TWO LECTURES
UPON THE
RELATIONS OF CIVIL LAW
TO
CHURCH POLITY, DISCIPLINE, AND PROPERTY.
BY
HON. WILLIAM STRONG, LL.D.
JUSTICE OF THE SUPREME COURT, U. S.
NEW YORK:
DODD & MEAD, PUBLISHERS,
751 BROADWAY.




Copyright secured. DODD & MEAD, 1875.




PR E FAC E.
THE two following lectures were delivered, by request, before the faculty and
students of the Union Theological Seminary in New York, during the winter of
i874-'5. In preparing them, it was not
the purpose of the author to make a full,
orderly, and elaborate exposition of the
subject intended to be presented. Neither
the time nor the space he was at liberty
to use, was sufficient for such an exposition.
But it was his effort to give to those who
heard him, such information as he regarded
quite important for them to have, respecting the general principles of municipal or




2              PREFACE.
civil law  bearing  upon  the  polity of
churches in this country, and upon their
discipline and property. Courts of law in
the several States of the Union are not
unfrequently occupied by controversies in
which these principles are involved, and it
is believed to be important that ministers
and other officers of churches should have
some  acquaintance  with  them.  Such
knowledge would, in many cases, tend to
relieve them  from  embarrassment, and
enable them to avoid the unhappy litigation by which the peace and prosperity of
churches is so much disturbed. In the
hope that what I have said in these lectures
may prove useful to others than those who
heard them, they are now given to the
press.
W. STRONG.




FIRST  LECTURE.
Gentlemen of the Seminary:
In attempting to exhibit before you
some of the organized rules of civil or
municipal law,'I find myself embarrassed
by several considerations. One is found
in the fact that abstract legal discussions
are proverbially dry and uninteresting to
those who have not made the law a subject
of considerable investigation. Such persons
cannot be expected to discover, at once,
how far-reaching a single principle may
be, what relation it bears to a system wide
enough to embrace all human conduct
in social life, and how necessary it is to




4            FIRST LECTURE.
observe carefully distinctions apparently
minute and unimportant, yet really significant and potential in results. There are
few minds for which the abstract has any
attractions. Even for the student whose
purpose it is to adopt the law as a profession, a resolute will is needed to overcome
the disrelish he is sure to encounter in the
earlier stages of his investigations.  It is
related of a distinguished English lawyer
that, when consulted by a father respecting the qualifications necessary for his
son's attaining success at the bar, he replied by the inquiry, "Can your son eat
sawdust without butter?"  I know, however that the uninteresting nature of my
subject ought not to embarrass me. That
which Mr. Chitty described as "sawdust
without butter" is not unnutritious food.
In multitudes of instances it has proved




FIRST LECTURE.            5
an element of power and of usefulness.
It by no means follows that, because a
subject to which we devote our attention
is difficult and uninteresting, it is therefore
unprofitable. It is often true, in our riper
years as it was in our boyhood, that the
studies which have least attraction for us,
are those which we most need to pursue;
those which tend in the highest degree to
our mental development and to our efficiency in life.
Other sources of the embarrassment
which I feel, are found in the difficulty of
selecting the particular topics to which your
attention may most profitably be directed,
and in the impossibility of thoroughly discussing any subject, selected within the assigned limits of these lectures. Selection is
indispensable. Municipal law is avery large
and comprehensive subject. It embraces all




6           FIRST LECTURE.
the numerous relations which men sustain
to each other in a state of civil society. It
cannot well be understood without knowledge of its history and development. Moreover, it is a system no part of which can
be thoroughly comprehended without acquaintance with every other part, and
without some conception of it as a whole.
It has sometimes been said to be the accumulated common sense of the wisest men
of many generations applied to the affairs
of social life, and adapted to that life's
innumerable relations.  Like everything
human, it is also,undergoing- constant
changes to meet the ever-changing conditions and wants of civil society. Among
its maxims are some, doubtless, which do
not commend themselves to the entire
approbation of the age in which we live.
Yet even these are accepted rules of civil




FIRST LECTURE.            7
conduct, and they are not without support
in sound reason. They are as controlling
as if they commanded universal approval.
For every civil relation, municipal law
prescribes a system of rules together constituting what is believed to be the most
just and convenient regulation of human
conduct therein. To enumerate these rules,
or to trace the modifications they have
undergone, would be impossible within the
limits of the most extended course of lectures. It would be the labor of a lifetime.
Yet something may be accomplished in a
very brief period. Though to make ourselves thoroughly acquainted with the science of civil law; with its general principles, or framework, and with the details of
its structure, requires (to use the words of
a distinguished English judge), more than
the "lucubrationes viginti annorum," we




8           FIRST LECTURE.
can, by making use of fragments of time,
partially explore one of its departments,
and make discoveries that will not be
without their use. This is all I propose
to attempt in these lectures.
There are some of the rules of civil law
with which, in my judgment, those who intend entering the Christian ministry ought
to be acquainted. Ignorance of them has,
I know, in some cases, proved embarrassing, and has led to unhappy mistakes.
I am aware it has sometimes been said:
Partial knowledge tends to error; and to a
limited extent this may be true. Another
maxim often quoted is " A little knowledge
is a dangerous thing, drink deep, or taste
not, etc." From this I entirely dissent.
Undervaluing not in the least the worth of
thorough acquaintance with every subject
in regard to which knowledge is sought,




FIRST LECTURE.           9
I still maintain that even imperfect knowledge is better than none. All our knowledge is imperfect. There is no subject in
morals or in law, the extremest depths of
which man has ever sounded.  The unknown greatly transcends the known. But
even partial knowledge is power, if, so far
as it extends, it be accurate.  In the hope,
therefore, that what I may say will prove
useful, though it be not a full exposition
of all that may be known of the subject,
I invite your attention to some remarks
upon a branch of civil law, some knowledge of which, I assume, you may desire
to possess.  It is the relation which civil,
or municipal law sustains, in this country,
to church polity, discipline, and property.
That some such relation does exist, may
be inferred from what I have already said,
but precisely what it is, and to what partic



IO           FIRST LECTURE.
ulars it extends, is not easily defined.
Certainly it is far less intimate in this
country than it is in any other country
where the common, or the civil law, is
recognized.
Great Britain, from  which  we  have
derived  the great body  of  our laws,
has a legally established form of church
organization connected with the government; as well as a form  of doctrine;
a religion of state.  The polity of the
church, as well as its discipline and property, are subordinate to the government
and are regulated by it. And in the continental countries of Europe, the church
is also supported by laws, and has a close
connection with the state.  In England,
the polity of the established church rests
in large measure upon the civil law, and
no substantial change or modification of it




FIRST LECTURE.           II
can be made without the consent of the
government.  Its bishops are appointed
by the crown, and they have a seat in
Parliament as bishops, or lords spiritual.
The church is dependent for its support
upon the civil law, its discipline is controlled or supervised by the state, and its
property is held and governed by the rules
of the common law. Dissent is tolerated, it
is true, but the relation of the civil government to the established church is almost
as intimate as is that of one of our State
governments to a corporation created by it.
In the United States there is no union
of church and state, and, there never can
be any without a change in our organic
laws.  The amendments of the Federal
Constitution adopted  in I789 expressly
ordain that " no religious test shall ever be
required as a qualification for any civil




12           FIRST LECTURE.
office or public trust under the United
States, and that Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise thereof." These, it is true, are restrictions
only upon the power of the general government.  They are not operative upon
the several States. But in almost all, if
not in all, the constitutions of the several
States may be found ordinances of similar
purport. I presume there is no exception.
They are variant in form and in modes of
expression, but their purpose and meaning
is substantially the same. They declare
generally that no preference shall ever be
given to one form of church polity over
another; or to one  denomination  over
another; that no religious test shall be
required as a qualification for office, or for
any position of trust, and that involuntary




FIRST LECTURE.           13
payments for the support of any religious
teacher, or for the erection of any religious
edifice, shall not be compelled.  They
declare it to be the right of all men to
worship God in any manner, at all times,
according to the dictates of their own conscience. The words of the constitution.
of Delaware well express the general sense
of all the provisions relative to this subject
which have  been incorporated into the
fundamental laws of the different States,
though they are less explicit than some
others. After premising that men have a
natural right to worship and to serve their
Creator according to the dictates of their
consciences; that it is the duty of all men
frequently to assemble together for the
public worship of the Author of the universe, and that purity and morality, on
which  the  prosperity  of communities




14           FIRST LECTURE.
depends, are thereby promoted, that constitution declares that "no man shall or
ought to  be compelled  to  attend  any
religious worship; or to the maintenance
of any ministry against his own free will
and consent, and that no power shall, or
ought to be vested in, or assumed by, any
magistrate that shall in any case interfere
with, or in any manner control, the rights
of conscience in the free exercise of religious worship, nor shall any preference be
given by law to any religious societies,
denominations, or modes of worship."
By the third section of the ninth article
of the constitution of Pennsylvania, it is
ordained, " that all men have a natural and
indefeasible right to worship Almighty God
according to the dictates of their own consciences; that no man can of right be
compelled to attend, erect, or support any




FIRST LECTURE.           15
place of worship, or to maintain any ministry against his consent; no human authority can in any case whatever control,
or interfere with, the rights of conscience;
and no preference shall ever be given by
law  to  any religious  establishment or
modes of worship."  I refer to no others.
These are fair samples of what may be
found in the fundamental law of the States
generally.  They are acknowledgments of
natural and indefeasible rights, and they
are disclaimers of governmental powers
claimed and exercised in Great Britain, as
well as on the contifient of Europe.
These provisions in the Federal and
State constitutions, it is obvious, have
rendered impossible any such close relation between civil government and church
polity and  discipline as now  exists in
England, and elsewhere, and they greatly




16           FIRST LECTURE.
restrict, if they do not forbid, interference
by the law, not merely with individual faith,
but with the external and internal affairs
of church organization, including church
discipline.
This renunciation of civil authority
over ecclesiastical organizations is the
assertion of a doctrine not always accepted
even in this country. It was not accepted
by most of the colonies in their early existence, by most of them even at the time of
the American revolution.  Down to that
period  there was a much  closer  connection between the church and the state
than  now  exists.  The  church  in  the
colonies was largely supported  by the
civil law, and its organization, as well as
the right to membership in it, was often
the subject of provincial legislation, and
received the attention of the magistracy.




FIRST LECTURE.          17
Indeed, it is only within the last forty years
that a complete divorce has been effected
in some of the States, and that the principles asserted in the Federal Constitution,
as well as in those of the States, have been
accepted in their full meaning.
The history of this change in the
relation of the civil law to church polity
and discipline would be interesting and
instructive, had  I time  to  follow  it
through all its course.  I can but briefly
notice it. It was quite in accordance with
what might have been expected that the
earlier settlers of the country, who came
principally from  England, brought with
them the law under which they had been
trained. And that they did bring with
them  the compulsory  usages of their
fatherland, that common law which regulated civil conduct generally, is well known.




18           FIRST LECTURE.
They knew  no other.  They had  been
accustomed to the existence of a church
closely  connected  with  the  state, and
subordinate, in many particulars, to the
king, to parliament, and to the civil magistracy.  It was very  natural that they
should adopt a similar system, with such
modifications only as their altered circumstances, their religious faith, and their
experience, suggested.  Accordingly, almost at the first, some of the colonial
legislatures began to enact laws respecting
the church, in imitation of the laws of
England.  Their enactments extended to
church organization, to the erection of
parishes with defined boundaries, to provision for the support of a ministry, to
furnishing places for public worship, to
compelling  attendance  upon such wor.
ship and  even to  the denunciation of




FIRST LECTURE.          I9
penalties against false doctrine and heresy.
In Massachusetts, parishes were created
only by order of the General Court.
Their metes and bounds were defined by
law. They were ecclesiastical precincts,
as fully as English parishes are, though in
many cases corresponding with township
divisions. It was recognized as an obligation proper to be imposed by the civil
law that every man inhabiting a parish or
town, or having lands therein, should pay
taxes for the support of the Gospel within that town or precinct, and such taxes
were imposed by statutes. Each town or
parish was required by law to have a
minister, a meeting-house, and a parsonage,
and, in case of neglect to furnish them and
to provide for the maintenance of the
minister, the county court was empowered
to order what maintenance should  be




20          FIRST LECTURE.
allowed, and to issue warrants to assess
taxes upon  the inhabitants, which  the
constables were required to collect like any
other town taxes. From  such orders of
the county courts appeals to the General
Court were also authorized.  Penalties
were imposed upon towns for neglect to
supply "able and faithful preaching" to
the people. Fines were levied by law for
absence from public worship, and judges
of county courts were enjoined by statute
to attend to the orders of the General
Court concerning purging the towns from
such ministry and  public teachers as
should be found vicious in their lives and
perniciously heterodox in their doctrine.
Magistrates  were  also  authorized  to
impose punishments upon those who, in
their opinion, were guilty of error or
heresy, and the right of persons to vote




FIRST LECTURE.           21
in all parish, or ecclesiastical matters, was
regulated by the civil law. All this exhibits a very close connection  between
the church and the state, almost complete
subordination of the church to the state in
matters of polity, of discipline, of support,
and even of faith.
In most of the other colonies a very
similarly close relation existed between the
civil law and the church.  This is especially true of those in New England, excepting  Rhode Island.  Nor was such
legislation confined to the provinces mainly
settled by the Puritans. There were differences in detail, but the right of the state
to direct church organization, discipline
and support, as well as to control doctrine,
to some extent, appears nowhere (except
perhaps in Rhode Island) to have been
seriously questioned.  By the charter of




22           FIRST LECTURE.
liberties of New York, established by the
General Assembly  in 1683, under the
Duke of York, complete enjoyment of
religious doctrine and worship was accorded only to persons who  professed
their faith in God by Jesus Christ. I am
not aware that the political rights of freemen were denied to those who were not
members of some orthodox church in the
province, as they were in some other colonies.  But in many other respects the
early legislation of New  York  relating
to ecclesiastical matters was much like
that of Massachusetts. In some particulars
it was more remarkable. For very many
years the civil governor was authorized to
collate any person to any church, chapel,
or other ecclesiastical benefice within the
province, as often as any of them happened to be void, and all religious minis



FIRST LECTURE.          23
ters were required to be commissioned
by the government. Even down to the
time of the revolution, Dutch and Presbyterian churches found great difficulty in
obtaining grants of charters.
The  first code of laws of Virginia
enjoined that religion be established in the
province according to the doctrine and
rites of the church of England, and thus
the English Episcopal church became the
church of the State. Strict conformity was
required by the statute law, and every
inhabitant was compelled to  contribute
for the support of the established church.
Civil law directed vestry men to be chosen
in every parish; the whole liturgy to be
read thoroughly in public worship, and
denounced banishment as the penalty of
teaching, even in private, by non-conformists. No marriage ceremony was tolerated,




24           FIRST LECTURE.
except performed according to the rubric
in the book of common prayer.  Fines
were imposed upon Quakers for meeting
in conventicles of their own, and for absence from the service of the established
church, and schismatics were subjected to
penalties for refusing to have their children
baptized.  These harsh provisions of the
law, it is true, were not all of long continuance, but there was in Virginia, down to
the period of the revolution, a close alliance between the civil government and
the church.
In East Jersey religious liberty was
confined to Protestant professors of the
Christian faith, and the legislature of West
Jersey prescribed a confession of faith as a
condition of holding office.  Indeed I feel
justified in asserting, after considerable
examination  of the  colonial laws, that




FIRST LECTURE.           25
nearly all the colonies, at some period of
their history, undertook to regulate ecclesiatical affairs as fully as if their power
over those affairs had been absolute and
unlimited.
I have not time to pursue this reference to historical facts further. Enough
has been said to show that, with rare exceptions, the colonies all claimed and exercised the right to control religious faith,
church order, and discipline, and asserted
complete supremacy over church organizations. It was not until they were brought
into intimate political union with each
other in the revolutionary struggle; not
until they were threatened with common
dangers from  abroad; when  it became
apparent that their safety depended upon
their perfect harmony  of feeling  and
action, and not until they were led to see
2




26          FIRST LECTURE.
how difficult, if not impossible, it would be
for them to unite on any common platform
of religious faith or church order, being
as they were, Congregationalists or Independents in New England, Presbyterians
and  Friends in Pennsylvania and New
Jersey, Roman Catholics in Maryland, and
Episcopalians in the South-not until then,
that they accepted the modern doctrine
which recognizes perfect religious liberty
and equality before the law, without the
existence, of any power in the state to
regulate or control church establishment
or church discipline.  Before that time
indeed, the church had been completely
divorced from  the state in some of the
colonies, but then its independence  became generally an accepted doctrine.  It
found a place at once in several of the
constitutions which superseded the colo



FIRST LECTURE.          27
nial charters; and in the celebrated ordinance of 1787, for the government of the
territory of the United States north and
west of the Ohio, it was declared to be an
article of compact between the original
States and the people and States in the
territory-a fundamental principle to remain forever unalterable, that no person
demeaning himself in a peaceable manner
should ever be molested on account of his
mode of worship, or religious sentiments.
This was before the adoption of the Federal Constitution, and it was soon followed
by the declarations I have quoted from
that instrument, and by the more explicit
declaration in the organic laws of the
several States.
But, notwithstanding  this  complete
renunciation of authority in the state to
prescribe any form of church government,




28            FIRST LECTURE.
or to control, or interfere with the internal
management of any church organization,
or to make provision for its support, or for
the  support of its  ministers; notwithstanding perfect religious freedom is now,
in this country, everywhere secured by
bills of rights incorporated into the fundamental laws of the land, it is not to be
inferred that the civil law has no longer
any relation to the church-to  either its
polity, its discipline, or its property. On
the contrary, it is still true that the law
recognizes the existence of the church as
an important element of civil society. It
acknowledges and protects its right to
exist, and to enjoy the possession of privileges and powers.  It recognizes also the
discipline of the church, by which I mean.
not merely its correction and punishment
of its members, but also its maintenance of




FIRST LECTURE.           29
church order and internal regulation. It
does not undertake to determine whether
one religious association is more truly the
church than another, or to allow to one a
preference over another, but it permits
each to make its own rules and to enforce
them.  It protects every church in the
enjoyment of rights of property, and whenever those rights are invaded it furnishes
a remedy. Recognizing the indefeasible
right of any body of men to associate for
the worship of God, in accordance with
the forms and modes selected by them, it
will not allow  their assemblies to  be
disturbed. In many of the States, I think
in all, statutes have been enacted against
such  disturbances, and even where  no
such statutes exist, it would be regarded
as a misdemeanor at law  to  disturb a
religious congregation, a misdemeanor




30           FIRST LECTURE.
punishable  by fine  and  imprisonment.
And, perhaps, it is regarded as an offence
of greater enormity to disturb a religious
assembly than it would be to create disorder in  any other gathering, for the
reason  that the right to assemble for
religious  purposes  is  guaranteed  by
organic  laws.  There  are  few, if any
statutes, prohibiting disturbances of other
assemblages.
No state recognition of the church,
however, or even of religious obligation,
is to be inferred from the fact that the civil
law  punishes many offences which  are
condemned by the Divine law, and which
the church also condemns and punishes.
Many offences against civil society are
acts prohibited by the Decalogue, and by
all  churches.  False  swearing,  theft,
adultery, and murder, are violations of




FIRST LECTURE.          31
municipal law, and persons guilty of them
are punished by authority of the state, not
because the offences are violations of
Divine law, or the law  of the church,
but because they are infractions of the
rules which  civil society has found it
necessary to establish for its own protection.  In  many of the States, orderly
observance of the Sabbath, and abstinence
from unnecessary labor, are enjoined by
statutes. Penalties are also denounced
against profaneness and blasphemy.  But
it would be a mistake to regard such
enactments as church recognitions. They
may have been suggested by respect for
religion, but as civil enactments they are
justifiable  only  by  their  tendency  to
protect the public peace, and to preserve
public decency, good  order, and good
morals-objects for which  civil society




32           FIRST LECTURE.
exists. Whether it be true, as has been
held by some courts (notably the highest
courts of New York and Pennsylvania),
and as has been declared by very many
eminent judges, that Christianity is, in a
limited sense, a part of the common law of
the land, or whether it be not true, "it is
still consistent with every guaranty of the
rights of conscience and religious liberty
to hold that it is the popular religion of
the country, an insult to which tends to
the disturbance of the public peace. The
laws and institutions of all the States are
built on the foundation of reverence for
Christianity. To this extent at least, it
must certainly be considered as settled,
that the religion revealed in the Bible
is not to be openly reviled or blasphemed,
to  the annoyance of sincere  believers,
without responsibility to the civil law."




FIRST LECTURE.           33
Apart from  this, however, there  is
abundant evidence that the law  in this
country  recognizes  and  tolerates  the
existence  of church  organizations.  I
may add that this is true; without any
regard to their form, or the details of their
structure, or the avowed principles which
lie at their foundation.  No matter what
may be their constitution, or the religious
creed adopted, even though it be offensive
to the moral sense of the community, the
law does not forbid association of those
who accept it, nor will it interfere to break
up  such  associations.  This  statement,
however, should be cautiously received,
for while it is true as made, it is equally
true  that the outworking of a vicious
creed may be prevented and punished.
That toleration and that liberty of conscience which the Federal Constitution and
2*




34           FIRST LECTURE.
the constitutions of the several States have
endeavored to secure are not construed so
as to excuse acts of licentiousness, or to
justify practices inconsistent with the
peace or safety of the State. In many of
the fundamental laws, this reservation is
expressly made.  In all, it is implied, if
not expressed.  No church organization
therefore, or church creed, can be made a
cover for any act which, by the law of
the State, is an offence against the public
peace, against good  order, and  good
morals. Civil law controls external conduct, though not articles of faith. For
example, I know of no power in the civil
government which can prevent the formation of a church (if such an association
can be called a church), one of the articles
of the creed of which should  be that
marriage imposes no obligations, and that




FIRST LECTURE.          35
free intercourse of the sexes is praiseworthy; or (another article), that one in
needy  circumstances may, without sin,
take the property of another to relieve his
distresses, against that other's consent.
No law exists in this country against such
an association. But whenever such principles are acted out, whenever an individual does any act accordant with such a
creed, he becomes amenable to the civil
law, and neither his church nor his creed
can protect him against legal penalties.
The Mormon church furnishes a good
illustration of what I mean. It is well
known one of the doctrines of that organization, is that polygamy is in harmony with
the law of God and commendable. Revolting as such a doctrine is, and demoralizing
in its influence, it has not been thought
that either the common law or any statute




36           FIRST LECTURE.
of the United States can break up the
organization, or forbid its members from
holding and  avowing such a belief, or
associating  for its  propagation.  But
the practice of it, in  other words, its
outworking, is within the control of the
civil law, and acts of Congress have been
passed forbidding and  punishing plural
marriages.  It would  be  idle  for a
Mormon indicted  for bigamy to plead
that his second marriage was recognized
as lawful by his church, and sanctioned
by his own religious convictions.
Thus far I have called your attention
mainly to the fact that the civil law
tolerates the existence of church organizations with such a polity as their members
may choose to adopt, without inquiry into
the articles of their faith. I may now add




FIRST LECTURE.           37
that the law also leaves the internal management of a church exclusively to their
own regulations.  Regarding them as voluntary associations, it assumes that their
members have consented to be bound by
the discipline to which they have subjected themselves. So far as that discipline  consists  in  the  correction  and
punishment of members, in suspension
from  membership, or in entire exclusion
from church privileges, the law not only
recognizes it, but to a certain extent justifies church action.  Thus even a public
declaration made pursuant to the rules of
order of a church from which a member has
been excommunicated because of his commission of an offence regarded as infamous
by the law, is justified, and no action of
slander can  be maintained  for such a
publication. The  law regards the fact




38           FIRST LECTURE.
that it was made in the exercise of the
discipline of the church as a protection to
the person who makes it, and allows the
church action to give to the announcement a character different from that which
it would otherwise wear. This must be
understood, however, with the qualification
that the act of discipline and its publication are not malicious.
Again, the law recognizes the right of
every church to determine finally who are,
and who are not its members. Herein is a
marked difference between churches and
other organizations. In regard to membership of private corporations generally,
such as benevolent, beneficial, or literary
societies, as well as those which are pecuniary, rights to membership are subjects
of legal cognizance, and there is a remedy
provided  for irregular amotion.  Such




FIRST LECTURE.           39
corporations may be compelled to restore
to membership one who has been expelled
without regular trial according to the established forms of the corporate organization,  and indeed those forms must be
strictly complied with, or a court of law
will interfere. It will review the proceeding, and insist upon its perfect regularity.
But a church is allowed to determine for
itself, construing its own organic rules,
whether a member has been cut off; and
no civil court will inquire whether the
amotion was regularly made, or issue a
mandamus to compel a restoration.  It
accepts the decisions of church courts
upon questions of membership as not subject to civil law review. At least such is
the general rule.
Such is also the case when the question
is, Who are the officers of the church?




40           FIRST LECTURE.
Upon that inquiry a civil court will not
enter, further than to ascertain what the
church itself has decided, or whom it recognizes. Whether a man is a minister, an elder,
a bishop, or a deacon, cannot be determined
in any court of common or statute law.
There  are however, some qualifications
of this statement, to which I shall hereafter refer.
Almost all, if not all, the questions
mooted in the civil courts of this country
relating to church polity, discipline, officers, or members, have arisen incidentally
in controversies respecting church property.  Our churches have various forms
of organization, and devise rules for their
government and discipline, having a bearing, greater or less, upon their rights to
the  ownership  and  the disposition of
pecuniary interests. The most prominent




FIRST LECTURE.           4I
forms are the Presbyterian, the Congregationalist, or Independent, and the Episcopal. Each of these is ordinarily an interior organization within a religious society.
Church property is generally more or less
under the control of these societies, the
constituents of which, even though not
members of the church, have a voice in its
acquisition, management, and disposal. It
is held by a variety of tenures, and impressed by a variety of trusts. Over these
trusts powers are often vested in officers of
the church, officers distinct from those of
the religious societies. What the trusts
are, and whether the powers over them
have been rightly exercised, has frequently
been a subject for consideration in civil
courts, and  it must be  confessed  the
decisions have not been harmonious. But
whatever they may have been, I think it




42           FIRST LECTURE.
may safely be asserted as a general propo-.
sition, that whenever questions of discipline, of faith, of church rule, of membership, or of office, have been decided by the
church in its own modes of-decision, civil
law tribunals accept the decisions as final,
and apply them as made.
The question may here be raised, Can
a civil court inquire, and determine for
itself, whether a church judicatory was
properly constituted, in accordance with
the established order of the church organization, and can it disregard its decisions,
if, in its opinion, the judicatory appears
not to have been thus constituted.  This
question' is at present a pending one in
the country, and opinions differ respecting
it. On the one side it is argued that the
analogy of the law requires the question
to be answered in the affirmative.   It is




FIRST LECTURE.           43
said to be an established rule of the common law that when a matter is submitted
to the decision of several arbitrators, all
must act together, or their decision will be
treated as a nullity, and that this is true
though it be stipulated by the parties or
directed by a statute that a majority may
decide. The presence of all at the trial is
indispensable, for the reason that the opinions and arguments of each may affect the
judgment of the others.  Hence a court
may always inquire whether a board of
arbitrators has been properly constituted.
There  is force in  their argument.
But on the other hand a church court can
hardly be likened to an arbitration.  It
is a creature of the organic law of the
church, not the mere appointee of litigants, chosen  to act within the  limits
imposed by them.  It is difficult therefore




44           FIRST LECTURE.
to see why, if it be recognized as a sufficient judicatory by the highest authority
in the church, civil tribunals must not
accept it as such.  If they must not, great
confusion  may ensure.  Their civil law
decisions may come into direct conflict
with decisions of ecclesiastical tribunals
in matters of which the latter have undoubted  cognizance.  Then  it may become  necessary for a court of law  to
determine who are proper officers of the
church, and even whether persons excommunicated are not still church members,
and entitled to all their rights as such;
a power which civil courts have never
claimed.  I do not, however, wish to be.
understood as expressing any fixed opinion upon this subject.
When I say, as I have said, that the
civil law does not interfere with church




FIRST LECTURE.            45
organization, or with questions of religious
faith, it is proper I should call attention to
an apparent, though not a real exception.
Cases sometimes arise in civil courts in
which it becomes necessary to determine
which part of a divided church is entitled
to  the church  property, and  where  a
correct decision  can  be  reached  only
after an examination of the order of the
church, or its ecclesiastical connection, or
after an investigation of its articles of
faith. These cases most frequently occur
when a division  has taken  place in a
church which is a member of a larger
organization and subject to ecclesiastical
authority outside of itself.  To such a
church, property is sometimes conveyed
by deed or will, for the expressed purpose
of maintaining a specified form of organization, or while it remains in a particular




46           FIRST LECTURE.
ecclesiastical connection, or it may be conveyed to a church, the name of which implies a certain form of church government.
A donor, or a grantor, has a right to give
to the subject of his gift or grant such a
direction as he pleases, or impress upon
it any religious use which comports with
his wishes. Thus property may be settled
for the  use of a Protestant Episcopal
Church, or for the use of a German Reformed Church, or a Presbyterian Church,
or, still more specifically, for the use of an
Episcopal Church in connection with the
Southern diocese in New York, or for a
Presbyterian Church in connection with a
particular General Assembly.  in such a
case when controversies arise within the
church respecting the ownership or control of property thus conveyed, and a
division takes place, courts of law will




FIRST LECTURE.          47
inquire which party, or which division,
adheres to the form  of church government, or acknowledges the church connection designated in the conveyance, and
adjudge the right to that party. Thus, if
the grant be for the erection or maintenance of a German Reformed Church in
connection with the synod of Pennsylvania, and  a majority of its members
resolve to sever the connection of the
church with that synod, courts of law will
decree that they have forfeited their right
to the property, and will adjudge it to
the minority that adheres to the synod.
So, if the grant be for the use of a Presbyterian church, and a majority of its members determine to become Congregationalists, or Episcopalians, or Methodists, the
civil law will interfere and protect the property for the exclusive use of those who re



48           FIRST LECTURE.
main Presbyterians.  Such a church, or
religious society is, in the eye of the law,
regarded as the trustee of a charity, holding its property in trust for defined persons, or objects, and civil courts will prevent its diversion to other persons, or other
uses. It may then be said generally, that
the law will not recognize any right in a
church endowed in connection with a larger
ecclesiastical organization, and in subordination to it, or endowed with reference to
any form of church order, or government,
to unite with any other organization, or to
become independent, or to abandon its
order and adopt another.  If it makes
such a change, it does it at the penalty
of losing  the property settled upon it.
That property the  civil courts will adjudge to  those members, however few
in number they may be, who continue to




FIRST LECTURE.          49
act in accordance with the ecclesiastical
connection and church order which were
accepted when the endowment was made;
and which were in contemplation of the
donor or grantor. Those who adhere and
submit to that established order and connection, are recognized  as the church
endowed, and the title to the property
remains in them. When I speak of a
church thus endowed, I mean, where the
church order or connection is indicated in
the instrument by which the property was
acquired. This rule of action, well established in the civil courts by a multitude of
decisions, it is evident, necessitates an inquiry into the constitution and discipline
of the church, not for the purpose of determining whether they are right or wrong,
but to enable the court to discover which
of the contending parties adheres to the
3




50           FIRST LECTURE.
order and connection, or (which is the
same thing), to discover for whose use the
settlement was made.  The inquiry is after
a fact essential to the identification of the
grantee, and that fact, whatever it may be,
when ascertained, becomes controlling.
The same reason which leads to such
an investigation, namely, that civil courts
will not permit the diversion of a trust,
even when held by a religious  society,
justifies also, in some cases, an inquiry
into the articles of faith or doctrines held
by a particular church, or by some of its
members.  When property is held, charged
with a trust for the use of a church receiving and maintaining certain religious doctrines, it occasionally happens that its
members depart from  the faith, and embrace other and contrary doctrines, while
still claiming to hold the property. In




FIRST LECTURE.            51
such a case, very plainly, if the property
can be retained by them, it is diverted from
the use to which it was first settled, and
the intent of the donor or grantor is defeated.  Such a perversion the civil law
will not allow. It will interpose its strongest arm to arrest it.  Here, too, as before,
the primary inquiry is, has there been a
violation of the trust? And that inquiry
can be answered only when it has been
ascertained what the doctrines were, to the
maintenance and propagation of which the
church property was devoted, and whether
there has been a departure from those doctrines by those who claim a right to the
property.
It was early laid down by a celebrated
British chancellor (Lord Eldon), and such
is now the accepted law of England, that
in internal controversies respecting rights




52           FIRST LECTURE.
to church property, it is the duty of a
court (a civil court), to decide in favor of
those, whether a minority or a majority of
the congregation, who are adhering to the
doctrine professed by the congregation, and
the form of worship in practice, and also to
the form of church government in operation in the church, with which the congregation  was connected, at the  time
the trust was declared.  It may perhaps
be doubted whether all this is true in
its fullest extent in this country.  But it is
true that when a settlement of property has
been made for the use of a church which
holds specified doctrines, those members
only have an interest in the property, that
hold those doctrines, if it can be gathered
from the settlement that the maintenance
of those doctrines was intended; and a
civil court will do whatever is necessary, in




FIRST LECTURE.            53
case of a division, to ascertain which party
holds them.
Now, as I have already said, church
endowments are clothed with an almost
boundless variety of trusts, relating not
only to church organization, ecclesiastical
connection, form of government, or order
of worship, but to doctrine and articles of
faith. Property may be settled for the use
of a Trinitarian church, or of an Universalist church, or of a church holding and
teaching the doctrine of total depravity, or
of one repudiating the doctrine of election,
or of one that accepts the Heidelberg catechism, or of one that believes only Stern.
hold and Hopkins' version of the Psalms
ought to be used in public worship. These
are specimens of trusts that may be created.
They are all lawful, and civil courts will
enforce them as made.  Every church, or




54           FIRST LECTURE.
portion of a church, or religious society,
holding property must comply with the
conditions expressed or implied in the settlement. Take a single illustration. If a
Trinitarian church upon which such a settlement has been made-a settlement manifestly having in view Trinitarian doctrinesdeparts from its faith, if a majority of its
members become Unitarians, they forfeit
all right to the property, and civil courts
will adjudge the whole to the minority
(however small) who remain Trinitarians.
Religious faith is thus recognized and
acted upon as a sufficient foundation for a
legal trust.
There are some cases, however, of
more difficulty. They are those in which
the trust has not been so accurately defined.  Let me state an example.  The
grant may have no expressed reference to




FIRST LECTURE.           55
any single doctrine.  Suppose it be made
to a church adhering to the creed of the
German Reformed Church, or, still more
loosely, for the erection and support of a
German Reformed church, without more.
Courts of law hold such a grant as creating a trust.  But what trust?  I answer,
one that is twofold in its nature. First, it
is for the use of a church that is German
Reformed in its form of government, its
order, and its discipline. Secondly, it is
for a church that holds the creed or articles of faith accepted by the German Reformed Church generally when the grant
was made.  Both form  and doctrine are
essential to the existence of a church.
Hence in enforcing such a trust, and protecting it, not only is the form of the beneficiary to be considered, but it is indisspensable to inquire what were the doc



56           FIRST LECTURE.
trines of the church when the trust was
stamped upon the property, and what are
the accepted doctrines of those who claim
to be beneficiaries. If there has been any
material departure from the acknowledged
standards of faith existing when the trust
was founded, those who have thus departed
are no longer owners, and they will not be
recognized as such by courfs of law. They
will be compelled to surrender the whole
to those who adhere to the standards, and
if all have departed  the  property will
revert to the donor.
I am aware it was said by a well-known
judge, when delivering the opinions of the
highest court in one of the States, this rule
is not to be interpreted as meaning that no
church or religious organization, to which
such a grant has been made, can change
any material part of its principles, or




FIRST LECTURE.            57
practices without forfeiting its property.
" This," said he, " would be imposing a law
upon all churches that is contrary to the
very nature of all intellectual and spiritual
life, for it would forbid both growth and
decay; not prevent, for that is impossible.
The guarantee of freedom to religion," he
added, " forbids us to understand the rule
in that way."  From  this I earnestly dissent. It was but the opinion of a single
judge; not necessary to the case decided,
and it is in conflict with all the well-considered decisions in this country and in
England.  In commenting upon it, another
judge has said, " Civil courts which have
the supervision and control of all corporations, and unincorporated religious societies or associations, in matters of property must be guided by plainer principles than those to be found in the nature
3*




58          FIRST LECTURE.
of intellectual and spiritual life. And the
constitutional guaranty of religious freedom has nothing to do with the property.
It does not guarantee the privilege of
stealing churches, or perverting truths, or
defeating the will of a donor. It secures
to individuals the right of withdrawing
from a church, forming a new society, with
such creed and government as they may
choose to adopt, raising from their own
means another fund; and building another
house of worship. But it does not confer
upon them  the right of taking property
consecrated to other uses by those who
may be sleeping in their graves." 67 Penn,
State, I47.
It may then, I think, be considered as
undeniable that in all controversies respecting the right to church property, when the
deed or will by which it has been acquired




FIRST LECTURE.            59
indicates that it was the intention of the
grantor or devisor the beneficial use of the
property should vest in a church having a
specified form of government, or connection, or form of worship; or holding certain doctrines, courts of law will institute
all the inquiries necessary to determine
who were the real beneficiaries intended,
and prevent the diversion of the property
to any other uses. And in so doing they
will, if necessary, investigate  the  doctrines held, or the religious belief of the
members, not for the purpose of passing
upon their soundness, or unsoundness,
but to identify the  persons for whose
use  the  grant or gift was  originally
intended.
Of course what I have said has no
application to a case where the property is
held by a church, or religious society, iwith




60           FIRST LECTURE.
no specific trust attached to it, or with no
other than that it is for a religious use
generally. Such cases sometimes arise in
independent churches, governed solely by
themselves, either by a majority of their
members, or by some  authority within
them, instituted solely by the members.
When in such a church the right to the
property. is in dispute between two divisions, the majority will control, unless some
internal authority has been constituted by
general assent to decide. Courts of law
will not interfere farther than to give effect
to the will of the majority, expressed by
themselves or by their agents.
I have thus endeavored, briefly as
possible, and quite superficially, I know,
to exhibit how far the courts of civil law
will enter the domain of the church.  To




FIRST LECTURE.            6i
sum up what I have said upon this point,
even at the hazard of repetition, I may
say that civil courts will not interfere with
any church organization, connection, order,
discipline, or doctrine, nor will it interfere
with the ownership of church property,
except to enforce its being held in strict
subordination to the uses to which it was
devoted when it was acquired.
In saying, as I have said, that the civil
law will not undertake to determine who
are the officers of the church, I must be
understood  as  having  spoken  only of
strictly church officers. There are officers
of religious societies, officers in whom frequently the legal titles to the church property is vested, over whom, and over whose
actions courts of law claim and exercise
jurisdiction.  I speak of trustees of the
church property.  Many religious socie



62           FIRST LECTURE.
ties are incorporated, and such corporations are as much under the control of the
civil law, as are any other corporate organizations. They are trustees of the property vested in them. In other cases the
property is held by natural persons as
trustees for the unincorporated church, or
unincorporated  religious "society.  The
trustees may have been designated by the
founder of the trust, or elected by the
members of the church, or of the society
out of which the church has been gathered.
To determine rights of property, it is often
necessary to decide who those trustees are,
and consequently to inquire unto the validity of the election of those claiming to
have been elected.  Such inquiries are
conducted precisely as similar ones are,
when the title of officers of lay corporations
is called in question. It is competent for




FIRST LECTURE.         63
a civil court to review the election, and not
only to decide who received the greatest
number of votes, but to pass upon the
qualifications of the electors. If none but
church members may vote, the court can
determine whether those who voted were
church members, but the rule for such
determination must be that which the
church has ordained. They must be considered members whom the church recognizes as such. So even in a case where
there is no direct question of property in
issue a civil court will eject a person not
lawfully elected from an office into which
he has intruded.
The General Assembly of the Presbyterian Church has a board of trustees, who
are elected by the Assembly. They are a
corporate body, having charge of the property of the church, holding it, and man



64           FIRST LECTURE.
aging it for the use of the church. It may
become, it has become, in the past, a question whether some of those trustees were
duly elected, and empowered to act as
such. This is not a question of ecclesiastical law; it is exclusively within the jurisdiction of the civil courts. But it must be
observed that neither these nor the trustees of any single church, or religious
association  are  church  officers.  They
have charge of the temporalities only, not
at all of the  spiritual interests.  The
acknowledged authority which courts of
civil law exercise over them is not therefore
in any manner inconsistent with the assertion I have made that such courts will not
try or decide who are church officers, but
will leave that question to be answered
by the church itself, and will accept the
answer.




FIRST LECTURE.           65
Thus far I have spoken mainly of the
church only, and of the relation in which
it stands to the civil law.  I have noticed
the religious society, within which the
church is generally a distinct organization,
only incidentally, for the purpose of exhibiting how far the civil law will take cognizance of the constitution, order, doctrines,
and discipline of the church. I propose
now to submit some observations respecting religious societies. They may, with
sufficient accuracy, be defined to be voluntary associations of individuals or families
united for the purposes of having a common place of worship, providing teachers
for instruction in religious doctrines and
duties, as well as for the administration of
the ordinances of the church, and generally
to support the cause of morality and religion in the neighborhoods where they are




66          FIRST LECTURE.
formed. What constitutes membership is
defined by the will of the associates, and
what shall be the rights of members is also
the subject of their agreement. They are
not to be assimilated to parishes, for they
have ordinarily no geographical limits.
Being voluntary associations they may
adopt such rules for their government as
their wishes may dictate, subject only to
such restrictions as their charters may
impose upon them, if they are incorporated.
Many religious societies in this country
are incorporated.  Many others have no
corporate existence. In most of the States
statutes have been enacted providing an
easy mode by which religious societies
may become incorporated, at small expense,
and when no such mode has been adopted
the legislature is competent to incorporate
them, though it cannot compel their ac



FIRST LECTURE.           67
ceptance of a corporate existence. The
act of incorporation brings with it very
considerable advantages. It endows the
corporators with a name, by which they
may sue and be sued in the civil courts.
It gives them  perpetual existence.  It
enables them, however numerous, to act as
one person, and it simplifies greatly their
tenure of property. The powers of such
corporations are generally defined by their
charter, and the officers, or agencies by
which they are permitted to act are also
defined. They are almost always allowed
to hold property for the use of the society
and the church connected with it, and
generally to manage the church temporalities. But an incorporated religious society
is not an ecclesiastical corporation, in the
sense of the English law. Such an organization is composed of spiritual persons,




68           FIRST LECTURE.
and its object is also spiritual. A religious
society incorporated is regarded, with us,
as a civil corporation, as much so as is a
railroad company, a bank, or an insurance
company.  Hence it is governed by the
law precisely as other corporations are.
It is subject to visitation, as others are.
Intrusion into its offices may be remedied
by an appeal to the civil courts, and it will
be restrained from  appropriation of the
property held by it to other uses than
those to subserve which it was created.
It would be impossible, in the time which
I have, to state minutely the provisions of
law respecting such corporations.  They
differ greatly in the different States, because
the provisions of the charters are various,
and because they have been more or less
the subjects of State legislation.  I can do
no more than call attention to some things




FIRST LECTURE.          69
in regard to which there is general concurrence of opinion. A religious corporation may take, either by deed or will, real
and personal property to an amount limited
by law. The statutes of the States, inheriting the jealousy of large accumulation of
property in the hands of ecclesiastical persons and religious houses which was so
great an evil in England before, and even
subsequent to the Reformation, have in
many cases enacted  that no  religious
society shall be incorporated, with power
to hold property yielding a greater annual
income than a specified sum. Of course,
where this is the law of the State, property
acquired by such a corporation beyond
the sum limited is liable to escheat to the
commonwealth. Within that limit there
is the same freedom of acquisition which
belongs to a natural person. And where




70           FIRST LECTURE.
property has been held for the Lise of an
unincorporated religious society, it will,
upon its subsequent incorporation become
vested at once, by force of the law, in that
corporate body.  No conveyance is necessary.  So an agreement with individual
members of a society to convey land to
them for the site of a church may be
enforced after they are incorporated, and
a conveyance will be decreed to the corporate body.
Religious corporations are also very
frequently authorized to purchase and hold
land for a burial-ground or cemetery, and
to improve it, though they have generally
no power to hold lands for any other than
religious uses.
In these rights, as in all others, they are
protected by the law, while they are restrained  from  transgressing the powers




FIRST LECTURE.            71
vested in them, and especially from perverting the trusts they hold.
A very large portion of the religious
societies in  the  country  are  unincorporated, and in a few of the States charters
cannot be obtained for them.  They are
therefore not legal entities, recognized as
having  a  legal  existence.  They  can
neither sue, nor be sued in civil courts.
They cannot hold property directly. Yet
they may control property held by others
for their use.  Donations and grants may
be legally made to trustees for the use and
benefit of an  unincorporated  religious
society, or for the support of the Gospel
ministry in connection with any particular
church.  Any person capable of disposing
of his property can create a trust for such
a purpose, and, if the trust is properly
created, it will not fail for want of a trus



72           FIRST LECTURE.
tee, for it is a rule in courts of equity that
no legal trust shall fail because there is no
trustee.  In such a case the court will
raise up one. This is an important principle often  called into  requisition where
churches and religious societies exist without the aid of corporate charters.  In all
the States the institutions of religion are
regarded as essential to the public wellbeing, and hence trusts for pious and religious  purposes are looked  upon with
great favor by the courts.
The law  of charities, at a very early
period in  English  judicial history, was
ingrafted upon the common law, and was
held to be applicable to trusts for religious uses; and we have upon this subject
adopted  generally  the  maxims of the
English law.  It is only necessary that a
gift, devise, or grant be made to trustees




FIRST LECTURE.            73
capable of taking the legal estate, and
that the objects of the trust be defined,
or capable of being ascertained. Even if
the trustees be incapable of taking, if the
conveyances be for charitable or religious
uses, they will be supported by courts of
equity. It follows from this that a bequest
for the benefit of a religious society, though
it names no trustee, is valid.  So is a
bequest for the benefit of poor ministers
of a specified religious denomination,
though no persons are appointed to take
and  distribute  the  fund.  A  court of
equity will raise up agents to make the
distribution.  I have not time, however,
now to go further into the law of charities
as affecting religious societies. The subject is a fruitful and interesting one, but I
must reserve what I have to say on this
subject for a future occasion.  It will be
4




74           FIRST LECTURE.
seen that, even when not incorporated, the
common law doctrine of trusts for religious
purposes affords such associations much
protection, and  enables  them   without
great embarrassments to support church
ordinances.
It is very important, however, in all
grants for the use of an unincorporated
religious society that the extent of the
powers of the trustee should be well defined, and the nature and objects of the
trust should be clearly specified. It prevents disagreement and litigation.  But
if they are not, if they are left indefinite,
the  trustee  may always apply to  civil
courts of equity for direction, and it will
readily and authoritatively be given.
I need hardly add that the law will
prevent a perversion of a trust in favor of
a religious society, as efficiently as it will




FIRST LECTURE.           75
protect any other trust, and courts will go
very far to ascertain what the trust is.  In
one case, where a deed had been made for
the use of a congregation of Christians,
designating the congregation by the name
of a sect, or denomination, without any
other specification of the religious worship
intended, it was held that the intent of
the donors, or founders, in that respect,
might be implied from their own religious
tenets, from the prior and contemporary
usage, tenets, and doctrines of the congregation, and from the usage, tenets, and
doctrines of the sect, or denomination, to
which such  congregation  belonged.  It
was also held that in ascertaining the early
and contemporary usage and doctrines of
such sect, resort might be had to history,
and to standard works of theology of an
era prior to the origin of the dispute or




76           FIRST LECTURE.
controversy. This ruling, I apprehend, is
in accordance with the general practice of
civil courts.
I may not now  pursue this subject
farther. There are other matters relating
to the discipline and property of the church
in this country, of which the civil law takes
cognizance.  The most important are the
application of the law of charities, the
legal effect of by-laws of religious corporations, the tenure of church property, the
rights of pew-holders in church edifices,
and other things of a kindred  nature.
What I have to say respecting these must
be reserved for another lecture.




SECOND LECTURE.
Gentlemen of the Seminary:
ON a former occasion I called your
attention to the fact that what civil law
lawyers denominate the law of charities
has an intimate relation to church property
in this country.  I propose now to add
some remarks respecting the history of
this law, and its application by civil courts
to the property of churches and religious
societies. Its importance can hardly be
over-estimated.  The law  of trusts and
the law of charities, closely connected as
they are, constitute the protection of our
churches, so far as they hold and enjoy
property.




78          SECOND LECTURE.
It is generally believed, and probably
the belief is well founded, that the origin
of the law of charities must be sought for
in an age long anterior to the time when
the common law  of England came into
existence. It is undoubtedly one of the
legacies bequeathed to modern times by
Roman civilization. Traces of it are found
very early in the decisions of the British
courts, though it was not until the reign
of Elizabeth that the system  of law, now
so well understood and so important to the
welfare of the community, had grown into
any considerable degree of completeness.
Charities were known, doubtless, before
the Christian era; but, so far as is known,
they were not, before that period, the subjects of municipal or civil regulation. In
the  beginning  of the  fourth  century
(A. D. 315), Constantine, the first Chris



SECOND LECTURE.           79
tian Roman Emperor, granted permission
to his subjects to bequeath their property
to the church, and, as a consequence of
this permission, such bequests began at
once to be very largely made.  Indeed
almost immediately so  much  property
came by devise into the ownership of the
church, for various purposes designated by
the donors, or testators, for the erection
of buildings, and maintenance of religious
houses and orders, as well as for church
ornaments and religious uses, that it was
felt to be a great social evil, and in the
year 364 A D. the Emperor Valentinian
felt constrained to enact what is called a
mortmain law, the object of which was to
prevent the accumulation of lands by religious houses, or religious corporations.
The mass of property then consisted in
land.  For a time Valentinian's law  re



80           SECOND LECTURE.
strained gifts, grants, and devises of lands
for religious, pious, or charitable uses.
But the  restraint was  temporary.  It
gradually relaxed, until in the time of Justinian (A. D. 529), it became a recognized
maxim of Roman jurisprudence that legacies to pious uses (which  included all
legacies destined for works of piety, or
charity, whether they related to spiritual
or to temporal concerns), were entitled to
peculiar favor in the courts, and were to
be deemed privileged testaments. In the
Roman courts the construction of wills
which made  charitable  dispositions  of
property, was far more liberal than that
given to other wills. Charitable legacies
and devises were never permitted to be
lost in consequence of either the uncertainty, or failure, of the objects for which
the testators destined them.  Thus, if a




SECOND LECTURE.          8I
legacy or devise was given to the church
generally, or to the poor generally, without
any specification of the particular church,
or without designation of what poor were
intended, the law and the courts sustained
the gift by awarding the property to the
church of the parish or neighborhood in
which the testator lived, or to the hospital of the place. In the time of Justinian it was a common usage to give by
will a legacy to God, and in such cases the
courts construed the legacy to enure to
the parish. Whenever the objects of the
testator's bounty were indefinite, the legacy,
if intended for a charitable use, was carried
into effect by the court, and the judge
designated  the  persons  to  whom  the
bounty should be applied.  More extraordinary still, if a legacy or devise was given
for a definite charitable object, which had
4*




82          SECOND LECTURE.
been previously accomplished, or which
had failed, it was nevertheless held valid,
and the property given was, at the discretion of the court, applied to some other
object, supposed to be cognate. For illustration, if a testator had left a legacy for
building a parish church, or for a new
apartment in a hospital, and before his
death, the church, or the new apartment
had been built, or, in the opinion of the
judge, was not necessary, or useful, the
legacy was not allowed to fail, but it was
applied to some other object of piety, or
of charity, designated by the judge, and,
perhaps, never thought of by the testator.
These principles of the. Roman law
were, at a very early age, quite as soon as
wills were permitted, introduced into the
common law of England, though, perhaps,
shorn of some  of their extravagances.




SECOND LECTURE.           83
The early English chancellors were priests
and  bishops of the  Roman  Catholic
Church.  It was not until the reign of
Edward Third, (A.D. 1340), that the first
lay chancellor was appointed.  It was
very natural, it ought to have been expected, that when  those who had  the
charge of the estates and testaments of all
decedents-those who admitted all wills to
probate, and who had control over all
executors and administrators, were ecclesiastics-it was natural that a system so
favorable to the church as the Roman law
of charities should meet with approval,
and should be adopted as the law of the
realm.  It was so adopted.  I do not say
that all the perversions of testamentary
intent, which were tolerated by the Roman
law, were ever repeated in the judicial
history of England, but many of them




84          SECOND LECTURE.
were, and, certainly prior to the reign of
Queen Elizabeth, the construction given
by the chancellors to charitable bequests
was sometimes alarmingly unreasonablepractically indeed, a substitution of the will
of the judge for the will of the testator.
Since that reign there has been less extravagance, but there is still a disposition
to  go great lengths in sustaining and
directing the application of testamentary
dispositions which, in the judgment of the
law, are regarded as charities. The action
of courts of equity in regard to such dispositions has always been  exceptional.
Grants, bequests, or devises for religious
or charitable uses are upheld, when similar
grants, bequests, and devises, for other uses
not charitable, would fail.
To show how great the favor extended
to charitable gifts is, I mention some




SECOND LECTURE.            85
decisions recorded in the books.  They
are to the following effect. Generally, if
a testator give his property to such person
as he shall hereafter name as his executor,
and afterward he appoints no executor,
or if he appoint one and the person appointed die in the life-time of the testator,
the gift will fail. Courts hold that in such
a case there is no person to take. But if
a like bequest be given to an executor in
favor of, or in trust for, a charitable use,
the gift will be sustained, though no executor be named.  Equity will supply an
executor to effectuate the charitable intent
of the donor. So if a bequest be given to
persons to distribute in charity, and they
all die before the will takes effect, the
bequest will be enforced, though it would
have failed if made to the same persons
for their own use. It is upon this princi



86          SECOND LECTURE.
pie that devises to persons incapable of
taking are upheld, when made for religious
or charitable purposes. And, generally, it
may be said to be well established that if
a devise or a bequest be for a charity, it
matters not how uncertain the objects or
persons to be benefited may be, if any
mode is appointed by which they can be
designated; nor whether they are inz esse,
or not, or whether the legatee or devisee
be a corporation capable of taking, or not.
Civil courts will sustain the gift and carry
it into effect. Such is now the law  in
England, and equally the law  in this
country.
I have already called attention to the
fact that church property is regarded by
the law as property devoted to charitable
uses.  Observe now some of the operations of the law of charities upon church




SECOND LECTURE.            87
rights of property, as that law is administered by civil courts.  It will be seen that
its  importance can hardly be over-estimated.  A devise of property to an unincorporated religious society, or even to a
deceased person for the use of such a
society, is good, and it will be established
in a court of equity. It has been decided
that a gift to the "Monthly Meeting of
Friends, of Philadelphia," to be held by the
meeting as a fund for the distribution of
good  books among poor people in the
back parts of Pennsylvania, was a valid
bequest. This is a significant illustration
of the great value which the law of charities has in its application to religious societies.  The monthly meeting was not incorporated.  It was a mere voluntary religious association. It was incapable of
taking or holding property for ordinary




88          SECOND LECTURE.
uses, but it was regarded as competent to
take, as the trustee of a charity. And
what could  have been  more indefinite
than the description of the beneficiaries?
They were poor people in the back parts
of Pennsylvania.  Many  other similar
decisions have been made, and I understand it to be the established law throughout the country that unincorporated religious societies may hold and manage
property devised to them  for religious
uses, and may even hold as trustees for
charities of which they are made the
almoners.  True, they cannot be  legal
trustees, but courts of equity will protect
them in the enjoyment of such rights, and,
when necessary, will raise up legal trustees, through whom they may act.
And it is not necessary, as I have
already intimated, that the beneficiaries of




SECOND LECTURE.           89
the charity be certainly defined, provided
there be a discretionary power vested
somewhere over the application of the
property, and a religious society, though
unincorporated, may be  the  appointed
agent to direct, at its discretion, such
application.
So it has been ruled in courts of law
that a charitable bequest directly to beneficiaries, enures in some cases to the
church organization that has those beneficiaries in charge. Thus a gift to the poor
of a church, or religious society, is construed to be a gift to the church or society
itself, in trust, to distribute among its poor,
and the church is entitled to claim  the
fund.  A gift to the mission and schools
of the Episcopal Church, about to be
established at Port Cresson (Africa), was
held to be a gift in ease of The Domestic




90          SECOND LECTURE.
and Foreign Missionary Society of the
Protestant Episcopal Church which established those schools, and the legacy was
decreed to that society. The law regards
the substance rather than the words of the
gift, and in favor of a charity vests it in
the party capable of taking it-in the
party in whose ease it was given.
So when there is a defect in the deed,
or will, by which a charitable use has been
attempted to be created, either in naming
the party intended to be the trustee, or in
describing the beneficiaries for whom the
use was designed, courts of equity will
supply the defect, when it can be supplied,' ut res magis valeat, quam  pereat."
Cases often occur in which a testator has
misnamed the church, or religious society,
for which he intended the legacy, but if
the court can ascertain with reasonable




SECOND LECTURE.          9I
certainty what society he had in view, the
legacy will be sustained, and adjudged to
the corporation or society manifestly intended.  Thus, a bequest made to the
"trustees, or those who hold the funds of
the Theological Seminary at Princeton,
New Jersey," was decided to be a gift to
the " trustees of the Theological Seminary
of the Presbyterian Church at Princeton,"
the latter being the corporate name. This
was because there was no other body
answering to the description, and the corporation was generally known as The
Theological Seminary at Princeton. Legacies for charitable uses, however, sometimes fail for want of a proper description
of the legatee, and therefore extreme caution should always be exercised in gifts or
grants to religious societies, as well as in
conveyances to any benevolent organiza



92          SECOND LECTURE.
tion, that the donee, or grantee, be correctly
described.  If the  intended  donee, or
grantee, is a corporation, it has a name
given to it by its charter, a name by which
it is known in the law, and that name
should always be used.  It is unsafe to
employ only a part of it.
But, indulgent as the law of charities is,
it is proper I should remark that legacies
to religious societies will not be sustained,
if they require the property, or any part
of it, to be held for perpetual accumulation.
Churches, I know, are not prone to hold
property for unending accumulation, or for
accumulation at all, but gifts are somemade for such a purpose.  Perpetuities
of accumulation, however, are the abhorrence of the law, and they are not tolerated even to support a charity.
I may also notice some statutes that




SECOND LECTURE.           93
exist in England, and some that are in
force in many of the States of our own
federal union.  The British statutes of
mortmain are not generally in force in
this country, but their spirit pervades our
common law, and there are enactments of
many of our legislatures, intended to protect the sick and infirm  against improvident charitable dispositions of their property, near the close of life. These enactments declare in substance that no charitable devise or bequest shall have effect as a
testamentary disposition unless made more
than a prescribed time before the testator's
death.  In some of the States this period
is fixed at thirty days; in others it is extended to one year.  These are the only
restraints that occur to me now upon the
right to settle property for the use of religious and charitable associations, except




94          SECOND LECTURE.
that when such associations are incorporated, they are, as I have already remarked, sometimes prohibited by the law
of their being from  holding property,
greater in amount, or of a larger annual
value than the sum  mentioned in their
charters, or prescribed by the statute law
of the State.
Before leaving this subject I will add a
few observations that may appear somewhat irrelevant to it. What I have said is
enough to show that the peculiar law of
charities is very closely related to church
property, especially to its acquisition and
use. But the question may occur to you,
What is a charity, in contemplation of law?
We know what it is in common understanding, but what is its legal meaning?
I shall not attempt to answer the inquiry
fully. It would require more time than I




SECOND LECTURE.           95
can now devote to it. A  charity has a
much wider significance in civil law than
it has in the popular conception. It is
enough for my present purpose to say that
in this country gifts or settlements for religious uses have always been considered
charities.  And no matter how the property is acquired, if the purpose of its acquisition be the erection of a church, or the
maintenance or propagation of religion,
the law regards it as settled for a charitable
use.  Such was not always the law  in
England.  Even after the  Reformation,
some such gifts were denied to be charities,
and in the spirit of religious intolerance
that prevailed, they were declared to be' gifts for superstitious uses." As such
they were condemned by the courts, and
adjudged to be void. indeed, one object
of the remarkable statute of the 43d Eliza



96         SECOND LECTURE.
beth, undoubtedly was to distinguish between charitable uses, recognized by law,
and superstitious uses. The uses declared
by the courts to be superstitious, were
generally those created by Roman Catholics, or by Jews. Thus a legacy to certain priests and chapels, that the testatrix
might have the benefit of their prayers
and masses,-a bequest for educating and
bringing up poor children in the Roman
Catholic faith,-a bequest by a Jew  to
"apply and dedicate the revenues thereof
toward establishing a Jesuba, or assembly
for reading the law, and instructing people
in our holy religion," were all held to be
for superstitious uses. Such  decisions,
however, were not directed against Romanists and Jews only. Non-conformists were
were also under the ban. In one case, a
clergyman of the established church be



SECOND LECTURE.          97
queathed to Mr. Baxter $600, to be distributed by him to sixty poor ejected ministers, saying he did not give it them for
the sake of their non-conformity, but because he knew many of them to be pious
and good men, and in great want. He
also gave ~20 more to Mr. Baxter, to be
laid out in a book, called Baxter's Call to
the  Unconverted.  Strangely  enough,
Lord Keeper North decided these legacies
to be for superstitious uses, and therefore
void.  It is true this decision was atterward set aside, and it is probable that all
these legacies would now be regarded as
charities, even  in  England.  Certainly
they would in this country.
But it is far from being clear that with
us a gift for an irreligious, or even an
infidel use, could be sustained. In the
well known case of Vidal vs. Girard's ex5




98          SECOND LECTURE.
ecutors, decided in 1844, by the Supreme
Court of the United States, the court sus.
tained as a charity, a devise for the establishment of a college for orphans wherein
the testator directed and enjoined that no
ecclesiastic, missionary, or minister of any
sect whatsoever, should ever hold or exercise any station or duty, and that no such
person should ever be admitted for any
purpose, or as a visitor within the premises
appropriated to the purposes of the said
college.  The devise was vigorously attacked by most eminent counsel, on the
ground that the plan of education directed
by it was derogatory to the Christian religion, tending to weaken men's respect for
it, and their conviction of its importance,
subverting the only foundation of public
morals, and therefore  mischievous and
undesirable.  On the other side the devise




SECOND LECTURE.           99
was defended by equally eminent counsel;
and it was denied that such was the tendency of the plan. But throughout the
whole argument, as well as in the opinion
of the court, it appears to have been assumed that had the will been truly obnoxious to the objection urged against it, had
it intended the establishment of an irreligious or infidel college, the devise might
not have been a valid charity. That indeed was not the decision, but the case
leans in that direction. And in two cases
at least in the highest courts of two of the
States, it has been more than intimated
that a gift in trust for the support and
propagation  of irreligion and  infidelity
cannot be supported.  I do not perceive
how it could be, as a charity, entitled to
the protection of the law of charities.
But I have dwelt too long upon this




I00         SECOND LECTURE.
subject.  My apology must be that in the
law of charities is found the chief protector of church property, and, when associated with the law of trusts, the chief
regulator.
I invite your attention now to some
matters which  relate to the tenure by
which  church  property may  be  held.
Upon this subject not much is needed.
The simplest, and, as I have heretofore
said, the best mode of holding such property is by the agency of a corporation
whenever the laws of the States permit
the incorporation of religious societies.
The powers of such a corporation are, of
course, only those which are conferred by
its charter, it being a well settled principle
of law that no corporation is deemed to
possess any other power than that which




SECOND LECTURE.          101
is expressly granted, or given by necessary
implication. In obtaining a charter, therefore, while it is undesirable that much
detail of regulation should be inserted in
it, it is important that it should confer all
necessary powers to hold and  manage
property for the uses intended.  Corporate organization not only gives perpetual
legal existence to an artificial being, capable of taking, holding, and managing
both real and personal property, but it
enables all the corporators to act as an
unit in all matters in which they are interested relating to the purposes of their
organization.  To a church, or religious
society, incorporated, lands or other property may be directly conveyed, and when
thus conveyed, they may be used freely
and unrestrictedly, except that they cannot be diverted to other objects than those




102        SECOND LECSTURE.
for which the property was at first destined.
But I think it may be laid down as true,
that an  incorporated  religious society
would  not be permitted by the law  to
hold property for any other than religious
or charitable uses. Such a holding would
be regarded as foreign to the purposes
for which  the corporate existence was
given. While a grant, or a devise, might
be made to it for the support of the Gospel,
or for any religious use, or, perhaps, for
any use that the law recognizes as charitable, it could not be made a trustee for any
use not religious or charitable.  Many
trusts, known and recognized by the law,
are trusts for natural persons and secular
purposes. John Stiles holds land in trust
for Richard Roe, the latter being entitled
to the rents, issues, and profits. Such a
trust an  incorporated religious society




SECOND LECTURE.          103
cannot generally hold. Nor can it be the
executor of a will, though it may be a
devisee, or a legatee.
The charters of church corporations
exhibit great varieties. In some, the members of the church itself, and only they, are
the corporators.  They  alone have the
right to elect the officers and managers.
In others the members of the corporation
may be the associates in the religious
society, and not necessarily members of
the church, for the use of which the corporation is authorized to hold property.
In others still, the officers, managers, or
agents may be elected or appointed by an
external organization, none of the members of which are members of the corporation. In the case of single churches this
is not common, but there are such instances in the church at large. The trus



104        SECOND LECTURE.
tees and managers of the corporation, " The
trustees of the General Assembly of the
Presbyterian Church" are elected, not by
any members of the corporation, but by
the  General Assembly. Some  of the
boards of the church have no membership.
Their officers are appointed by an exterior
authority. These differences of structure
arise out of the organic laws or charters
which have been obtained from the State.
They are immaterial to the tenure of the
property. They relate rather to its management.  It is the corporation that holds
the property.  In that the title is vested.
That only can sue for injuries to it. That
only can sell it. Individual members of
the church, or even of the corporation, have
no legal interest in the property. They
may control its use through the corporation, but they are not owners.




SECOND LECTURE.           105
A second mode in which church property is often held, is by unincorporated
trustees who hold the title for the use of
the church, or for the use of a religious
society, out of which the church is gathered. Lands, or personal property, may be
conveyed by deed or will to a person and
his heirs in trust for a specified church or
society. The grantee, devisee, or donee,
in such a case is the owner in law, though
he has no beneficial interest. The whole
beneficial use is in the church or society
as fully as if they were the absolute owners. Yet he alone can sue in a court of
law for trespasses upon the property, and
he alone can make title to others in case
of a sale. If he dies, the ownership descends to his heir-at-law, clothed however
with the same trusts with which his ancestor held it. If there be two or more trus5*




1o6         SECOND LECTURE.
tees, the ownership, on the death of one
passes to the survivor or survivors, and
on the death of the last survivor descends
to his heir-at-law, who will be compelled
to allow such use of the property as the religious society may direct, not inconsistent
with the purposes for which the grant was
first made.
A third mode in which church property
is sometimes held is by the agency of two
co-operating corporations, one, the religious society with power to elect and
employ a minister, collect dues, and hold
property directly as the property of the
society, and the other, having also power
to acquire, manage, and dispose of lands,
and personality in trust for the benefit of
the society. This is a cumbrous system,
but it is sometimes selected for the supposed reason that as each of these dual




SECOND LECTURE.         107
corporations performs a somewhat different office, they act as checks upon each
other, and that thus property may be held
and perpetually devoted to religious uses,
with less danger of its being squandered
by those for whose use it is held, and with
less risk of its being seized, or sold on
execution for liabilities incurred. In my
opinion such a complex arrangement adds
little, if anything to the security of the
property, and it must be attended with
many embarrassments.
A fourth mode in which church property is held, is by an unincorporated religious association without known trustees.
A person may undoubtedly give by will
both personalty and realty to an unincorporated religious society, without the intervention of named trustees, and the law
will sanction the gift. Whether lands can




I08        SECOND LECTURE.
be granted directly to such a society by
deed, may admit of considerable doubt.
Legal form is not so essential in a will as
it is in a deed. The law recognizes the
fact that a testator when making his will
may be infirm, and "inops consilii," destitute of legal counsel. A will therefore
sometimes has an operation which a deed
using the same words would not have.
But, though an unincorporated religious
society may hold property devised or bequeathed to it for pious purposes, and,
possibly, property conveyed to it by deed,
such a tenure is attended with serious
embarrassments.  Ordinarily such a society cannot sell its property. It cannot
make a deed. Of course it can make no
disposition of it by will. It is always embarrassed in protecting its own enjoyment.
It cannot sue for trespasses upon the




SECOND LECTURE.          I09
property. Courts of equity, it is true, will
raise up trustees for the protection of such
societies, and in some of the States statutes
have given to them  a quasi corporate
existence. But prudence and convenience
alike dictate that in all cases where an unincorporated religious society desires to
acquire and to hold property of any nature,
the legal ownership thereof should  be
vested in trustees for the use of the society. Such trustees have power to protect
the property, to sue for injuries to it, and,
under the direction of the society, to sell
and convey it. At the same time they are
amenable to courts of law. They may be
compelled to account, and they may be
restrained from any violation of their trust.
There is still another mode in which
property is largely held in this country for
religious, or church uses. In the Mora



110         SECOND LECTURE.
vian congregations the property devoted
to pious uses is held neither by a corporation nor by trustees, nor yet by the congregation itself. In some of the congregations, and I presume in all, the title to
the churches, school-houses, and cemeteries is held by the bishop, who transmits
it by will to his successor in office. And
such is the tenure of most Roman Catholic
churches in the country. The title to the
real estate resides in the bishop of the
diocese. In a certain sense he is a trustee thereof for religious uses, but there is
no declaration of trust, and he controls the
enjoyment, and  transmits the title  by
devise.  The purpose of this arrangement
is to exclude the laity from that power of
interference which they would have were
the title vested in a corporation. But inasmuch as the holders of such titles are




SECOND LECTURE.          I I I
not corporations, either sole or aggregate,
as are the English bishops, deans, and even
parsons, lands, held by them, do not pass
to their successors in office, unless through
the instrumentality of a deed, or will.
These are the most common modes in
which property is holden for religious or
church uses.  Whatever mode, other than
the last mentioned, may be selected, it is
of great importance that the instrument
(whether it be a deed, or a will), by which
the property is acquired, should recognize
the distinctive character of the organization
for the benefit of which the conveyance is
to be made. The reasons for this will
appear from  what I said in my former
lecture.  It is necessary in order to prevent a possible perversion of the property
from  the uses for which its acquisition
was intended.




112         SECOND LECTURE.
i. If the church organization is a separate and independent one, at liberty to
form and change its order, and articles of
faith, having  no connection with  other
churches, or associated with others only
for counsel, and at liberty to dissolve even
that association at its pleasure, a conveyance to it, or for its use generally, is all
that is needed.  The property is thus put
under the control of a majority of the congregation, and its uses may change with
the changing creed or order of the church.
2. But if the church be independent,
and yet it is designed that the property
conveyed to it, or in trust for it, shall be
devoted to the maintenance and propagation of certain doctrines, or articles of faith,
the deed or will should declare such design explicitly.
3. Or if the purpose be to settle the




SECOND LECTURE.          113
property for the use of a church, or religious society while it remains in connection with and subject to the authority of
some larger ecclesiastical body, the conveyance.should recognize the connection
and the subordination intended.  A  failure to observe these precautions, and to
indicate clearly and distinctively in the
muniments of title to church property the
precise uses which the property is intended
to subserve., has often encouraged division
and given rise to unhappy litigation. And
it cannot be doubted that very many titles
are held for church purposes in full confidence that they secure the teaching of
some particular doctrines, or systems of
faith, or that they are for the benefit of
some particular denomination, or a church
subject to a known higher ecclesiastical
authority, when in fact, they may consist



114         SECOND LECTURE.
ently with law be converted to quite different purposes.
Having thus called your attention to
the various modes in which church property may be held I proceed to consider
how it may be acquired, or rather, what are
the usual evidences of title to it. Upon
this subject little need be said, for, generally, the modes of acquisition do not differ from those by which natural persons,
and corporations, acquire rights to property. The evidence of right or title is not,
however, always found in a deed or a will.
In some cases the law presumes a
grant, when none was ever actually made.
When there has been an actual and continuous occupation by a religious society,
of a lot of ground, for religious uses, without any recognition of right to the lot in




SECOND LECTURE.          I 15
any other person, and when that occupancy has been continued during a period
equal to the statutory period of limitation
in the  State (varying in  the different
States from  seven to twenty-one years),
courts of law sometimes presume that a
grant was made by the former owners to
the occupants, and this presumption may
be conclusive of the right.  Even if not,
the statute itself will protect the continued
enjoyment.  Instances not a few  exist,
especially in the rural districts of the older
States, in which this is the only evidence
that a religious society has, of title to the
church property it occupies. It is applicable not only to the ground upon which a
church edifice may be erected, but also to
privileges on adjoining property, to passage-ways to and from the church, and to
easements necessary and convenient to the




I 6        SECOND LECTURE.
purposes of its enjoyment.  Legal presumptions, recognized both in courts of
law and of equity, are invaluable for giving security to church titles.
Another mode of acquiring church
property is by license from the owner.
In some cases the proprietor of land has
given permission to a religious society, or
church organization, to build a church
edifice upon his property. Such a license
may be either verbal or written. In either
case it may be revoked before the licenses
have done anything under it. But when, in
reliance upon it, they have proceeded and
made expenditures upon the property, in
the erection of a building, it is not in the
power of the owner to withdraw his permission, and resume the possession of the
land. The license executed has become a
contract, and a muniment of right. And




SECOND LECTURE.         117
a license is sometimes presumed from the
conduct of the party who had a right to
give it. Thus if the true owner of a lot of
ground should see a religious society begining to build upon it, under a mistaken
belief of its members that they had a right
there to build and if, with knowledge of
their belief, he should remain silent, the
law would not permit him  to claim the
property after the building was erected.
It would be presumed he had licensed, or
permitted the erection, and, as he did not
speak when he should have spoken, he
would not be permitted to speak afterward.
Closely allied to acquisitions by license
are acquisitions by dedication.  The common law allows the devotion by dedication
of property to religious and charitable
uses, such as for church lots, cemeteries,
and other like purposes. Indeed, an owner




II8         SECOND LECTURE.
of property may give his land for any public use.' This he may do either by parol,
or in writing, and courts of law will protect
the gift. And it is not necessary that the
religious society intended to be benefited
should be in being when the dedication is
made. Whenever afterward it comes into
existence, the  anterior  dedication  will
enure to its benefit, if the society's objects
accord with the purpose of the donor, and
it can be gathered that he contemplated a
use by such a society.
Of the other and more common modes
of acquiring church property, such as by
deed, or by will, by absolute or conditional
grants or devises for a limited time, I need
say nothing, since they are familiar to every
one.  And there is nothing in the acquisition of personal property for church purposes that requires particular notice.




SECOND LECTURE.          II9
Before leaving this branch of my subject I may add that the right of a church
organization to acquire and hold lands for
religious uses, ordinarily carries with it the
right to sell the property thus holden, and
make title therefor to a purchaser.  It
does not, however, in all cases. When real
estate is held under a license or a dedication for a specific religious use, the religious society holding it cannot lawfully
sell it for any other use. Certainly they
they cannot without the consent of the
donor, unless aided by authority given by
the legislature of the State, and I think it
may well be doubted whether such a power
can be conferred by legislative authority.
And in all cases where the power to alienate exists, the conveyance must be made by
the person, or persons, the corporation or the
trustees in whom the legal title is vested.




120         SECOND LECTURE.
I come next to the subject of internal
regulation of religious societies by by-laws.
When such a society is unincorporated, it
generally has articles of association, by
which its elections, its meetings, and the
conduct of its temporal affairs are regulated. Substantial conformity to the requirements of those articles is essential to
the valid transaction of any of its business.
The articles may be changed from time to
time, by the consent of the associates, but
while they exist they are controlling.
When a religious society is incorporated, its charter is its fundamental law,
and that confers upon it power, either expressly or by necessary implication, to
make by-laws for the regulation of its
internal management.  By-laws of such
corporations generally refer to the times
and conduct of meetings of the corpora



SECOND LECTURE.          I21
tors, to the number and duties of the
officers, to the times and mode of conducting the elections, and to the qualifications
of the electors, unless these matters are
regulated by the charter. There are also
many other matters relating to the corporate action, in relation to which by-laws
may be made.  The power of making
by-laws resides only in those in whom it is
vested by the charter; but if that instrument is silent upon the subject, the power
may be exercised by the members of the
corporation at large. It is always a limited
power.  No by-law is of any force which
conflicts with the charter, or with the law
of the land. Nor is any by-law valid which
does not relate to the legitimate purposes
of the corporation. If the charter has prescribed who shall be entitled to vote at
any corporate meeting, the right of such
6




122         SECOND LECTURE.
persons to vote cannot be restricted or
taken away by any by-law. Yet, if the
language of the charter is only negative,
the rule is different. Let me illustrate.
If the charter declares that only members
of the church who have been such twelve
months preceding the election, shall have
a vote in the choice of church officers, it
is lawful to adopt a by-law declaring that
no member of the church whose pew-rent
has been in arrears six months shall be
entitled to a vote. Such a by-law and the
charter are not in conflict with each other.
Very often the charter makes no provision
respecting voters. In such cases, the members of the corporation may determine by
a by-law who may vote, and for what officers.  A  by-law  that only communing
members of the church shall have a voice
in the choice of a minister, or other church




SECOND LECTURE.          123
officers, is good. So is one that allows
both male and female members to vote, or
confines the elective right to one sex.  So
is one that contributors or pew-holders
alone shall be electors. A by-law that all
members of the church, or of the church
and society, may vote, does not extend to
infants, or persons under the age of twentyone years. Neither in civil nor in religious corporations are infants allowed by
the common law to vote, unless such right
is expressly given to them by the charter,
though perhaps, if the charter is silent on
this subject, the right might be conferred
by express words in a by-law. Voting by
proxy is not allowable, unless the charter
permits it. All by-laws lawfully made in
pursuance of the power conferred by the
charter are as binding upon every member
of the corporation as is the charter itself.




SECOND LECTURE.          125
them  as it is held in this country.  In
England, the law of church seats in the
cathedrals, the parish churches, and in the
chapels of ease, is complicated and often
difficult to be understood.  Even  seat
rights in private and proprietary chapels
have frequently been the subjects of controversy.  In the church edifices erected
under the church building acts of parliament (more than twenty in number), seat
rights are regulated by statute, and some
of the regulations are novel.  But to attempt an exhibition of the law governing
seat rights in the different classes of English churches would require much time,
and it would be alien from  my purpose,
which is to speak generally of the law in
this country. I confess some inclination
to refer to the history of the introduction
of pews into churches, for to me it is ex



126         SECOND LECTURE.
tremely interesting.  But I must resist the
temptation.  Let me refer those of you
who have curiosity upon the subject, to
" Heale's Law of Church Seats," published
in London in 1872, where you will find
much that is amusing as well as instructive,
though the book relates almost exclusively
to pews, or seats, in buildings of the English Established Church. In this country
where, as we have seen, the ownership of
church property is generally vested either
in a corporation, or in trustees who hold
for the use of a religious society, or of a
church organization, it may be regarded
as the common rule that pews belong to
the legal owners of the church building.
And the right of an individual holder of a
pew is not, in any just sense, partial ownership of the building itself.  It is not
ownership of the ground on which the




SECOND LECTURE.         127
pew rests. The sale of a pew, as a pew,
conveys no such ownership. The pewholder's right is incorporeal, a mere easement, as the law denominates it, or, at most,
an unfructuary interest; in its nature something like the right one man may have to
pass over the land of another-a privilege
upon the land, but not ownership of it.
The right to a pew being thus limited,
it does not interfere with the power of the
corporation, or of the trustee, to take down
the church and rebuild. The holder of
the pew takes his right, subject to such
changes as the altered circumstances of
the congregation require. His consent is
not necessary to such change, and when
the church edifice is taken down and a
new one is erected in its place, his right is
extinguished. He is not entitled to a pew
in the new building merely because he was




128         SECOND LECTURE.
a pew-holder in the old.  But while his
right remains it is exclusive. He may use
the pew on all occasions when the church
is open; whether for worship, or for any
other purpose. He may, if he will, put a
fastening on the door of his pew, and deny
access to it to all persons other than those
whom  he chooses to admit.  He may
even maintain an action at law against an
intruder.
The mode of acquisition of pew rights
in this country is very simple. It is either
by perpetual grant from the owners of the
church edifice, whoever they may be, or it
is by demise for a limited term. In some
churches the pews are sold, in others they
are let from year to year, and in others
still they are free. Pews in the parish
churches of England are very often held
by prescription, that is, in virtue of the




SECOND LECTURE.         129
fact that the possession has been enjoyed
by the holder, or those to whose right he
has succeeded (using the quaint language
of old judges), "from the time whereof the
memory of man runneth not to the contrary." Other pew rights are appurtenant
to the ownership of landed estates in the
vicinity, and others still belong to the incumbents of certain offices by virtue of
their incumbency.  I know  of no such
titles to pews in this country, and certainly
they are undesirable.
All pew rights are, of course, subject
to such quit-rents, or assessments, as were
stipulated for, or were existing when the
rights were granted, and an action at law
may be maintained against the holder or
occupant for the recovery of those rents.
These rents cannot, however, be raised during the continuance of the holder's right,
6*




130         SECOND LECTURE.
without his consent, unless the power to
raise them was reserved in the grant. It is
not essential to the liability of a pew-holder
for the rent that he has actually occupied
the pew. His holding the right is sufficient
to make. him a debtor for the rent.
Of course when the right to a pew has
been created by a lease for a defined period,
it will terminate at the expiration of that
period, but when the pew has been sold to
a purchaser, his right, unless surrendered,
will continue so long as the church stands
and is used for church purposes. On the
death of the owner, it devolves upon either
his heirs, or legatees, or devisees, or upon
his personal representatives.  Whether in
the event of failure to dispose of it by will
it passes to the heirs, or to the executors or
administrators, depends upon the question
whether by law of the State in which the




SECOND LECTURE.          131
church edifice is situated, pew rights are
real or personal property. This is sometimes determined by statute, but when it
is not, there has been a difference of opinion in the courts. In some of the States
pews are considered real property, as in
Connecticut and Maine.  In such cases
the pew descends to the heir-at-law.  In
other States pews are regarded as personal
property, and on the death of the owners
they vest in his executors or administrators,
unless disposed of by his will. Such is the
law of Massachusetts and New Hampshire,
and I think of most of the States.  In
New York the decisions of the courts have
left the subject in some doubt, and I will
not venture to express an opinion respecting it. It is important to the church, or
religious society, only as it determines who
is responsible for the pew rents accruing




132         SECOND LECTURE.
after the decease of a pew-holder, though
in Pennsylvania it has been decided that
when pews descend to executors, they are
not liable for pew rents accruing after the
death of their testator.  I doubt whether
such would be held to be the law elsewhere.
Thus far, you will have observed, my
remarks have been directed principally to
the law as it affects the property of single
church organizations. A denomination of
Christians, however, consisting of many
church organizations, may own property,
as a single body. It may own a theological seminary, or buildings for the convenience of its benevolent operations, or a
fund for the promotion of its interests.
These and other kinds of property may
belong to it, as a whole; may be acquired
in the same manner, held by the same ten



SECOND LECTURE.          I33
ure, and controlled and regulated by the
same law of trusts and charities.  So there
are benevolent and religious associations,
happily many in number, which are adjutants of the churches. and which receive
and control large amounts of property,
though they are not subordinate to any
church authority. They, too, are protected
in the enjoyment of their property, aided
in its acquisition, and controlled in its disposition by the civil law, by the same law
of charities and trusts which is the shield
and regulator of the humblest church organization.
I have not time to consider fully the
law relating to the powers and duties of
church officers. I mean the officers of a
church as distinguished from the officers of
the corporation, or religious society, that
holds the property. Nor is such a consider



134         SECOND LECTURE.
ation essential to the object I have in view.
The powers and duties of the ministers,
the elders, the deacons, the vestrymen, and
the bishops, are subjects of definition and
regulation rather by ecclesiastical than civil
law. There are, however, a few matters,
relative to the civil rights and duties of ministers as such, that it may be well to notice.
In some of the States, regulations have
been prescribed by statutes respecting the
solemnization of marriage by clergymen, as
well as respecting the registration of such
marriages, and the registration of baptisms
and burials. What these are I do not propose to say. They differ with the statutes
of the several States, and it would require
much time to mention them in detail. But
there are some particulars not affected by
local statutes, to which I may, perhaps not
unprofitably, allude. It has occurred that




SECOND LECTURE.         I35
an unhappy conflict has arisen between
parental authority and the action of a
Christian minister. I may illustrate what
I mean by referring to a real case actually
decided in one of our courts. The circumstances, briefly stated, were these. A Baptist clergyman of good standing was prohibited by a father from administering the
ordinance of Baptism, by immersion, to his
minor daughter, aged seventeen, she having been previously baptized in the Presbyterian Church to which her mother belonged. The clergyman, however, disregarding the express prohibition of the
father, baptized the daughter a few Sabbaths afterward, by immersing her, and
the question was raised whether his act was
not a violation of law. The court decided
that it was, and inflicted a penalty upon
him. The reasons given for the decision




136         SECOND LECTURE.
were that the act of the clergyman was an
interference with the lawful authority of
the father over the child during her minority; that the authority of the father
results from his duties; that he is charged
with the duties of maintenance and educacation; that these duties cannot be performed without authority to command and
enforce obedience; that the duty to educate requires, proper attention to religious
culture, and that, in the discharge of this
duty, it is the clear right of the father to
designate such teachers in morals and religion, as he may think best fitted to give
correct instruction. From this it seemed
to the court to follow that, though a father
cannot force a child to adopt religious
opinions contrary to the dictates of the
child's conscience, if he should come to
the conclusion, the attendance of his child




SECOND LECTURE.           137
upon the ministrations of any particular
religious instructor was not conducive to
its welfare, he might prohibit such attendance; and confine it to such  religious
teachers as he might select, and that any
interference with the exercise of this authority amounted to an invasion of his
legal rights. This decision met some criticism  at the time it was made, but it was
accepted by eminent lawyers and judges,
as well as by others, as a true exposition
of the law.  It is understood to have had
the approval of Chancellor Kent.
It is equally true that masters have a
right to control the religious education of
their apprentices, and direct what religious
services they shall attend. With this right
neither ministers of religion, nor any other
persons, can lawfully interfere.
The question has sometimes been agi



138         SECOND LECTURE.
tated whether a clergyman, when called as
a witness in a court of law, may refuse to
disclose matters which have been confidentially communicated to him  by persons
under his religious teaching. The general
rule in this country is that he cannot.
There are some communications which
the law regards as privileged, and which
the person who has received them is not
at liberty to disclose. Such are those made
by a client to his legal counsel.  But
neither penitential confessions made to a
minister, nor even secrets confided to a
Roman Catholic priest in the confessional,
are considered privileged communications,
which the minister or priest may not be
compelled to reveal. Some modifications
of this rule have, it is true, been made by
statute. A law of the State of New York
enacts that no minister of the Gospel, or




SECOND LECTURE.         139
priest of any denomination whatsoever,
shall be allowed to disclose any confessions
made to him in his professional character,
in the course of discipline enjoined by the
rules or practice of such denomination.
But even under this law, the confession is
privileged only when it has been received
in the course of church discipline. The
general rule elsewhere is as I have stated it.
I have no time to say more. In what
I have said, my object has been to state
generally what I understand to be the rules
of civil law, in this country, applicable to
church polity, discipline, and property. I
have aimed only to gather from the great
mass of decisions of Federal and State
courts, as well as from the statutes of the
States, the conclusions which have been
reached, without endeavoring to state the
reasons which have led to those conclu



140         SECOND LECTURE.
sions. And I have passed unnoticed many
distinctions recognized by the courts, and
important to be understood by every lawyer. I am not speaking to lawyers, or to
those who intend entering the legal profession. I am  addressing those who look
forward to the Christian ministry, and endeavouring to communicate that knowledge
which they ought to possess-a knowledge
of general principles. I am fully aware
that all which I have stated as my understanding of these general principles does
not meet universal acceptance. There is
a want of harmony in the decisions of the
courts of the different States. Doctrines
are advanced by some which are denied
by others. I have sought only to spread
before you those doctrines which, in my
judgment, are supported by a preponderance of authority, and by the soundest




SECOND LECTURE.          141
reasoning. And I think there is manifest
in the action of the numerous courts of
the country a tendency toward greater harmony of decisions upon the subjects we
have been considering than formerly existed. The relation of municipal law to
church polity, discipline, and property, is
becoming better understood; and there is
less conflict of judgment than there was.
I detain you no longer. Fully sensible
as I am that what has been said is not a
full exposition of the subject to which your
attention has been called, and that it will
not make you lawyers, it has, I hope, revealed to you something that you may
hereafter find convenient and useful.