which equity has interfered, is that of the Atl'y General v. Pearson, (3 Meriv. 353.) There the property, as early as 1701, was conveyed in trust for the luorship and service of God. And if meetings for that purpose should be prohibited by law, then to sell and lay out the avails in certain charitable uses. And in case any trustee should misbehave himself in the management, of the trust, or do any thing scandalous or offensive to the rest, they should have power to.remove him, and a majority of the trustees were authorized to fill vacancies. A school house, vestry and meeting house were built on the premises by voluntary contributions. The legal title had been transmitted to successive trustees. In 1720 another piece of land was deeded in trust for the support of a minister, and in that conveyance it was provided that if any of the trustees should die, or desert the congregation, or becom of any other religion or persuasion whatever, contrary or different from the then congregation, the trustees were to fill his place. The founders were Presbyterians, but for some years before the end of the last century, the trustees, ministers, and a majority of the congregation had ceased to be Trinitarians. A bill was filed and the case was partially decided in 1817. It came up on a motion to stay proceedings in ejectment. The chancellor referred it to a master to inquire in whom was the legal estate, and what were the nature and particular object, with respect to worship and doctrine for the observance, teaching and support of which each of the funds was created, and what was the usage as to election of the minister among the Protestant dissenters ; and in 1822 a similar decree for an account was ordered, but neither was drawn up. The court held, that a fund raised for the support of Trinitarian, could not be diverted to that of Unitarian doctrines. In 1835' another bill was filed, and Sir L¡ Shadwell, then vice chancellor, also decided that the property ought not to be applied to the support or teaching of the doctrines of any sect of Protestant dissenters who deny the doctrine of the Holy Trinity or profess opinions as to the Christian religion, which, at the time of the erection- of the meeting house, could *109 not be legally taught or preached therein. He also removed the trustees, because they maintained opinions which, according to the view of the court, ought not to be preached in the chapel, “for there is a manifest incongruity in having persons of one strong religious belief, administering a trust created in favor of persons of another religious belief,” and also directed others, who did profess those doctrines and opinions, to be appointed. (Attorney Gen. v. Pearson, 7 Sun. 290.)
Another leading case in England was one arising out of the charities founded by Lady Hewley. It was decided by the'same vice chancellor, in 1833, was argued on an appeal before Lord Brougham, assisted by Justice Lit tied ale and Mr. Baron Parke in 1834, but not decided; and re-argued before Lord Lyndhurst, assisted by Mr. Baron Alderson and Mr. Justice Patterson, in 1835, and decided in 1836. (Attorney Gen. v. Shore, 7 Sim. 309, n.) And was argued on appeal in the house of lords in 1839, and affirmed there in 1842. (Shore v. Wilson, 9 Clark & Finnelly's P. R. 355.) Lady Hewley was a Presbyterian, and conveyed lands to trustees by two deeds, one given in 1704 and the other in 1707, for the purpose of assisting poor and godly preachers of Christ’s holy gospel, and the widows of such, and to assist in the education of young persons designed for the ministry of Christ’s holy gospel; and for encouraging and promoting the preaching of Christ’s holy gospel in such poo.r places as the trustees should think fit, and for the relief of poor and godly persons in distress. In case of the death of a trustee, his place could be filled by the survivors. The first deed reserved the power to revoke the trusts and declare new trusts. The second deed was for the same objects, and also established a hospital or habitation for poor people, to be subject to certain rules, one of which was, that none of evil report be admitted, but such as were poor and piously disposed and of the protestant religion; another was, “ Let every almsbody be one that can repeat by heart the Lord’s prayer, the creed and ten commandments, and Mr. Edward Bowles’ catechism.” The attorney general said a Unitarian could repeat Bowles’ catechism. The Bishop of London said: “ An Alian may, but not a Unitarian.” The effect *110 of the vice chancellor’s decree was to exclude Unitarians from participating in the benefit and administration of the charity ; and he removed the trustees because they were of that religious belief. And Lord Lyndhurst, in affirming the judgment, said, “ These circumstances, with others, lead me therefore to the conclusion, not merely that these parties have misapplied the funds, but that, in the exercise of their trust, they have manifested a strong and undue leaning in favor of persons of their own persuasion. I think then, looking at these circumstances and considering the extensive and continued misapplication of the funds which has taken place, and adverting also to the consideration of the danger of future abuse, if persons maintaining one particular class of opinions are to be intrusted with the management and entire control of funds which are to be applied for the benefit of persons maintaining other opinions, that I am bound to come to the conclusion that the vice chancellor was correct in removing the trustees.” The house of lords, after hearing the seven judges, affirmed the decree; Lord Cottenham and Lord Brougham, only, making brief remarks, and they refused, on the recommendation of those two lords, to declare “ what description of persons are hereafter to be considered proper objects of the charity.” Lord Cottenham remarking, it might promote and not prevent litigation, and that it was impossible, a priori, to foresee the consequences of any such declaration. These may be considered the two leading cases in England, but several others have been there adjudged.
Craigdallie v. Aikman was decided in the house of lords in 1813. (1 Dow’s P. C. 1.) Certain persons, as early as 1733, and who adopted the principles of the secession from the Church of Scotland, which took place in 1737, and adhered and submitted to a secession judicatory, had provided a chapel for worship. There was no special contract of adherence, but the judicatory had continued to regulate and direct the use of the chapel until 1795. In 1795 a difference of opinion arose, and a majority of the congregation, as well as the synod, adopted the new views, though a majority of the money contributors to the chapel adhered to the old, and declined the authority of the judicatory. The question was to *111 which party the chapel belonged. The court of session in Scotland decided in favor of those adhering to the judicatory, but the house of lords, not being satisfied with this decision, sent the case back for review. Lord Eldon thought the court could not take notice of religious opinions with a view to decide whether they were right or wrong; but they might notice them as facts, with a view to decide upon the ownership of property. He added: “ If it were distinctly intended that the synod should direct the use of the property, that ought to have been matter of contract, and then the court might act upon it, but there must be evidence of such a contract, and here he could find none.”
Galbraith v. Smith was decided by the court of session in Scotland, in 1837. (15 Cases in Court of Session, 819.) The church judicatories of a dissenting body, having pronounced a sentence declaring a minister of their body out of connection, joint possession was awarded to the claimants until a decision should be made. A secession church had joined a certain presbytery, but a minister they had called being deposed, and the decision of the presbytery affirmed on appeal, the struggle was for possession of the chapel. Lord Meadowbank said, “ I take it to be clearly and finally settled that a trust may be legally established, and a civil right created, for behoof of a body of dissenting Christians professing certain tenets, and agreeing to have their civil rights fixed by and dependent upon the observance of such rules and regulations as are inherent in, and calculated to maintain tire principles they support.” And “ that it is a legal object of such a trust, that it may profess to be constituted with a view to perpetuity even, by placing in the hands of a recognized body the right and power of controlling and modifying these rules and regulations in conformity with the fundamental principles of that sect of dissenting Christians to which those constituting the trust may have professed to adhere, and that a civil court will not take cognizance of the proceedings and determinations of those ecclesiastical judicatories, as they may be termed, upon matters of doctrine and discipline, but hold them to the probatio probata of the principles of the sect.” He further stated that the deed need not declare all the *112 conditions of trust, but these could be ascertained by facts and circumstances. And he concludes, “ that in order to confer upon a party the right of enforcing the objects of the trust, it is only essential that he should possess a persona standi in ju,dido, and qualify an interest to have it enforced. But it is not required— and that is the point, which, though now settled, was originally doubted—that in those cases, where the parties contributing their money and their means to the constitution of such a trust, and forming a congregation of dissenting Christians, shall have differed in opinion, and both claimed possession of the trust estate, the success of either will depend, not upon the greater amount which each shall have contributed in the creation of the subject, or in their numerical superiority, but in their adherence to the original principles which it was their professed object to maintain in the constitution of the trust.” These principles he considered settled by the cases of Aikman v. Craigdallie, and of Auchincloss, decided in 1792.
In Porter v. Clarke, (2 Simons, 520,) the conveyance was to trustees “ to permit and suffer the said messuage tenement and meeting house building and premises, to be used as and for a place for the worship of Almighty God by the congregation of protestants dissenting from the Church of ."England, under the denomination of particular baptists, holding the doctrines of personal election, imputation of original sin, effectual calling, free justification, and final perseverance of the saints, and by the members and successors of the same congregation of protestants holding the same doctrines.” There was no endowment for the minister, nor any trust property except the chapel and premises, and the minister was supported solely by voluntary contributions of those attending the chapel. The plaintiff had been minister for thirty-seven years, and had been dismissed. The court thought there was no cause for interference.
Milligan v. Mitchell came before Lord Chancellor Brougham in 1833, and before Lord Chancellor Cottenham in 1837. (1 Myl. & Keen, 446. 3 Myl. & Craig, 72.) And also came up on questions of practice at other times. (1 Id. 433, 511.) About 1798 the Scotch Presbyterian Chapel at Woolwich, being *113 in a dilapidated state and too small, contributions among those belonging to the Scotch Church and under the authority of the London Presbytery, were made, with which a new site was obtained and a chapel erected. A lease of the new chapel was given, “upon trust, nevertheless, to be assigned and disposed of as the said elders and trustees or the elders and trustees of the Scotch Church at Woolwich for the time being, should appoint; and until such appointment should be made, upon trust to permit and suffer the same to be used as a place of religious worship, and for such other purposes as by the custom of the Church of Scotland the same ought to be used.” And the trustees were “ not to permit the same to be had or used for any other purpose than religious worship, and for such other meetings and assemblies as by the custom of the Kirk of Scotland, ought to be there holden,” without the consent of the lessors, &c. What was called the Drake donation, was for the benefit of the minister of the Presbyterian Chapel at Woolwich. The chapel was opened for divine service in 1800, and in 1803 the kirk session of the congregation made certain laws and regulations, among which was one that no minister should receive a call or be appointed pastor unless licensed to preach the gospel according to the regulations observed in the established Church of Scotland. These laws and regulations were attempted to be repealed'in 1833 by the congregation. In 1829 a clergyman was elected and an application was made to the Scotch Presbytery of London to moderate this call, but upon his examination, it was found his tenets were not in conformity with the doctrines of the Church of Scotland, and he declined to sign the confession of faith of that church, and the Presbytery of Paisley, of which he was a licentiate, recalled his license. From this act of the Presbytery of Paisley he appealed to the general assembly of the Church of Scotland, where the sentence was affirmed, and all ministers were prohibited from employing him in their pulpits. When he was first rejected by the Presbytery of London, he withdrew and resigned his claim as pastor of the church, but was again re-elected and preached for a time, and then finally withdrew and the situation was vacant. The prayer of the bill was, that *114 the premises might be decreed to be held upon trust for religious worship according to the doctrine and discipline of the national Church of Scotland, and that no person was eligible to the pastoral charge of it who was not a licentiate of that church, and that the elders and trustees be decreed to perform the trust and proceed to the election of a pastor duly qualified and authorized to be their minister according to the usages and regulations of the Church of Scotland. Lord Brougham granted an injunction to prevent the election of a person not regularly licensed by the Church of Scotland. But would not order that such, and such only as were licensed, be allowed to preach. But after the hearing Lord Cottenham thought the plaintiffs entitled to the decree asked for. He gave the plaintiffs their costs out of the fund, as a large majority were with the defendants, but did not give costs to the latter.
Leslie v. Birnie turned upon the question whether the seat-holders had a right to vote for a minister. (2 Russ. 114.) The chapel had been all along used by a congregation professing the faith, discipline, &c. of the established Church of Scotland, so far as applicable to a church out of Scotland; and had been in connection with the presbytery of the Scotch church in London. The chancellor said the trust was for the congregation, which might mean all that met together at the chapel, or in a more limited sense the members only. That the trust might be well executed if the minister was chosen according to the customs and laws of the Church of Scotland.
Davis v. Jenkins was also a struggle for the possession of the trust property. The surviving trustee assumed to control it, and the court ordered a reference to a master to inquire into the nature of the establishment and who should elect a minister. It was decided in 1814. (3 Ves. & B. 151.)
Foley v. Wonter was decided in 1820. (2 Jac. & Walk. 245.) A new site was purchased on which a new house had been erected, and the deed gave the power of appointing the trustees to the surviving trustees, instead of the congregation at large, as in the first deed. Disputes arose and the parties resorted to equity. Lord Eldon said he had several tiipes been called upon *115 to execute trusts with respect to these dissenting meeting houses, held under trust deeds, but what the court could do in such cases was very little. That one of the most difficult questions in these cases is, what is to be the course when the doctrines which it was originally matter of agreement should be inculcated, are not adhered to by the congregation, some of them having changed their religious opinions ; but he adds: “ I take it to be now settled by a case in the house of lords on appeal from Scotland, that the chapel must remain devoted to the doctrines originally agreed on.”
Attorney Gen. v. Drummond was decided in 1842, (1 Conner & Lawson, 210,) and was a struggle before Lord Chancellor Sugden, in the Irish court of chancery, by the Unitarians, to share a fund raised in 1710, to support the Protestant dissenting interests. One question was upon the kinds of evidence admissible to ascertain the trust. As to that, perhaps it may be considered settled, certainly in England, that, to a degree, extrinsic evidence is admissible, but not parol declarations of the trust. And it was also decided that the fund was not applicable to the support of Unitarian doctrines.
Several cases in our sister states have more or less raised some of the questions arising in this cause, a few of which I will notice.
The Presbyterian Church v. Johnston, ( 1 Watts & Serg. 1 ,) was decided in 1841. The grant was to trustees “ as a site for a house of religious worship, and a burial place for the use of the said religious society of the English Presbyterians and their successors in and near said town of York.” The church had been connected with the Carlisle Presbytery at least 20 years before the deed, and at that date, and until 1838, in all about 73 years. They then renounced all obedience and subjection to any church judicatory, and so continued for a time, and then formed a connection with the Presbytery of Harrisburgh, of the new school. They became incorporated after the deed was given. One of the judges, in his dissenting opinion, insisted that a church could not be presbyterian without being connected with some presbytery, and denied that the new school was presbyterian. But the majority decided, that a connection with the *116 Presbytery of Carlisle was not a condition of the grant. Chief Justice Gibson said, that subjection to a particular church judicatory may be made a fundamental condition of a grant; and he mentioned the case of Duncan v. The Ninth Presbyterian Church, where the grant was “ for such congregation of persons as shall belong to the present Reformed Synod to which the Rev. Robert Armand’s church in Spruce-street belongs.” But that in that case the court was divided and the suit was settled.
The trust in the case of Chambers v. Baptist Education Society, was for the education of such Baptist preachers and candidates as adhered to the articles of General Union of Baptists in Kentucky, and the court thought the trustees had a sound discretion as to the manner of executing the trust. (Monroe's Eq. 216.)
Deun v. Bolton, decided in 1831, is often cited. (7 Halst. 206.) The land was Conveyed to the “ministers, elders and deacons of the Dutch Reformed Church in the English neighborhood.” The church had been connected with the classis of. Bergen and the General Synod, and a portion of them withdrew and formed a connection with the True Reformed Dutch Church, and it was held that the plaintiffs, who had been chosen according to the old form and regulations, and remained, were entitled to the property. This church was incorporated under the statute of New Jersey, entitled “ An act to incorporate trustees of religious societies,” passed June 12, 1799. (1 R. L. 475.) The 12th section of that act declares that the minister, elders and deacons, or if no minister, the elders and deacons of Reformed Dutch Churches, “shall be trustees of the same and a body politic and corporate in law.”
In the case of St. Mary’s Church, ( 7 Serg. & Rawle, 539 ,) it appeared the ground on which the chapel stood was held in trust for a Roman Catholic congregation, and afterwards a charter was granted to a religious society of Roman Catholics; and the chief justice remarked : “Now if a majority of this congregation should insist upon employing pastors contrary t.o the rules of the" church, and the minority should choose to remain strict Roman Catholics in the sense of the word at the time of their incorporation, what is to become of the chapel and the *117 ground 1 That is a momentous question, on which I have not formed any opinion.”
The cases in Massachusetts and Connecticut give but little light on the subject, owing to the peculiarity of the semi-established systems under which they arose. In Massachusetts it was decided that a congregational church was not a corporation, nor qua corporation, for the purpose of holding property ; and a minority of the church remaining with the parish, was recognized as the church connected with the parish. (Baker v. Fales, 16 Mass. 488 . Stebbins v. Jennings, 10 Pick. 172 . Page v. Croly, 24 Id. 211.) And to depose a clergyman, there should be an essential change of doctrine, or wilful neglect of duty, or immoral or criminal conduct. (Avery v. Tyringham, 3 Mass. 160 . Burr v. Sandwich, 9 Id. 277 . And see 16 Pick. 274 ; 24 Id. 281; 5 Conn. R. 495.) In the case of Landon v. Plymouth Cong. Society, (12 Conn. R. 113,) a sum of money was raised for the support of the gospel ministry in the society, and the management of it given to the corporation. The corporation undertook to destroy the fund by returning it to the donors and their representatives. The court interposed, on the application of the minority. Ch. J. Williams, in delivering the opinion of the court, said, that were the corporation the donees and their powers unlimited, they would have greater rights over it; but, as trustees, they could not destroy it. That it was well settled, that without the consent of the cestuis que trust, or the aid of the court of chancery, trustees can not change the relation at pleasure, and denude themselves of the trust; and cited Ally General v. Christ’s Hospital, (3 Bro. C. R. 165 ;) Chalmers v. Bradley, (1 Jac. & Walker, 68;) Shepherd v. Mclvers, (4 John. Ch. 136.) The principal case, it will be observed, was one of express trust; and even had the property belonged to the corporation, the majority could not destroy the corporate fund, at least without the consent of all the corporators.
The cases in our own state are not more satisfactory. In the People v. Runkel, the supreme court held that the trustees of a religious corporation under our statute were entitled to the possession and custody of the temporalities of the church, and law *118 fully seised of the estate real and personal. And if the trustees, closed the doors of the church against the minister and congregation, and they broke in by force, they could be indicted for the forcible entry. The court say, that although the property was held in trust for the church or congregation, yet it was in their possession, and the courts would protect them against any irregular and unlawful intrusion against their will, whether by the congregation or by strangers. ( 9 John. 147 .)
Diefendorf v. Reformed Calvinistic Church, decided in the supreme court, was an action for a subscription “ for the support of the ministry of the said church as long as the Rev. John I. Wack is and remains our regular preacher.” Wack had been deposed for immoral conduct, by the classis, and, on appeal to the synod, that sentence was reversed. The court held the relation of minister and congregation was not dissolved; and Platt, J. who delivered the opinion of the court, said the decision of the synod was conclusive. ( 20 John. 12 .)
The Dutch Church of Albany v. Bradford, in the court for the correction of errors, was put on similar ground. There the defendant in error had received a call referring to the rules of church government established in the national synod held at Dordrecht, (1618-19,) and the articles explanatory of the government and discipline of the Reformed Dutch Church in the United States of America, which he had accepted ; but was afterwards suspended by the classis for inebriety. He appealed to the synod, but his appeal was not sustained; and finally his pastoral connection with the church was dissolved by the classis. The question was whether he was entitled to his salary after the suspension ; the effect of the decisions of the church judicatories in other respects, seems to have been admitted on both sides. (8 Cowen, 457.)
Field v. Field. ( 9 Wend. 394 ,) was also at law. The action was on a sealed note payable to the plaintiff, “ treasurer to the purchase-meeting-school-fund or his successor.” The dispute grew out of the division of the Friends into Orthodox and Hicksites. The court decided that the person appointed in “ the old mode” was the treasurer. And Nelson, J. remarked that a court *119 of law could only look to the legal rights of the parties to control the fund in question, and they must depend upon the constitution and principles of the association and their modes of proceeding : and that equity would interfere if there were a diversion of the fund from its original purpose ; and he cited The Attorney General v. Pearson, (supra.) The real question in this case was as to the appointment of officers, who, it was decided. must be appointed in the mode in use in that society. The society was not incorporated.
The Baptist Church of Hartford v. Witherell was the first cause that came before Chancellor Walworth involving these questions. ( 3 Paige, 296 .) It was amotion for an injunction, and most of the facts appeared by the bill, and were not controverted. A deed of the land was given to the “elder or minister, deacons, wardens, and their successors in office, of the First Baptist Church in Hartford,” in 1813; and a church erected upon the premises soon after. The society remained unincorporated until 1831. The adherents of the defendant Witherell, who were in- the majority, were incorporated in September, 1831, and the minority, represented by the complainants, claiming to be the corporation, endeavored to be incorporated about two months after. The defendants were charged with unchristian conduct. The Washington County Baptist Association, which, as was alledged and not denied, was the regular tribunal, constituted by all the Baptist churches in Washington county, to take cognizance of and decide all ecclesiastical questions of that and the like nature, and whose decision was final unless appealed from, had decided that the minority constituted the regular church. The defendants, after this decision, wholly withdrew from the fellowship of this association, and had put the complainants out of possession, although those represented by the latter owned two-thirds of the pews. The chancellor decided that the trustees appointed by the defendants had a right to the possession of the property, and he remarked that “ the complainants appear to have acted on the supposition that the decision - of the ecclesiastical judicatory, that a certain portion of the members of the Baptist church in Hartford were heterodox in doctrine *120 or practice and were not the true church, must have a legal effect upon the incorporation of the members of this religious society. But I apprehend that in this they have overlooked the distinction between the congregation and the church, strictly so called, which comprises only a part of the congregation or society. The church consists of an indefinite number of persons of one or both sexes, who have made a public profession of religion, and who are associated together by a covenant of church fellowship for the purpose of celebrating the sacrament and watching over the spiritual welfare of each other. But a religious society or congregation, as recognized by the 3d section of the statute providing for the incorporation of religious societies, is, with us, what is usually denominated a poll parish in some of the neighboring states. It consists of a voluntary association of individuals and families, united for the purpose of having a common place of worship, and to provide a proper teacher to instruct them in religious doctrines and duties, and to administer the ordinances of baptism, &c. Although a church or body of professing Christians is almost uniformly connected with such a society or congregation, the members of the church have no other or greater rights than any other members of the society who statedly attend with them for the purposes of divine worship. Over the church as such, the legal or temporal tribunals of this state do not profess to have any jurisdiction whatever, except so far as is necessary to protect the civil rights of others, and to preserve the public péace,. All questions relating to the faith and practice of the church and its members, belong to the church judicatories to which they have voluntarily subjected themselves. But as a general principle, those ecclesiastical j udicatories can not interfere with the temporal concerns of the congregation or society with which the church or the members thereof are connected,” That the council or association could not remove a minister without the consent of a majority of the congregation, or if incorporated, of the trustees. That he was inclined to think the trustees could be called to account for a misapplication of the funds, “but it must be a most plain and palpable abuse of power, which will induce this court to interfere as to any dispute grow *121 ing out of religious or sectarian controversies.” Of the case of The Ally Gen. v. Pearson, he remarks, that “ it must be recollected that the chancellor was there administering the equity of the statute, (43 Eliz. c. 4,) relative to charitable uses, which statute is not in force here.” That if the original founders believed the sabbath divine, and the defendants taught a different doctrine, he presumed Lord Eldon would consider this case such a departure from the original trust as would justify his interference, but that be was not “ prepared to say that it would be right or expedient to adopt the principle of Lord Eldon here, where all religions are not only tolerated, but. are entitled to equal protection, by the principles of the constitution. Upon Lord Eldon’s principle, a society of infidels who had erected a temple to the Goddess of Reason, could not, upon the conversion of nine-tenths of the society to Christianity, be permitted to hear the word of life in that place where infidelity and error had once been taught. And upon the same principle, the newly created equity jurisdiction in a neighboring state, might find itself constrained to order some of the parishes within its limits to employ religious teachers who should inculcate the doctrine of witchcraft as it was taught in their churches at the time of their first organization.” This case was decided in 1832, and may be considered the first, giving a construction to our statute in relation to religious corporations, directly upon the questions now presented. Senator Golden, in The Dutch Church of Albany v. Bradford, deprecated the interference of lay courts with the decisions of ecclesiastical tribunals. But in that case and the cases there cited, including that of The First Religious Society of Whitestown v. Stone, ( 7 John. 115 ,) as well as the other cases to which we have now referred before Witherell’s case, these points had only arisen incidentally.
The chancellor again, in The Reformed Protestant Dutch Church in Garden-street v. Mott, sustained the title and power of the trustees to and over the temporalities of the society, even to alienation. He added, that the court of chancery in this state, independent of the English statute in relation to charitable uses, which he said was never acted upon in this state, had *122 original jurisdiction to compel the performance of a trust. ( 7 Paige, 77 .) This was a case of express trust.
This was followed by the case of Lawyer v. Cipperly, decided in 1838, ( 7 Paige, 281 .) The complainants were a clergyman and a part of the elders and deacons of Zion Church, an incorporated Lutheran society, and they sought to restrain the defendants, who were the trustees of the corporation, from depriving the complainants of the enjoyment of the property, and the use of the church belonging to the corporation. Lawyer claimed to have been duly nominated by the church council and elected, by the majority of the male members of the church and congregation ; but the defendants, the trustees, refused to allow him to preach, and denied the regularity of his election, and insisted that he and his adherents had abandoned the faith and doctrine of the evangelical Lutheran church, by refusing to adhere to the Augsburgh confession of faith; and had withdrawn themselves, and were endeavoring to withdraw the church, from the Hartwick Synod : a superior church judicatory to which Zion’s Church had attached itself many years before. The society was incorporated under the act of 1784. The chancellor adverted to and reaffirmed his views in Witherell’s case; and said the church or spiritual body, as to its doctrines, government and worship, is to be governed and regulated by its own peculiar rules, which neither the trustees nor the congregation have any right to interfere with or alter without the consent of the church itself; and declined to pass upon the question, whether a church, as such, has a right to change its government, discipline or mode of worship, or standards of faith with the consent of the trustees and congregation. That it was not sufficient that a minister should be called and elected by the church or spiritual body according to its general usages, but, if he is to use the house, or enjoy the property of the corporation, “ his employment must also be sanctioned by the trustees as the representatives of the temporal rights of the whole congregation. And if he is to receive any support or compensation for his services, either from pew rents or from subscriptions, or other ordinary contributions, by all or any of the stated hearers of the congregation, which subscriptions or contributions for the support *123 of a settled minister, are a part of the revenues of the congregation or society within the intent and meaning of the statute, the payment of such stipend must also be authorized by the electors at a regular meeting called for that purpose; or the trustees will violate their duty by suffering him to be thus employed and paid.” If,” said he, “ the trustees, without any reason whatever, should obstinately refuse to employ a minister who was every way acceptable to the great mass, not only of the church but also of the congregation, and who had not in their opinion departed materially from the standards of faith adopted in such church, I am not prepared to say this court would not correct such a flagrant breach of trust by removing them from then-office of trustees, so as to allow the congregation to elect others in their places. It must, however, be a case of a palpable breach of trust which will authorize this court to interfere; and it should not be done in any case where the church and congregation were very nearly equally divided as to the propriety of employing any particular person as their minister. And it is the right if not the duty of the trustees to withhold their assent, where there is reason to believe that the employment of the individual selected by a majority of the church, be he orthodox or not, will destroy the peace and harmony of the congregation or of the church.” And he held the complainants were not entitled to any relief which it was in the power of the court to give.
And Paddock v. Brown, ( 6 Hill, 530 ,) agreed with Lawyer v. dpperly, as to the power of trustees in the employment of ministers. There the call was by three elders of a Presbyterian church and one trustee, and contained a promise to pay the salary ; but those signing the call were held not personally liable, as it was considered the act of the congregation. This was decided in May, 1844; and in the same month, the eminent jurist who decided The Baptist Church v. Witherell , and Lawyer v. Cipperly, decided Gable v. Miller, ( 10 Paige, 627 .)
In Gable v. Miller, the trustees of a German Reformed Church, which was for a long time in connection with and subject to the judicatories of the Reformed Dutch Church in the United States, attempted to dissolve that connection, and employed German Lutheran pastors without the consent of a large portion of the *124 church and congregation, or of the classis with which the church was connected, and refused to permit the stated supplies, provided by the classis, to occupy the pulpit. A large mass of proof was taken, and among other things, upon the points whether the doctrines professed by the Lutheran Church were Arminian, and those of the Reformed Dutch Church, Calvinistic; whether those of the Lutheran and German Reformed were similar; and also, whether the German Reformed and Reformed Dutch Churches agreed upon the five controverted points, predestination, particular redemption, total depravity, effectual calling, and final perseverance. The precise time of the connection of this church with the Reformed Dutch Church was not settled ; but it was pretty clear that it continued uninterruptedly from 1764 to the revolutionary war, and at times since. In 1765 a new edifice was erected, and the foundation stones, it was alledged, were laid by every member of the consistory and congregation present, with the exclamation, “for a German Reformed Church.” The Reformed Dutch Church in America, as early as 1772, by its constitution recognized and declared the doctrines, rules and usages proclaimed by the Synod of Dort. The society was incorporated in 1784 under the general act. The assistant vice chancellor, Hoffman, gave an elaborate opinion and dismissed the bill. The chancellor reversed this decree. He considered that calling and maintaining German Lutheran pastors, was a perversion and misapplication of the corporate property, even though they did not preach the doctrine of their denomination; and so was the employment of a minister, not subject to the supervision of the Reformed Dutch Church. He admitted that, in The Baptist Church v. Witherell, he had expressed doubts as to the power of the civil courts to interfere. But he thought the cases in England and this country had settled the question in favor of the exercise of that jurisdiction, and cited the cases of Leslie v. Birnie, Milligan v. Mitchell, Attorney General v. Pearson, Same v. Drummond, Of St. Mary’s Church, Field v. Field , and Chambers v. The Baptist Education Society, herein referred to; and also Clough’s case in the Irish courts. And he *125 declared the complainants, who had been elected under a separate organization by those adhering to the Reformed Dutch Church, to be the true and legitimate board of trustees, and ordered the defendants to deliver the property to them and not interfere therewith, and account for the use, and pay costs. This decree was reversed in 1845 in the court for the correction of errors, by a vote of 14 to 3. (Miller v. Gable, 2 Denio, 492 .) Four opinions were given in favor of reversal, and one by Senator Porter, for affirmance. Gardiner, president, said he did not sympathize with the doubt expressed by the chancellor in The Baptist Church v. Witherell , whether “the trustees of a religious society are independent of all control in reference to doctrines and modes of worship;” but “I most cordially agree with him in opinion, that it must be a plain and palpable abuse of trust which will induce a court of equity to interfere respecting a controversy growing out of a difference in religious and sectarian tenets. Between that extreme which confers all power upon the congregation or the trustees, and the doctrine which subjects the property to forfeiture for departure from doctrine or forms of government in matters not indispensable to the great ends to be obtained by religious organization, there is a wide interval where we may take our stand, sustained by the law and by a sober and enlightened public sentiment.” And he considered the trust not violated by the application of the property, by the majority, to the maintenance of the worship of denominations not Calvinistic. Beers, senator, thought the trustees had nothing to do with designating the minister, and no right to determine his orthodoxy. All they could do was to pay his salary when properly elected. That they would be guilty of a palpable breach of trust if they shut the doors upon such person or withheld his pay, because they deemed him unsound in faith; and he considered the selection of pastor properly made in that case. Synopses of the opinions of Senators Barlow and Folsom, are given by lite reporter. Senator Barlow considered a majority of the church or society, or trustees, if the society be incorporated, at liberty, without incurring a forfeiture of the property, to deviate from the doctrine which prevailed at the time *126 of the donation, if there be no explicit declaration in the act of donation, that it is to be held for the support of particular doctrines. But where the particular doctrines or objects are in terms expressed, a court of equity will enforce the trust. Senator Folsom thought the deviation in the case, if any, was too slight and unimportant, to warrant the interposition of the court, if such interposition on account of departure from the belief of the founders and benefactors of a church was ever justifiable, which was considered to be a matter of doubt, and the connection with the Reformed Dutch church voluntary; and that the court of chancery was deprived of jurisdiction by statute. Senator Porter concurred substantially with the chancellor.
From this contrariety of opinions, it is impossible to say upon what ground the members constituting this large majority of the court, put the decision. Whether they considered there was no condition attached to the property; or that there was no deviation from doctrine or discipline; or that the deviation was too unimportant for the interference of the court; or that the court had no jurisdiction; does not appear. The first time the chancellor avowed the change in his opinions, and declared the court of chancery to have jurisdiction to interfere to control trustees in reference to doctrine and modes of worship of a religious society, and acted upon that principle, his decree was overthrown by the highest court in the state, by the decisive vote of nearly five to one.
In the cases of Kniskern v. The Lutheran Churches, (1 Sandf. Ch. R. 439,) before Assistant Vice Chancellor Sandford, and Bowden v. McLeod, (1 Ed. Ch. R. 588,) before Vice Chancellor McCoun, this power of chancery was declared to exist on the ground of trust, and in the former case acted upon; but as both cases were decided before the final decision of Miller v. Gable, though very ably considered, they must be deemed overruled, so far as they conflict with the latter. The People v. Steele, decided by Mr. Justice Edmonds in 1848, was an application for a mandamus. (2 Barb. S. C. R. 397.) Three Methodist churches united and formed a new church and became incorporated under the general act, built a church by voluntary contributions, and *127 were admitted into connection with other churches of that denomination by the presiding elder, and received preachers from the annual conference about eight years; when, their preacher having been suspended, they agreed to sustain him and to give him a salary of $1000, and rented to him the parsonage. But the bishop sent another preacher, to whom the trustees refused admittance into the church. A return to an alternative mandamus had been filed, and upon that, application was made at a special term for a peremptory one. The court granted it, and relied mainly, it would seem, upon the case of Rex v. Barker, (3 Burr. 1265 ; 1 Bl. R. 352.) That was an application for a mandamus to admit a dissenting minister, who, it was said, had been duly elected. The trust was “to suffer the meeting house to be for the public worship of God by such congregation of protestant dissenters, commonly called presbyterians, as should sit under and attend the ministry of the said John Enty or such other presbyterian minister or ministers as should be, in his or their room, successively, in all times then coming, be, by the members in fellowship of the said or such like congregation or congregations, regularly and fairly chosen and appointed to be minister or preacher or pastor to preach in the said meeting.” The distinguished counsel for the defendant, Thurlow & Dunning, opposed the application with great pertinacity, and would not consent to a new election or an issue, and the court finally, at a subsequent day, granted the writ. They said there was a function with emoluments, and no specific legal remedy. And that the refusal of the defendants to go to a new election or try it on a feigned issue, ought to be prefatory to the rule. That case, probably, would hardly be considered law in this state. (The People v. Stevens, 5 Hill, 616 .) But if it can be sustained at all, it must be on the ground that the election of the applicant was in the nature of an appointment under the deed of trust. As a general rule, a mandamus will lie, only, where the party has a legal right and no other remedy. There must be a specific legal right as well as the want of a specific legal remedy. An equitable right will not do, although an equitable right is no objection if there be also a legal one. (King v. Marquis of Stafford, 3 T. R. 646. Rex v. *128 Arch, of Canterbury, 8 East, 213.) And it is well settled that where a lecturer, pastor or other person, is supported by voluntary contribution, there a mandamus will not lie. There must be an endowment and a legal right. (Porter v. Clarke, 2 Simons, 520. Rex v. Bishop of London, 1 T. R. 331. Same v. Same, 1 Wils. 11. Same v. Same, 13 East, 417. And see Judges of Oneida C. P. v. People, 18 Wend. 79 ; Kendall v. United States, 12 Peters’ R. 524; 4 Bac. Ab. 502.) In England, a minister of a dissenting congregation, placed in possession of a chapel and dwelling house by those in whom the legal fee is vested, in trust to permit the chapel to be used for the purposes of religious worship, is a mere tenant at will to the trustees ; and his tenancy is determined instanter by demand of possession. (Doe ex dem. Jones v. Jones, 10 Barn. & Cress. 718. Doe ex dem. Nichols v. McKeag, Id. 721. And see the strong «case of Porter v. Clark, 2 Sim. 520.) Though it was intimated by Parke, J. in Doe v. Jones, that possibly, the defendants Shad a remedy in equity, if improperly turned out of the chapel by the trustees. If the views of the chancellor as to the duties of trustees in the employment of a minister and the use of the chapel in The Baptist Church v. Witherell , and Lawyer v. Cipperly; and of Assistant Vice Chancellor Sandford in Cammeyer v. United German Lutheran Churches, (2 Sand. C. R. 186;) and Senator Beers in Miller v. Gable; and the court in The People v. Runkel, are correct, it is difficult to see how a minister can obtain possession of the church or any part of the temporalities of the' corporation by mandamus, under our statute. That custom or usage can not avail against, the provisions of the statute, is too well settled to be doubted (Many v. Beekman Iron Co. 9 Paige, 195 . Co. Litt. 114, Morey v. Leach, Bl. R. 553. Noble v. Dursell, 3 T. R. 271. 7 Vin. 174, 187. Griffin v. Wood, Cro. 85. 2 Mod. 39. 6 Pet. 715 . 9 Wheat. 584 . 2 Cowen, 707. 4 T. R. 750. 3 Ch. G. Pr. 56. Shepherd v, Goswold, Vaughn, 169. 2 Cowen, 712. 5 Hill, 437 . 6 Id. 174. 1 Phil. Ev. 541.) And it would seem that the Rev. Mr. Wesley, the illustrious founder of Methodism, understood that the trustees in whom was the legal estate, at least *129 at law, could turn the preacher out of the meeting house. (2 Barb. S. C. R. 408.)
It is proper to remark, before closing this review of the authorities, that the supreme court of Vermont has recently decided the case of Smith v. Nelson, growing out of the same difficulties which have occasioned this controversy. Ch. J. Williams delivered the opinion of the court, and came to conclusions, in most respects, diametrically opposite to those entertained by the vice chancellor in this case.
I have thus given a summary of the cases bearing the most directly on the one before us. It will be observed that the most important of those in England were struggles between the Unitarians and Trinitarians; and the two leading cases were upon trusts originating when dissenters were tolerated, (by the toleration act, 1 Wm. & M. ch. 18—1689,) if they believed in the trinity; but for the denial of which they were subject to severe penalties; so that those claiming to retain the. property in the cases of The Attorney General v. Pearson and The Attorney General v. Shore, as well as in The Attorney General v. Drummond, supported doctrines, the avowal of which, when the trusts were created, would have been highly criminal by the laws of the land. This fact undoubtedly influenced those decisions, and thus circumstances which can not exist here, had a controlling effect upon the law of that country. The English cases too, were of unincorporated trusts, and so governed by the law of private trusts, and most of them in the nature of charities. They have been decided since our revolution, and in addition to what has been said in the courts of that country and this, their adaptation to the spirit and genius of our institutions has been doubted by our ablest jurists. Mr. Justice Story remarks upon the doctrines laid down in The Attorney General v. Pearson and The Attorney General v. Shore, that “ no such doctrine has as yet been ever promulgated in America; and from the peculiar circumstances of the country, and the diversity of religious opinions, it is improbable that it ever will be.” (2 Star. Eq. 1191, a, n.) Every case decided in England or in this country, shows that the subject is full of practical difficulties. *130 We might get along tolerably well, if no case would arise pushing us from the middle ground recommended by Gardiner, president, in Miller v. Gable. But the difficulty is in fixing limits and prescribing rules for the exercise of this jurisdiction. What shall be deemed a departure from the standard of a particular church ? According to Lord Meadowbank the law takes no judicial cognizance of these doctrines ; they must be proved like other facts. But what is so much mere matter of opinion, is hardly susceptible of satisfactory proof. In this case, and also in the case of Miller v. Gable, as appeared by the case book in that case, the evidence in relation to doctrine and discipline was most painfully conflicting. The judge must, as a matter of necessity, decide the cause upon theological and ecclesiastical inquiry. And how is the decree to be carried out? Is the minister to conform his discourses to the decision, under the direction and supervision of a master in chancery ? Chancellor Walworth doubted whether any master could be found possessing the qualifications necessary to decide, whether a singer performed his contract to sing, and ridiculed the proposition. (De Rivafinoli v. Corsetti, 4 Paige, 264 .) Religious opinions change, and it can not be otherwise, as long as man is an intelligent being, and his opinions and affections susceptible of change. St. Paul, in vain, besought the early Christians to be “perfectly joined together in the same mind, and in the same judgment.” Luther, though the great Protestant reformer, we are informed by the historian of the reformation, expressed a sentiment, not approved by many protestants of the present day—that he “ would rather receive the mere blood with the Pope, than the mere wine with Zuingle.” And the same author admits that “ unity in diversit

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5457883. Public record. Not legal advice.