ECCLESIASTICAL LAW IN THE STATE OF NEW YORK. BY MURRAY HOFFMAN. NEW YORK: POTT AND AMERY, 5 & 13 Cooper Union, Fourth Avenue. 1868. Entered according to Act of Congress, iu the year 1868, by MuKRAY Hoffman, in the Clerk's Office of the District Court for the Southern District of New York. RIVERSIDE, CAMBRIDGE: STEREOTYPED AND PRINTED BT H. 0. HOCOHTON ASD COMPANY. • . • ••• .... •.. *.* .> 1 1 « 1 * t *■ « ft • 3V n PREFACE. w § Questions couuected with tlie incorporation of Re- H ligious Societies under the statutes of the State of New ^ York, have come very frequently, of late years, before our ^ courts of justice. These questions are often influenced by ^^ the ecclesiastical system of the church or body, in con- nection with which they arise. An attempt is made in the following pages to set forth, in a convenient form, the "^ statute law, the decisions of courts of justice, and such ecclesiastical regulations as are useful in explaining the positive law and its mode of execution. An historical notice is introduced of all those churches which had a place of any importance in the Colony, before the Revolu- tion. The following table shows the distribution of the sub- jects. OJ TABLE OF CONTENTS. CHAPTER I. PAGE THE CHURCH OF ENGLAND IN THE COLONY • • CHAPTER n. CHARTERS TO CHURCHES OF THE CHURCH OF ENGLAND . 14 CHAPTER in. THE CONSTITUTION OF 1777, ETC. — STATUTES OF Eear to be accurate as to New York. Counselor West gave an opinion in 1724, that such acts did not extend to New York. The Bishop of Hereford had taken the same view ; and Bishop Gibson also.^ There is in Smith's " History of New York," p. 221, an able ex- amination of the subject, in which the Statute of 5th Anne, made upon the union with Scotland, is fully considered. The weight of authority and argument appears to be against the proposition. 1 Journals of Council, vol. ii. Sts. 1698, 1706, 1742. 2 Hoffman's Law of the Church, p. 18. CHAPTER II. CHARTERS TO CHURCHES OF THE CHURCH OF ENGLAND. § 1. Particular Charters. There was no general act or authority in colonial days, under which churches could organize and acquire corporate powers. Special charters were granted by royal governors, as the needs of the Cliurcli appeared to demand them in particular places. The earliest of these was that to Trinity Church in the city of New York in 1G97. There was one to St. Andrew's, Richmond County, in 1713 ; to St. George's, Hempstead, in 1735; to Grace Church, Jamaica, and to St. George's, Flushing, on the 17th June, 1761 ; to St. James', Newtown, on the 9th of September, 1761 ; to St. Peter's, Albany, on the 2d of December, 1762 ; to the Parish Church of Rye (Grace Church), the 19th of December, 1764 ; to Trinity Church of New Rochelle, the 2d of June, 1762; to St. Peter's, Westchester, the 2d of December, 1762; to St. Peter's, in the Manor of Courtlandt, near Peekskill, the 18th of August, 1770 ; to the Church in Poughkeepsie, the 9th of March, 1773. § 2. In a notei I have made a summary of the charter and laws as to Trinity Church, New York. It is needless, I think, to state these, or the questions upon them, in detail. It may be hoped that the matters agitated are finally set- tled. I have but to repeat here that it would have been far better had Trinity Church rested upon the charter, and the act changing her name. Her position and claims were as absolute and extensive under these, as under the Act of 1814 ; and I do not doubt that we should have had them now as- sured by judicial determination in her flivor, had she rested upon them. The Act of 1814, in my judgment, did not strengthen her, and led to aggression, and that before the legislature, where defeat would have seriously injured her. 1 Note I. Charters to Churches of the Church of England. 15 That Act of 1814 has been ably defended.^ It may be sustained fully and mainly upon tlie ground, that it was a declaratory act of what the charter prescribed or allowed. § 3. Protected by Constitution. These church charters were preserved in force by the 36th section of the Constitution of 1777, providing that nothing in such Constitution con- tained should be construed to affect any grant of land with- in this State, made by the authority of the said king, or his predecessors, or to annul any charters to bodies politic by him or them or any of them made prior to that date, (14th of October, 1775). So the 14th section of the Act of April, 1784, chapter 18, renewed in the 12th section of the General Act of April 5th, 1813, recognizes the legality of religious corporations, created under the great seal of the Colony. § 4. Alteration of Name. In many instances, particular acts of the State legislature have been obtained altering the style and name from " in communion with the Church of England as by law established," to " in communion with (or of) the Protestant Episcopal Church in the State of New York." Thus by an Act of the 3d of March, 1789 (chapter 51), the style of St. Peter's in Albany was so changed. By an Act of the 12th of March, 1793 (3 Greenl. 88), a similar change was authorized as to Grace Church, Jamaica, St. George's Church, Flushing, and St. James', Newtown. By an Act of 5th April, 1792 (chapter 46), the same was done as to the church in Poughkeepsie. As to several such charters no such act has been passed. The Church of St. George's, Hempstead, of St. Andrew's, Richmond, and Trinity Church, New Rochelle, are T believe in this position. Some views upon this point are hereafter submitted. The provisions of these charters are in many particulars substantially the same. There are differences, and some of importance, which will be noticed. § 5. St. George's, Hempstead. I take the charter of St. 1 Among others by Judge Redfield of Vermont. Boston, 1858. 16 Ecclesiastical Laio in the State of New York George's Church, Hempstead, as an example, and will endeavor to point out the important variations in other charters. (1.) Preamhle. The petition of Rohert Jeuner, Rector, and Rohert Cornell, and others named, inhabitants of the Parish of Hempstead, in Queens County, to Governor Cosby, was recited, stating that they had lately built a new church in the said parish, and had dedicated it to the service of God, according to the rites and ceremonies of the Church of England, as by law established, by the name of St. George's Church, which church they hold, together with a parsonage house and glebe lands in said parish. That for want of being incorporated, they were not capable of re- ceiving such donations as pious persons might be disposed to give unto them, or of purchasing lands and tenements for the use of such church, or carrying on its affairs, as otherwise they might do. They prayed that for accomplishing these purposes, they and other of the communicants of the said church might be created a body politic and corporate. (2.) Corporation created. It was then ordained, consti- tuted, and declared, etc., that the said Robert Jeuner, John Cornell, etc., etc., and the rest of the communicants of the said church in the Parish of Hempstead aforesaid, be, and they and their successors, communicants of the said church, shall be from time to time, and at all times forever here- after, a body politic and corporate, in deed, fact, and name, by the name of (3.) Title. The Rector and Inhabitants oj the Parish of Hempstead in Queens County, on Long Island, in Communion of the Church of England, as by law establisJied. And them and their successors, communicants of the said church by the name of the rector and inhabitants, etc., etc., {as above), one body politic and corporate, we do erect, make, consti- tute and declare. The usual clause as to perpetual succession, and as to suing and being sued, is inserted. (4.) To take and hold Lands. " They and their successors, Charters to Churches of the Church of England. 17 by the same name, be, and shall forever hereafter be capable and able in the law to take, accept of, acquire and purchase, have, hold, and enjoy in fee forever, or for life or lives, or for years, or in any other manner, messuages, lands, tene- ments, and hereditaments ; and the same to lease or demise for one or more years, or to grant, alien, bargain, sell and dispose of for life or lives, or forever under certain yearly rents ; and also to accei)t of, take, possess and purchase any g'oods, chattels or personal estate, and the same to hire, let, sell or dispose of, at their will and pleasure ; and all this as fully as any other corporation or body politic withiu that part of our kingdom called England, or this our Province of New York, may lawfully do. Provided, that such real es- tate shall not at any one time exceed the yearly rent of two hundred pounds over and above the church and grounds, and the parsonage and glebe land." The grant of a common seal, and to alter, break, and change the same is made. (5.) Rector, Wardens, Vestrymen. " For the better order- ing the affairs of such corporation, there shall be one rector or parochial minister of the Church of England as by law established, duly qualified for the cure of souls, two church- wardens, and a number of vestrvmen from time to time elected as hereafter expressed." (6.) Power in ivJiom vested. " Which vestrymen, or the major part of them, and the two church-wardens, or one of them, together with the rector for the time being, shall apijly themselves to take care for the best disposing, gov- erning, and ordering the general business and affairs of and concerning said church, and of or concerning all such lands, tenements, and real and personal estate as shall or may be acquired as aforesaid." (7.) Tenure of first Wardens, etc. The Rev. Robert Jen- ner, the then rector, was then named and constituted rec- tor during his natural life ; John Cornell and Micah Smith wardens ; William Cornell, etc., to the number of ten ves- trymen, to continue in their offices during their natural 18 Ecclesiastical Law in the State of New York. lives respectively, or until others were duly chosen in their stead." (8.) Call of Vestry and Transaction of Business. " We or- dain and direct, that the rector of the church for the time being, or in his absence by sickness, one church-warden by consent of the rector, may from time to time assemble and call together the said church-wardens or one of them, and vestrymen for the time being, or the greater number of them, to consult, advise, and do the business and affairs of the said church, and to hold vestries for that purpose." (9.) In case of Vacancy, etc. " In case of a vacancy of a rector, or that the rector for the time being should absent himself from his said parish, then, and in either of such cases, during such vacancy or absence, the church-wardens for the time being, or one of them, may call and hold such vestries as the rector might do." Provisions, applicable to the death or removal of the original ten named vestrymen are made, which need not be noticed. (10.) Annual Elections. After the death, removal, or refusal to act, of the vestrvmen and wardens named in the charter, it was provided : " Then and from thenceforth the choice as well of the vestrymen as of the church-wardens of the said church, shall be annual ; and that yearly, once in the year forever hereafter, that is to say, on Thursday in Whitsun-week in every year, at the said church, the com- municants of the said church for the time being, or the major part of them present, shall elect, choose, and appoint two of the communicants of the said church to be church- wardens and six other communicants of the said church to be vestrymen, for the ensuing year. (11.) Tenure of Office. " Which church-wardens and ves- trymen so chosen, and hereafter to be chosen, shall enter immediately u})on their respective offices, from the respec- tive times they shall be so chosen, until other fit persons be respectively elected in their respective places. Powers. " They shall have full power and lawful author- ity to execute and perform their respective offices in as full Charters to Churches of ihe Church of England. 19 and ample mauuer, as any church-wardens or vestrymen in that part of Great Britain called England, or this Prov- ince, have or lawfully may do." (12.) Vacancy, etc. In case of the death, resignation, or removal, or refusal to serve, of a warden or vestryman, it was made lawful for the communicants of the church for the time being, or the major part of them, to proceed in manner aforesaid, and make a new election of one or more of their communicants in the room or place of such offi- cer, etc. (13.) Call of Hectors. " The patronage, advowson, dona- tion, or presentation of and to the said church and parish, after decease or removal of the said Robert Jenner the then rector, or next avoidance thereof, shall appertain and be- long to, and is hereby vested in the church-wardens and vestrymen of Saint George's in the Parish of Hempstead aforesaid for the time being and their successors forever, or the major part of them, whereof one church-warden is always to be one." (14.) Assessment, ^60. The rector or minister for the time being was to have and receive the sum of sixty pounds yearly, to be levied, assessed, collected, and paid by the in- habitants of the precinct or parish of Hempstead in Queens County aforesaid, towards the maintenance provided by the act, for settling a ministry, etc., and the act for the better explaining" thereof. (15.) Clerk, Sexton, etc. The rector, at a vestry or meet- ing, by and with the advice and consent of the major part of the members then present, may nominate and appoint a clerk, sexton, or bell-ringer, to and for the said church. Also, a clerk and messenger, and such other under-officers as they shall stand in need of, to remain in their respective offices so long as the rector, church-wardens, and vestry- men for the time being, or the major part of them, shall see fit. (16.) By-laws. The rector, church-wardens, or one of them, and the vestrymen, or the major part of them in vestry, shall have power from time to time, to make rules 20 Ecclesiastical Laiv in the State of Netv YorJc. and ordinances for the good discipline and weal of the members of the said church and corporation, as they, or the major part of them shall see fit, but not repugnant to the laws of England or of the Province. Such rules, etc, to be entered in a book, or books, to be kept for that purpose. (17.) Confirmation of Title. It proceeded to grant, ratify and confirm unto the said " Rector and inhabitants of the Parish of Hempstead, in communion of the Church of England, as by law established, and their successors," the church and ground on which it stood, and which doth be- long to the same, containing about half an acre of land ; and the parsonage-house and lot commonly known as the parsonage-house lot, in the town of Hempstead aforesaid, now in possession of the said Robert Jenner and his suc- cessors forever, rectors of the said church — to have and to hold the premises unto the said rector, etc. (as above,) to their only proper use and behoof forever. To be holden in fee and common socage of our Manor of East Greenwich in the County of Kent, paying annually on the feast of the Annunciation, at the city of New York, the annual rent of one shilling, current money of the Province. I have marked the various clauses of this charter by num- bers, and proceed to some observations upon them. (1.) It is shown in the preamble of the charter of St. George's Church, Hempstead, that the church had already a rector. Thus the ecclesiastical organization was so far complete. The same is found in the charter of Grace Church, Jamaica. In the charter of St. George's, Flush- ino\ it is recited, that the three churches of Jamaica, Newtown, and Flushing, had but one pastor to officiate among them, and the inconvenience arising from this is stated. The petition is by inhabitants of the particular places respectively. (2.) Members. A very marked feature of this charter is, that the clause which constitutes the corporation is — Rob- ert Jenner, etc., — and the rest of the communicants of the said church in the parish of Hempstead aforesaid, and their successors, communicants of the said church shall be, etc., Charters to Churches of the Church of England. 21 — by the iiaine, etc. lu no other charter that I have seen is this phrase to be fouiul. In general, the language is merely " in comnumion of the Church of England as by law established." This subject is considered hereafter under subdivision 10, " Elections." (3.) Title. The title given in these charters varies con- siderably. That to the church in Hempstead we have seen is, " The Rector and Inhabitants of the said Parish of Hempstead, in Queens County, on Long Island, in commun- ion of the Church of England as by law established." That of Grace Church, Jamaica, " The Rector and Inhabitants of the Parish and Township of Jamaica, in Queens County, in communion with the Church of England," etc. That of St. George's, Flushing, is — " The Inhabitants of the Town- ship of Flushing, in Queens County, in communion of the Church of England as by law established." That of St. Peter's, Westchester, " The Rector and Inhabitants of the borough town of Westchester, in communion, etc. ; " of St, Andrew's, Richmond, " The Minister, Church- Wardens, and Vestrymen of St. Andrew's Church, in the County of Rich- mond ; " of Rye, " The Rector and Inhabitants of the Parish of Rye," etc.; of New Rochelle, " The Minister and Members of Trinity Church, New Rochelle, in the County of Westchester, in communion of," etc. ; of Poughkeepsie, " The Rector and Inhabitants of Poughkeepsie, Dutchess County, in communion," etc. (4.) Power to hold Lands. The clause authorizing the acquisition and holding of real estate and personal property is almost the same in all the charters, with the exception of the limit of annual value, which varies. As to this limitation it is well settled, that it furnishes the rule of value only at the time of the acquisition. If by the course of time and contingencies, the property has increased to any extent, the charter and grant will not be affected. //" they could take by Devise. There is one important question under these charters. Whether the churches so in- corporated before the Revolution, could take real estate by devise ? 22 Ecclesiastical Lmv in the State of New YorJc. There was no Colonial act authorizing devises, nor any act of the State until that of the 3(1 of March, 1787 (1 Green- leaf, 386). It is the received opinion that the Statute of Henry VIII., or Statute of Wills, was in force here. The whole question is examined post, chapter 16, § 4, and an at- tempt made to prove that the Statute of Elizabeth pre- vailed, and hy force of that statute devises were valid, until the Act of March 3d, 1787, our own Statute of Wills. (5-6.) The provisions of this charter contained in subdi- visions 5 and 6 are of great importance. It will be seen, that a call of a vestry meeting, and the transaction of the busi- ness of the church in it, depends upon the rector, or if ab- sent by reason of sickness, then one warden, with the rec- tor's assent, may call a meeting, and perform the business of the church. And again, in case of a vacancy, or, if the rector absent himself from his parish, the acts of the warden and a majority of the vestrymen are valid. It is obvious, that the absence from the parish must be a wilful abandonment of his duty there, or an absence so protracted and unexplained, as to warrant such conclusion. With this qualification, the great principle of the English law of rectorial authority is fully observed. " The minister is not in consideration of law a mere indi- vidual of a vestry. On the contrary, he is always described as the first and as an integral part of the parish. He is de- nominated Presses Ecclesiasticus, Rector Parochice.'^ The par- ish in vestry is described as " The Minister, Church-ward- ens and Parishioners in vestry assembled." With us it would be vestrymen instead of i^i^^^ishwners. His right to preside is undoubted. (Wilson v. Mackmath, 3 Phill. 67.) In The Queen v. Doyly, (4 Perry and Davidson, 58,) it was held that " the president of the vestry (the rector if present) has authority to regulate the proceedings ; to de- cide what they shall be, so as to insure the voters of the parish a reasonable time to vote ; to adjourn the poll if he see fit, and to do all necessary acts, being amenable to a court of justice." Charters to Churches of the Church of E^igland. 23 But under our law fixing" a day for an election, there can be no adjournment to any other day. It may be from one hour to another on the same day. This rule is even more absolutely recognized in the charter of St. Peter's, Westchester : " We do ordain that the said rector, and one of the church-wardens for the time being, together with a majority of the vestrymen of the said church, being met in vestry, shall have power and author- ity, by a majority of their voices, to do, etc., and to direct, order and manage the business of such corporation." The provision in the charter of the church at Rye is similar. In such cases the rector's presence is essential. He has the right to preside, an equal vote, and there are sometimes cases (as hereafter shown), though rare, of a casting vote, iu the sense of a double vote. But there are two chai-ters, perhaps more, which present a marked exception to the English law. The charter of Trinity Church, New Rochelle, after pro- viding that there should be one minister of the Church of England, two church-wardens, and six vestrymen, de- clares : " Which minister and church- wardens, or any two of them, together with the vestrymen, or the major part of them for the time being, shall have, and are hereby vested with, full power and authority to dispose, order and govern the business and affairs of and concerning such church, and concerning all such lands, tenements or hereditaments, real or personal estate, as shall or may be purchased or acquired for the use thereof as aforesaid." And so by another section : " We ordain and direct, that the minister and church-wardens of the said church for the time being, or any two of them, together with the said vestrymen, or the major part of them, shall be, and by these presents are, authorized and empowered, to consult, advise and consider, and by a majority of voices to do, direct and transact the interests, business and affairs of the said church, and to hold vestries for that purpose." So in the case of the charter of St. George's, Flushing. " The minister and church-wardens of the said church for 24 Ecclesiastical Law in the State of New York. the time being", or any two of them, shall and may from time to time, call aud assemble the said minister, church-ward- ens, and vestrymen, or the greater number of them, the said vestrymen ; which said minister and church-wardens, or any two of them, together with the said vestrymen, or the major part of them, are authorized and emiDOwered to consult, advise and consider, and by a majority of voices, to do, manage and transact, and carry on, the business and affairs of the said church, and to hold vestries for that pur- pose." The charter of St. James' Church, Newtown, 9th Septem- ber 1761, is alike in this respect. Thus the minister and church- wardens are put together collectively. Any two of these — therefore two wardens — with a majority of the vestrymen, are competent to hold vestries, and transact business. In the case of a contested election in the church of New Rochelle (1864), the present writer's opinion was given that such was necessarily the meaning of the charter of that church. The royal charters underwent the supervision of the Attorney-General. The lawyers of that day did not use language on such matters loosely and unadvisedly. The deviation from the usual phraseology and the general English rule, must have been intended. I was informed that some of the chief founders of the Episcopal Church at New Rochelle were French Protestants, and this clause of the charter was an offering to their principles, for the pur- pose of securing them to the Church, at the surrender of a true Church rule. (10.) Elections and Qualifications. The charter of St. George's, Hempstead, I have before noticed as peculiar upon the qualification of voters at the annual elections. They are to be " communicants of the said church for the time be- ing." No other qualification is prescribed. If we turn to the 21st Canon of the English Church of 1603, in force when this charter was granted, we may con- clude, that receiving the communion three times in the year preceding, is sufficient. I am not prepared to say that once would not suffice. CJuirters to Churches of the Church of Emjland. 25 It is clear that the voter must be a conimuuicaut of that identical church, within its walls, at its separate altar. A conimuuicaut of a particular church, is a member of such church. Communing in it two or three times a year, aud communing elsewhere as frequently, does not make him a member, aud he cannot be a voter. But this is subject to the qualitication, that communing elsewhere when tempo- rarily absent, would not invalidate his right. It seems to me no question of difficulty can arise as to the qualifications of voters in this church except in the frequent case of a communing in the church for a large portion of the year, and elsewhere for an equal, or nearly equal por- tion. The solution of this question will depend upon the same rules as the decision of the question of inhabitancy, as hereafter fully stated. The substantial inquiry is, which is the real domicile or home. His church communion will follow his civil abode. The position is streugthened by the language used in constituting the corporate body, '■' Communicants of the said church m the j^arisli of Hempstead aforesaid." After careful examination, and some doubt, I think that inhabitancy within the parish is also necessary for the qual- ification of a voter. The doubt arises from the ftict that in the clause as to the electors at the annual election, no term is used, except, " communicants of the said church for the time being," and by the English law there could be a parishioner without residence, as by holding a freehold estate within the parish limits. On the other side the corporators are the rector aud inhabitants of the parish of Hempstead, and clear language must be used to extend the right to vote beyond the corporators. Parishioners may be a larger term than corporators. If this is so, then an inhabitant of the parish of Hemp- stead is, I presume, the same as an inhabitant of the town of Hempstead ; and as to the meaning of this phrase, see post, this subdivision. Of course ownership of, or hiring a pew or seat, without being a communicant, will not suf- fice. 26 Ecclesiastical Law in the State of New YorTc. But in general the charters are similar in this particular to that of St. Andrew's, Richmond. " It shall be lawful for the inhabitants of the said island in communion of the Church of England as by law established, to meet and choose two church-wardens, etc. That of the church at Flush- ing, and at Newtown, are alike, that is, the inhabitants of such towns respectively, in communion, etc. It may be here noticed that an act was passed the 13th day of March, 1843, by which the charter of Grace Church, Jamaica, was amended as follows : " In addition to the per- sons now qualified to vote at the elections, and eligible to the offices hereafter mentioned, it shall be lawful for all other male persons, of full age, of the congregation of Grace Church, in the village and town of Jamaica, in com- munion with the Protestant Episcopal Cburch of tliis State, who shall have belonged to such church or congregation, for the last twelve months preceding such election, and who shall have been baptized in the Episcopal Church, or shall have been received therein, either by the rite of con- firmation, or by receiving the Holy Communion, or by pur- chasing or hiring a pew or seat in said church, or by some joint act of the parties and the rector, whereby they have attached themselves to the Protestant Episcopal Church, at any election for wardens and vestrymen of said church, to vote for and be eligible as such wardens and vestry- men." We have then two material questions to consider under these colonial charters, as to voters. What is the interpre- tation of inhabitant of the town or township, and what is the sense of being " in communion with the Church of England," where the name has not been changed ; and of, " in communion with the Protestant Episcopal Church, in the State of New York," where it has been. Inliahitant. Inhabitancy is a term of large and not easily defined meaning. It cannot be said to be strictly synony- mous with domicile. It may be in one place when the domicile either of birth or adoption has been in another and has not been lost. It may at least be said, that a fixed Charters to Churches of the Church of England. 27 residence, a personal dwelling in a place, is an essential element. This would not be inconsistent with temporary absences for business or pleasure ; but the return to the abode, and the animus morandi in the place, enter into and form an essential part of the meaning.^ The Incola of the Latin is the Parochias of the Greek ; and Caius defines Incolam to be the place where one estab- lishes his abode [donikiUum). Domat includes in the term personal residence, the attendance upon religious services on festival days, the bearing a part in the public charges, and a sharing public privileges. (" Civil Law," vol. ii. p. 485. IV.) " A mere lodger," says Lord Hardwicke, " cannot be said to be an inhabitant." (Cases Temp. Hard. 308.) In The Attorney-General v. Parker (3 Atk. 376), the language of a deed was, " The Parishioners and Inhabitants of Clerkenwell." " Parishioners," said Lord Hardwicke, " takes in not only iuhabitauts of the parish, but occupiers of lands that pay rates and duties, though not residents. Inhabitants is a still larger word, and takes in housekeep- ers, as for instance, those who have gained a settlement, and so become inhabitants. Usage may be resorted to, to construe ancient grants. Contemporaneous exposition is the best way to go by." The custom was proven of admitting all householders to vote. In The Attorney-General v. Davy (2 Atkyn's 212), the case was this. By a charter of Edward VI. twelve persons were incorporated to elect a chaplain of the church at Kir- ton, and three of them were empowered to choose a chap- lain for the church of Sanford within the parish of Kirton, W'itli the consent and approbation of the major part of the inhabitants of Sanford. As reported in Atkyn's, the only point decided was, that two of the three persons could do the corporate act. But in The Attorney-General v. Parker, {ante,) his lordship states, that under this charter he had 1 Bouvier's Laiv Did. in verbo, Frost v. Wisbie, 19 "Wendell, 11 ; Bartlett v. The City of New York, 5 Sandf. Supr. Ct. Reps. 44 ; Matter of Wragby, 8 Wendell, 134 ; Isham v. Gibbons, 1 Bradford, 69. 28 Ecclesiastical Laiv in the State of New York. held that inlmhitatits ought to be restrained to persons paying scot and lot. Lord Eldon has spoken of the uncer- tainty of this phrase, and its different meaning's (10 Vesey's Rep. 339). If we look into the law dictionaries, we find, that at least this is clear, that it comprises a contribution in value to some parish, town, or borough objects. In Rex V. AUard (4 Barn. & Cress. 772), it is said, that the term varies in its import, according to the subject to which it is applied. A non-resident occupier of lands is not an inhabitant. The ca.se of The King v. Davie {6 Adol. & Ellis, 374), is important. A charter of Edward VI. granted that the in- habitants of the ville of S. within the parish of C. should have a chapel for such inhabitants, with a chaplain to be paid out of the profits of the vicarage of C, and that they -should elect chapel wardens. That certain governors, ap- pointed in the mode prescribed, with the assent of a major- ity of the inhabitants of the said ville, should nominate and appoint the chaplains. Upon a nomination and notice to the inhabitants to meet, for the purpose of assenting- or dis- senting, the resident payers of church and poor rates were allowed to vote. Some persons not rated tendered votes. Proof was given of the course in two previous elections in 1771 and 1814, and evidence of aged persons, as to the usage being to admit only those who paid rates. It was held, that from the text of the charter and usage, the term inhabitants might be construed to be limited to the partic- ular class. In some charters a power to vote or assess for church re- pairs, etc., was conferred.^ And some of these authorities would indicate the sense in which the term may have been used, to be resident rate-payers. But this right may be treated as surrendered or super- seded. Indeed it was doubtful if a charter alone could con- fer this power, which is a power in substance of taxation. We are led back to other definitions. It may be safely stated that a mere lodger or sojourner for a time, M^thout ^ Trinity Church, Reformed Dutch Church, and a few others. Charters to Churches of the Church of England. 29 the indication of the animus morandi, the intent to make it a home, is not enouj^h. A permanent abode and subjection to public taxes and duties is enough. There nuiy be cases of difficulty between these two points. It will be remem- bered that if votes are illegally admitted or rejected, it will only invalidate the election, when a different result would have been reached. In Ennes v. Smith, 14 Howard's U. S. Rep. 400, it is said, " There must be actual residence within the place, with the intention that it is to be permanent." Towns. The charters quite generally require the party to be an inhabitant of a particular designated town or township. These towns or townships in many cases, particularly on Long Island, were constituted by Dutch patents, and are unchanged in some cases to this day. Bolton's " History of Long Island " and Broadhead's " History of New York " af- ford information on this point. The boundaries of the towns are settled by acts of the legislature. They are defined in the laws of 1801, and the Revised Statutes (vol. iii.) con- tain them fullv. It may be observed that the limits would be the same as the limits at the date of the charters respectively, whether subsequently changed or not. In Communion, etc. What is the sense of being in com- munion of or with the Church of England ? First, it is to be examined as to charters where the title has not been changed, but remains as it was in the charter. The communion of the Church of England, in the mere ecclesiastical sense — the union or identity of faith, worshi]), orders, and observances, is not touched or varied by anything in our Revolution, our Constitution, or our Laws. The ex- ceptions are few, and are as follows, or of the same nature. Whatever is inconsistent with the Constitution of 1777, or the laws of 1784 connected with a supremacy of such Church, or the power of the Bishop of London within the limits of the State, is abrogated. But if exclusively confined to mere spiritual ecclesiastical matters, a church might be 30 Ecclesiastical Law in the State of New York. incorporated to-morrow, under our law, by the name of St. James, in the city of New York, in communion of the Church of England. But again, the Protestant Episcopal Church is the suc- cessor of the Church of England. It is very important to understand this proposition. When any such chartered church has allied itself with the Protestant Episcopal Church of the United States, by uniting in the Diocesan Convention, it accedes to the ex- plicit declaration of that Church, " that it has not intended to depart from the Church of England in any essential point of doctrine, discipline, or worship, or further than local cir- cumstances require." So the avowal and admission of each such church, and of each member of the same, is clearly, that the Protestant Episcopal Church is in communion of the Church of England ; is the successor of such church, varied in some matters. A court of justice would act upon such an admission and recognition. Some authorities may be usefully noticed bearing upon this point. In Mason v. Mulcater (6 Wheatou, 454), it was decided, — 1. That by the law in Virginia prior to the Revolution, each parish was authorized to elect a vestry, twelve persons, to manag-e the parochial aflfairs ; and however numerous might be the churches in the parish, the same vestry had charge of them all. There were two churches within the parish of Fairfax : the Church of Alexandria and the Falls Church ; but they were under one rector and one vestry. In 1819, a vestry was chosen by persons professing to belong to the Falls Church, and to that portion of the parish of Fairfax not included within the District of Columbia. 2. Before the Revolution, the Episcopal Church was the established church in Virginia, and all the parishioners were liable to be rated for parish taxes, and were entitled to vote in the choice of the vestry. But the Church estab- lishment fell with the Revolution, and the compulsory power of taxation ceased ; and as no person could be compelled to worship in the Episcopal Church, or pay taxes for its sup- Charters to ChurcJies of the Church of England. 31 port, the parishioners of the Episcopal Church, in the ecclesiastical sense of the term, afterwards consisted only of the Episcopal contributors and members. 3. The Statute of 1786, chap. 12, saved tlie management of their property and regulation of their discipline, according to the rules of their own sect, to all religious societies. By the Canons of the Episcopal Church, subsequently passed, the right to elect vestries is confined to the freeholders and housekeepers who are members of the Protestant Episcopal Church within the parish, and regularly contribute towards the support of the minister, and to the common exigencies of the Church within the parish. 4. That the Episcopal Church at Alexandria then known as Christ Church, was the regular vestry in succession of the parish of Fairfax; and in connection with the minister, had the care and management of the temporalities. A sale of church-lands, with the assent of the minister, under a judgment of the court, conveyed a good title. In The Town of Pawlett v. Clark (9 Cranch 292), Justice Story says : " The Church of England, so familiar in our laws and judicial treatises, is nothing more than a compendious expression for the religious establishment of the realm, con- sidered in the aggregate. In this sense it is said to have peculiar rights and privileges, not as a corporation, but as an ecclesiastical institution." So it is used in Magna Charta, chapter 1, where it is declared, Ecclesia Anglicana libera sit, and haheat omnia jura integra et Ubertates suis illwsas. And it was held, that where there was a grant of land, in part for the use of the Church of England, an Episcopal church erected by the Crown before the Revolution, or by the State since, would have been entitled to take. But there being none such, the land was at the disposal of the State, and a grant to a tow^n was valid. Considering that the phrase " in communion of the Church of England," where the title of a church is un- changed, is the same for the matters now treated of, as " in communion of the Protestant Episcopal Church," the question is, Wliat is the sense and extent of the term ? 32 Ecclesiastical Latv in the State of Netv York. Of course the actual reception of the Sacrament is such communion. This means reception in the parish church of the place of which the persons are inhabitants, or its chapels. B}^ Canons 21 and 22 of 1603 the Holy Commun- ion was to he administered in every parish church and chapel, so that each parishioner niig-ht communicate thrice in every year ; and every lay person was bound to receive the communion thrice in each year. Canon 27 strictly prescribes the reception in the communicant's own parish church. But I apprehend this is not the exclusive sense. Some- thing short of this, will place a person in communion. The Prayer-Book uses the phrase " in communion of the Catholic Church." Stillingfleet calls communion " a union in the common worship of a church." And Calvin, after speaking of a church retaining the Word of God and use of sacraments, says : " It is a dangerous temptation to think of separating from such a church, the communion whereof is never to he rejected, so long as it continues the true use of the Word and Sacraments." (Inst. Lib. 4, cap. 10.) There are several articles of the Church of England, declaring that for certain offenses, the guilty party shall be excommunicated ipso facto. For example, — "Whoever shall affirm that the form of God's worship established by law, and contained in the Book of Common Prayer, is a cor- rupt or unlawful worship, or contain eth anything con- trary to the scripture, shall be so excommunicated." Ar- ticle 4. Now to hold and affirm the converse of what justifies excommunication, would establish communion. An ex- pressed adhesion to the doctrines and order of the Prayer- Book would so far be sufficient. Excommunication, we are to remember, was not merely exclusion from the Holy Communion, which was the lesser kind, Ijut also absolute expulsion from the Church, a limi- nihufi mcrai matris ecchdcB, which was the greater. (Bishop Tomline, Spelman's Glossary in verho.) Conformity, as defined in the English law, may be com- Charters to Churches of the Church of England. 33 inimion, in the sense of that law. Conformity to our own worship, order, constitution, and canons, proven by open avowal or acts of plain adhesion, may be enough in our Church. Again, in the ministration of baptism in our own and in the English Book of Common Prayer, thanks are given that the baptized child is incorporated into the Holy Church; and in the case of adults, that he is grafted into the body of Christ's Church." Clearly both the child and the adult are thus in communion of the Church, and without par- taking of the Holy Eucharist. Confirmation is communion in the sense we are discussing ; but where confirmation has been given upon one baptized according to the order of the Church, it adds nothing to the qualification. While the theological meaning may thus be satisfied, something more is, I apprehend, included. The union or communion must be evinced by an outward act. Attend- ance upon the public worship was such an act. This was enjoined to be at the parish church or chapel by the Stat- ute of 5 and 6 Edward VI., by that of 1 Elizabeth, cap. 2, and by the 9th Canon of 1603. The Act of 81 George III. continued the former acts in force, except as to persons who came within the Toleration Acts of 1 Wilham and Mary. Attendance at a customary chapel within the parish was a compliance with these requisitions. Another question arises for consideration. Lay baptism, as it is termed, cannot of itself be the entering into com- munion with the Church. It is not being baptized therein. But the communion may be formed, notwithstanding this, though not by it. The communion, I presume, may lawfully be adminis- tered to those who have received a lay baptism. There is also authority to prove that confirmation may be admin- istered upon such baptism. By a clause of the 15th Canon of 1798 of the duty of ministers to keep a register, and which clause remained in force until 1832, it was provided, " And no minister shall 34 Ecclesiastical Law in the State of New York. place on the said list the names of any persons except those who, on due inquiry, he shall find to have been baptized in this Church, or who, having been otherwise baptized, shall have been received into this Church, either by the holy rite of confirmation, or by receiving the holy communion, or by some other joint act of the parties and of a minister of this Church, whereby such persons shall have attached them- selves to the same." (See Wheatley's Book of Common Prayer, p. 394.) Chapels of Ease. There is a power attached to a parochial church of importance. It is the right to establish chapels of ease, as they are termed in the English law. Such chap- els arose from the increase of the worshipers beyond what the parish church could support, or for the convenience of parishioners residing at a great distance from it. The theory of such chapels was subordination to the mother church, shown by the duty of resorting to it for baptism, the com- munion, marriages, and burials. They were also bound to account to the rector for all oblations, fruits, and tithes, and by attending the parish church on certain holy days. The curate was generally appointed by the rector, who could officiate himself whenever he chose. The support of the curate and chapel fell upon the mother church. Modifica- tions of these rules arose by license or prescription. ^ For example in Line v. Harris (1 Lee's Rep. 146), the general rule that the nomination to the curacy belonged to the incumbent was recognized, and an exception was established by custom and license. (Burns' Ecc. Law, ed. 1842, vol. i. p'. 296.) The chapels of St. George and St. Paul, erected in the city of New York, and the chapel at Factoryville in Rich- mond County, were chapels of this character. No doubt there were others. They were under the rector of the parish church, who employed ministers as assistants or not, accord- ing to circumstances. They had no independent minister; but the right to baptize and administer the communion was attached to them. They were supported partly by the 1 Gibson's Codex, p. 292. Charters ig Churches of the Church of England. 35 parent church, partly by contributions of the worshipers in them. Chapels of this nature did not cease to be chapels of ease by acquiring the right of administering the sac- craments. The consent of the ordinary, the patron, and the incum- bent was necessary for their erection. The vestry under the charters answer to the patron. Patronage and advow- son was expressly conferred upon them. The incumbent was the rector. The Governor had the power of induction, and this involved the lesser authority, and made him the ordinary for such purposes. But the worshipers in these chapels were as much mem- bers of the parish church as the worshipers there. In the case of a contested election in St. Andrew's Church, Rich- mond County (1857), the writer's opinion was given that the attendants upon a chapel erected by that church, not sep- arately organized or incorporated, were, under the charter, as fully entitled to vote as the worshipers at the parish church. Parochial Chapels. But there was also known to the English ecclesiastical law, what were termed parochial churches or chapels. They possessed the privileges of bap- tism and sepulture, a separate minister, and generally a separate endowment, often from the parish church. The assent of the ordinary, the patron, and incumbent was here also required. They could be established by prescription, where nothing was shown to repel the presumption of a deed. I refer to the cases of The Attorney-General v. Mower- ton, 2 Vesey sen. 26 ; Morysey v. Hillcoat, 2 Hagg. Ecc. Rep. 30; Dent v. Rob, 1 Young & Coll. 1. The case of Bateman v. Cox (7 Bro. Pari. Cases, 59, Dub- lin Ed.), deserves particular notice. The peculiar or ancient parish of the Church of Dorchester, being very extensive, with many villages or hamlets within it, remote from the mother church, occasioned the erection of many chapels within its peculiar rectory, and subsequent to the division of the dioceses into parochial cures and the establishment of tithes in the kingdom, some of these chapels were inde- 36 Ecclesiastical Latv in the State of New York. pendeut chapels, endowed with a revenue in perpetuity for maintenance of a priest to perform divine service, and for the better accommodation of the inhabitants. They were allowed the privileges of sacraments and burials, and other parochial rights ; and presentation being made of some of them by their founder or endower, became from that time presentative, and institution was practiced and allowed. Others, through the presentation of their patrons or common reputation, had acquired the character of parish churches, and the hamlets of distinct parishes. The one in question had, besides, the characteristics of a parish church, in having baptisms and sepulture. There was no proof of any subordination to Fort Balden as a mother church, no right to seats there, no contributing to its repairs, no resorting thither on stated days, no obla- tions paid over, no oath of obedience to the rector or vicar, as required by ancient canons.^ " The Capella Parochialis, as it is called by Hobart, has be- longing to it all sorts of parochial rights, as clerks, ward- ens, etc. ; all rights of performing divine service, baptism, sepulture, etc. ; which is very strong evidence itself that this is not barely a chapel of ease to the parish to which it belongs, but stands on its own foundation." (Lord Hard- wicke in Attorney-General v. Mowerton, 2 Vesey sen. 426.) The assent of the ordinary, the incumbent, and patron was necessary for the establishment of such churches. The patron was the vestry, the incumbent of course the rector, and the ordinary for these purposes w^as the Governor. The admission of ministers and establishment of churches was vested in him. At present, the consent of the bishop would be necessary for the ecclesiastical organization of a separate church of this nature, as well as of the vestry and rector. They may becojne incorporated of course under the general act. These separated churches or chapels, as they possessed entire independence of the mother church, and were freed 1 See this oath, 1 Burns' Ecc. Law, 303 ; Constitution of Archbishop Winchester. Charters to Churches of the Church of Eiu/land. 37 from all duty to it and from its supervision, so they lost all claim to its privileges, franchises, or emoluments, and all voice in its g-overnment. This is shown by the cases before cited, and by The Attorney-General v. St. Cross Hospital (38 Law & Eq. Rep. 500). It would necessarily result from separation and independence, without any authority. These churches then were parochial churches, because they were Avithin the parish limits, yet entirely disconnected and independent. So fully does this system continue, that by an Act of 1 and 2 Victoria (chapter 107), a parish may be divided into separate parishes, or into district parishes, or chapelries. The boundaries were to be fixed and enrolled in chancery, and in the registry of the diocese. Guided by these principles, we are able to meet most of the questions which may arise as to churches separately organized and incorporated within the limit of a parish created by Royal Charter. And no point can be more clear than this, that the rig'ht to vote at elections of wardens and vestrymen, and every right of participation in the management of the affairs of the Mother Church, is lost and voluntarily surrendered. To belong at the same time to two independent organized incorporated churches, is an impossibility. We have before noticed some rules applicable to cases of doubt. If the person's attendance is about equal in the city and in the country, the rule which indicates his domicile would de- termine his place for voting. Voting at one place clearly would debar voting* at another. In the case of St. Andrew's Church, Richmond, where the charter as before noticed made the whole island the parish, several separate churches had been organized and incorpo- rated. In 1864 the opinion of the present writer was given, that persons were not entitled to a vote at the parish church of St. Andrew's, who regularly belonged to such independ- ent churches. Notice. In several charters there is a clause directing notice to be given in a particular manner of the annual election. This must be carefully attended to. Where there 38 Ecclesiastical Latv in the State of New York. is no such provision, an election would not be invalid with- out it, the members being- bound to know the day estab- lished by the charter. A good custom, however, prevails of giving a notice on the Sunday previous. Tinie of Polling. The period for which the poll should be kept open is to be regulated by the convenience and num- ber of votes to be taken. Custom here has a great influence. The rule has been stated in several cases that reasonable time must be allowed for the taking all the votes proffered. It would be illegal to close the election while voters are ready and desirous of voting. If there is a custom to con- clude the poll at a certain time, that being a reasonable time, the voters must tender their votes within it. See Burns, vol. i. p. 15. Where the directors, in ordering* an election, limited the time of keeping the polls open to one hour, it was held, that the inspectors could still extend the time in their discretion to accommodate voters. (Matter of the Mohawk R. R. Co., 19 Wendell, 133. See Rex v. Mayor of Carnnethen, Maule & Selwyn, 697.) Class from which to he Chosen. In almost every one of these charters there is a designation of the class from which the choice is to be made. In the case of the Hempstead charter it is " the communicants of the said church." In the charter of St. George's, Flushing, and others, it is " of their members, etc." The persons capable of holding the office must be of such specified class, and none others are eligible. (11.) Tenure. I believe that invariably the tenure of office is for the ensuing year, or until others be chosen in their stead. See this subject examined, post, chapter 4, §18. Quorum anil Majority. Under these charters the common- law rule prevails. All being convened, by notice, or from presumed knowledge of the appointed day, when fixed by charter or by-law, they who attend form a quorum, and a majority of that quorum decide the (questions. But in general the presence of one warden is essential. Charters to ChurcJies of the Church of England. 39 (12.) Vacancy. Where a vacancy occurs, by death, etc., the coramunicauts in the church at Hempstead, and those entitled to vote in other cases, are to supply it. Where the charter does not specify the mode of holding' such election, it can be fixed by a by-law of the members, and, as I think, by the vestry. (13.) The patronage, advowson, presentation, is in effect the call and settlement of a rector, as now known in our law, and is vested in all the charters in the wardens and vestrymen. The important questions of the effect of a call with or without institution, as to property or income, dura- tion of the connection, and other points, are examined post, chapter 4, § 24, and chapter 20. It is sufficient to say here, that so far as the general legislation of the Church affects these questions, the ministers of chartered churches are in the same position as those attached to churches organized under the General Incorporation Act. (14.) The assessment of <£60, sanctioned by the Act of 1693, was abolished in 1784. See j90si, chapter 3, § 2. (15.) The power of appointing subordinate officers is common to all the charters. See post, chapter 16, § 7. (16.) The authority to make rules and ordinances is also found in all these charters. See, as to this power, post, chapter 16, § 6. CHAPTER III. THE CONSTITUTION OF 1777, ETC. — STATUTES OF EQUAL- ITY. — THE GENERAL ACT OF APRIL 6, 1784. § 1. Constitution of 1777. The 35th Article of the Con- stitution of 1777, after recognizing as the law of the State such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the Colony of New York, as together formed the law of such Colony, on the 19th of April, 1775, ordained, " That all such parts of the common kw, and all such of the said statutes and acts aforesaid or parts thereof as may he construed to establish or maintain any particular denomination of Christians or their ministers, or concern the allegiance heretofore yielded to, and the supremacy, sovereignty, government, or exercise by, the King of Great Britain, and his predecessors over the Col- ony of New York, and its inhabitants, or are repugnant to this Constitution, be, and they are hereby, abrogated and repealed." So in the 30th Article it was ordained, that the free ex- ercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed within this State to all mankind. By the 31st Article, it was declared, " Whereas the min- isters of the gospel are by their profession dedicated to the service of God, and the cure of souls, and ought not to be diverted from the great duties of their function: There- fore, no minister of the gospel, or priest of any denomi- nation whatsoever, shall be eligible to or capable of holding any civil or military office within this State." The 36th Article had this clause : that " Nothing in the Constitution of 1777. — Statutes, etc. 41 Constitution contained should be construed to aflfect any grants of lands within the State, made by the authority of the King or his predecessors, or to annul any charters to bodies politic, by him or them, or any of them, made prior to the 14th of October 1775." § 2. Ad of Apnl 6, 1784. On the 6th of April, 1784 (Laws, chapter 18), an act was passed to enable all the re- ligious denominations in the State to appoint trustees, who should be a body corporate for the purpose of taking care of the temporalities of their respective congregations, and for other purposes therein mentioned." The preamble is as follows: "Whereas by the 38th article of the Constitution of the State of New York, it is ordained that the free exercise and enjoyment of religious profession and worship without discrimination or preference should forever thereafter be allowed within the State to all mankind. And whereas many of the churches, congreg'a- tions, and religious societies in this State (while it was a colony) have been put to great difficulties to support the public worship of God, by reason of the illiberal and partial distribution of charters of incorporation to religious soci- eties, whereby many charitable and well-disposed persons have been prevented from contributing to the support of religion for want of proper persons authorized by law to take charge of their pious donations, and many estates pur- chased and given to the support of religious societies, now rest in private hands, to the great insecurity of the societies for whose benefit they were purchased or given. And whereas it is the duty of all free and virtuous governments to encourage virtue and religion, and to enable every re- ligious denomination for the decent and honorable support of divine worship agreeable to the dictates of conscience and sound judgment, therefore," etc. This act formed the model of all subsequent legislation, and has been superseded by such. It is only useful to notice a few of its provisions. The distinction between the qualifications of voters at the first and at subsequent elections was made. For the first 42 Ecclesiastical Law in the State of New York. election, every male person, who had statedly worshiped with the congregation, and heen considered as belonging to it, was entitled to vote. But for subsequent elections, he must have been a stated attendant on divine worship in said church or congregation for one year before such election, and must have contributed to the support of the church according to the usages and customs thereof. A register of such attendants was directed to be kept. By the 9th section, " Nothing in the act contained was to be construed to alter or change the religious constitutions or governments of either of the said churches, congrega- tions, or societies, so far as respects or in any wise concerns the doctrine, discipline, or worship thereof." And by the 14th section, " The religious corporations created by letters patent under the great seal of the Col- ony of New York, were recognized in allowing them to hold lands of the yearly value of twelve hundred pounds, although restricted by their charter to a less sum." § 3. Act of 17th Aiwil 1784. Most of the sections of the Act of the 17th of April 1784 (chapter 23), relate to Trinity Church only. But by the 6th section, to remove all doubts as to the continuance and effect of the acts spec- ified, it was expressly enacted, that the Act of the 27th September 1693, that of the 27th June 1704, of the 4th of August 1705, of the 27th July 1721, of the 21st September 1744, certain parts of an Act of the 29th November 1745, which do grant certain emoluments and privileges to the Episcopal Church, or that mode of religious worship com- monly called the Church of England, in the city and county of New York, and in the counties of Richmond, Queens, and Westchester, and do establish and maintain the min- isters of that denomination within the said counties, and do also declare or imply a preeminence or distinction of the said Episcopal Church or Church of England over all other churches and other religious denominations, be absolutely abrogated and repealed. § 4. Act of 20th April 1784. Again by an Act of the 20th of April 1784 (chapter 38), it was recited : — ComtUution of 1777. — Statutes, etc. 43 C( Whereas by virtue of sundry acts hereinafter enumer- ated, passed by the legishxture of the late Colony of New York, the inhabitants of the city and county of New York, county of Richmond, Westchester, and Queens counties, without distinction, have for many years been compelled to pay taxes for the support of the Episcopal Church in the said counties, contrary to the principles of justice and sound policy. And whereas by color of such laws, it has been pretended that the Episcopal churches were established in such counties, and claims in consequence thereof, to have been set up, and prosecutions commenced injurious to the rights and privileges of other religious denominations. And whereas, although the spirit of the said laws is repugnant to the Constitution of this State, it appears incumbent ou the legislature, in order to remove eveiy ground of uneasi- ness, that the said law should be repealed," etc. Then the statute proceeded to repeal in terms the Acts of 1693, of 1705, of 1721, of 1745, of 1755, of 1756, of the 20th Januaiy 1770, of the 31st January 1775, and the Act against Jesuits and Popish priests of July 31, 1700. § 5. Constitution of 1822. The fourteenth section of the 7th Article of the Constitution of 1822 was the same as the 36th Article of that of 1777, cited {ante, § 1). The 18th Article of the Constitution of 1846 is similar. " Thus it is manifest that all the royal charters incorpor- ating churches, and all the franchises and powers they con- fer are recognized and in full validity at this hour, excepting such provisions in them as may declare or involve the exer- cise within the State of any authority by a foreign prince or potentate, or imply any supremacy in a particular church. " Grants of land to them, whether by private individuals or by the Crown, for the purposes of their creation, and without conditions or reservations, are beyond recall or control. Incorporations of churches in communion of that of England in the colonies, were regarded the same as col- legiate and academical incorporations, as being of a private and independent character, the same, precisely, as to their private character, as would be the incorporation of a Pres- byterian or Lutheran congregation." (Judge Redfield.) CHAPTER IV. THE PROTESTANT EPISCOPAL CHURCH. § 1. Ad of April 1784. The Act of April 6th, 1784, be- fore referred to, was general in its provisions, prescribing the same regulations for the incorporation of churches of every denomination. It was found unsuitable to the system of the Episcopal Church, and on the 17th of March, 1795 (Laws, chapter 25), an act was obtained, entitled " An Act for the Relief of the Protestant Episcopal Church in the State of New York." Act of 1795. The preamble is as follows : " Whereas the Protestant Episcopal Church in this State, by the peti- tion of the standing" committee of its convention, hath rep- resented that the act entitled, ' An Act to enable,' etc., passed 6th of April, 1784, directs a mode of incorporation which exposes it to a variety of difficulties, leaving the cor- porations not incorporated by charter to the alternative of foregoing the benefit of incorporation, or submitting' to an entire alteration and subversion of the usual and peculiar government of the respective congregations of said Church. For remedy thereof," etc. The provisions enacted were so nearly the same as those now in force under the Act of 1813, that I shall only notice a few variations of some significance, and illustrative of the present law. The clause as to the constitution of a vestry is the same, but there is added : " Which vestry shall be, to all intents and purposes, a body corporate, and enjoy and exercise all the power, rights, and privileges granted to trustees by the 4th and 6th sections of the act entitled, ' An Act, etc' " (the Act of April 6th, 1784.) The Protestant Episcoiml Church. 45 The present act makes the trustees and their successors the hody corporate. Again, section 4 declared the qualification of voters thus : " That the persons qualified to vote at all such elections shall be such male adult persons as shall have belonged to such church or congregation for the last twelve months at least, i)receding such election. Provided ahmys, that they shall have been baptized in the Episcopal Church, or shall have been received into the said church, either by the rite of confirmation, or by receiving the Holy Communion, or by purchasing or hiring a pew or seat in such church, or by some other joint act of the parties and of the rector, whereby they shall have attached themselves to the Prot- estant Episcopal Church." The first section of the General Act of the 27tli of March 1801 (Laws, chap. 79), is a transcript of this Act of 1795, with a few variations, and is copied verbatim, in the first section of the existing Act of 1813. § 2. First Election, etc. " It shall be lawful for the male persons of full age belonging to any church, congregation, or religious society, in which divine service shall be celebrated according to the rites of the Protestant Episcopal Church in this State, and not already incorporated, to meet for the purpose of incorporating themselves, and of electing church- wardens and vestrymen, and to proceed to make such election and to effect such incorporation, in like manner as by the first section of the act hereby amended, is authorized to be done by persons possessing the qualifications therein specified." i Every other qualification prescribed in the Act of 1813, amended by this Act of 1819, is dispensed with for the first election. Twelve months' union with the church or congre- gation was required by the Act of 1813. No time is now prescribed. But as notice of the meeting must be given for two preceding Sundays, the belonging to the church during that period may be requisite. 1 Act of March 5th, 1819, § 1, to amend the act entitled, "An Act to pro vide for the Incorporation of Religious Societies." Laws of 1819, chap. 33. 46 EcclesiasUcal Law in the State of Neiv York. The qualifications are merely being a male of fall ag-e, and beloug-iug to a congregation, in which worship is celebrated according to the rites of the Church. The use of the services according to the Book of Common Prayer would satisfy this last provision. What is the meaning of the phrase " belonging to any church ? " etc. The phrase is not " belonging to the Prot- estant Episcopal Church," nor, " in communion with the Protestant Episcopal Church ; " it is, " belonging to a church or congregation, in which divine services are held, according to the rites of such Church." The statute itself makes a discrimination. It renders valid an incorporation by persons not possessing all the qualifications specified in the Act of 1813. And then it declares, that no person not possessing those qualifications (enumerated in the Act of 1813), shall be permitted to vote at any subsequent election. (Sect. 1, Act of 1819.) It seems an inevitable consequence, that the Statute of 1819 meant to dispense, at this first election, not merely with the prior connection of twelve months, but with the other qualifications specified, such as baptism, confirmation, or reception of the Holy Communion, or purchasing or hiring a pew or seat, A usual attendance seems enough. This is strengthened by reference to the Act of 1813 it- self. The phrase, " who shall have belonged to such church or congregation," is used distinctively from the phrase of " being in communion with the Protestant Episcopal Church," and the other enumerated qualifications. In the discussions upon the proposed changes in the Act of Incorporation in the Convention of New York, it was stated, that the change in 1819 was made as matter of pol- icy, to spread the Church in new regions. If the persons had evinced a disposition and preference for this Church, even for a short period, it was expedient to bring them together and increase, by uniting, their attachment and energy. They would soon be led to a more decided and consistent faith. The standing committee of the Western Diocese strongly The Protestant Episcopal Church. 47 urged the expediency of the amendment of 1819 contin- uing. Bishop Delancy was willing that it should remain. The latter, after an experience at Albany, most earnestly and publicly deprecated any attempt to obtain an alteration in the law as it stood. Its inconveniences or defects had far better be submitted to, than to encounter the risk of most radical and injurious provisions which would be urged. Organizatmi. There may have been, previous to these steps for an incorporation, a complete ecclesiastical organ- ization, a congregation or church, rector, wardens, and vestrymen. A clause of the first section of the Act of 1813 presupposes this, directing that the rector, if any, or in his absence, or if there be none, one of the church-wardens or vestrymen, shall be called to the chair. But such organization is not made necessary by the stat- ute. Any other person may be called to preside. While the ecclesiastical organization may exist, it is not indis- pensable that it should exist. In the case of St. Mark's Church, it did exist for some time before the incorpora- tion. This fact and distinction will be found of importance in many cases that arise. In Hoffman's " Law of the Church," p. 276, the report of a committee of the Diocese of Wisconsin is stated, accurately distinguishing the cases. " The organization of a parish is strictly and solely an ec- clesiastical procedure, constituting the parish a component part of the Protestant Episcopal Church, and as such duly entitling it to ecclesiastical rights and privileges. The ecclesiastical organization gives no civil or corporate powers to the parish." While the ecclesiastical organization confers no corporate powers, yet, in many cases, the civil incorporation will con- trol a canonical or diocesan regulation. Thus all regula- tions of the mode of a vestry's acting, its succession, rules as to property of the Church, will be exclusively governed by the statutes applicable to the body incorporated. In our State, and in the other States, as far as I am aware, the legislature has never gone beyond its proper limit j has '48 Ecclesiastical Law in the State of New York. never attempted to act as to matters of doctrine, discipline, or religious practice. There is, I apprehend, an inaccuracy in the precedent, in the Journal of the Convention of New York, in stating that there cannot be a rector until there is a corporation. § 3. Object of the Meeting. The object of the meeting is to incorporate themselves under the Act of 1813 as amended in 1819. They are by a majority of voices " to elect two church-wardens and eight vestrymen, and to determine on what day of the week called Easter-week, the said offices of church-wardens and vestrymen shall annually thereafter cease, and their successors in office be chosen. Also, to fix the name or title by which such church or congregation shall b€ known in law." ^ § 4. Notice. Of this first election, " notice shall be given in the time of morning service on two Sundays pre- vious thereto, by the rector, or if there be none, by any other person belonging to such church or congregation." ^ Here again, the organization of a church with a rector is supposed as possibly existing. This notice, if given by a layman, may be given from a pew or on a step of the chancel. The election would be legal if given by such anywhere, but Church regulations forbid that it should be given from within the chancel, from the desk, or pulpit. The writer, at least, upon examina- tion, gave an opinion to that effect. It is to be given " in the time of morning service." It is legal to give it at any period during such service. Cus- tom regulates it as to be done next after the reading of the gospel. It must not be given during evening service. It ought not to be given by a clergyman officiating who is not the rector. Most probably an incorporation, otherwise unobjectionable, would not be held invalid on this ac- count, but it is easy and secure to follow the letter of the statute. § 5. Presiding Officer. At this meeting for this incorpo- ration and first election, " the rector, or if there be none, 1 Sect. 1 of Laws of 1813. ^ md. The Protestant Ejnscopal Church. 49 or he be necessarily absent, then one of the church-warclens or vestrymen, or any other person called to the chair, shall preside at such first election." ^ If there is a rector, and he be present, he must preside. If absent, (the necessity will be presumed,) and there are wardens and vestrymen, then a warden or a vestryman must preside ; if both wardens are absent, then one of the vestrymen. All this presumes an ecclesiastical organiza- tion. But if there is no such organization, then any other person called to the chair shall preside. In stating that if there is a warden present he presides in preference to a vestryman, I state the custom rather than the strict law. The statute has not pointed out any order of presiding, except as to the rector. If insisted upon, I apprehend that the persons assembled may choose a presiding officer, though of course, only out of wardens or vestrymen. If not one of either class is present, then another person may be chosen. It is quite a common case, when there is no rector, for the clergyman who has officiated during the service to pre- side at the election. The committee of the Convention on the Incorporation of Churches in 1864, recognize this in the case of the Rev. Mr. Dyer, he being stated as assisting in the organization and presiding, although they held the certificate defective in not adding that he had been called to the chair. Still the tenor of the provisions rather indi- cates that the person so called and presiding should be one of the congregation, — one belonging to it. The number to be chosen are eight vestrymen and two wardens, neither more nor less. The election may be by ballot, or by open nomination, and viva voce voting. This point the meeting will first decide. Two persons of those present should be called by the chair to assist in counting the ballots, or to join in declaring the result upon an election by nomination. They are to join in the certificate. It is advisable to appoint a secretaiy, and that minutes be kept, to be copied into a regular book, and attested by the 1 Sect. 1 of Laws of 1813. 50 Ecclesiastical Laiv in the State of Neiv York. presiding officer and secretary. The notice and days of giving it should be stated with the course of proceedings, and names of the persons chosen. It is expedient to enter all this in the book intended as the Vestry Minute Book. § 6. Certificate. " The person who presides, together with two other persons, shall make a certificate, under their hands and seals, of the church-wardens and vestrymen so selected ; of the day in Easter-week so fixed on for the an- nual election of their successors ; and of the name or title by which such church or congregation shall be known in law." 1 For the form of this certificate, see Appendix No. 2. All which the statute requires to be stated in the certifi- cate is the names of the wardens and vestrymen, the day in Easter-week fixed for the annual elections, and the name by which the church shall be known in law. In the case of All Saints Church v. Lovett (1 Hall's Su- perior Ct. Reps. 195), it appeared as a fact, that there was a rector, and that another person presided at the election. The Court held, that as the statute did not require that the certificate should state that the rector presided, or some one else in the cases prescribed, it would assume that the rector was absent to sustain the incorporation. The Methodist Union Church v. Richet (23 Barbour's Reps. 437), arose under the third section of the Act of 1813, applicable to other churches or congregations ; but the provisions as to notice, the holding the elections, and the certificate, are so similar as to make the decision per- tinent. The Court say, that although it is manifestly proper to show in the certificate that all the requirements of the statute have been followed, the omission of particulars not necessary to be stated, does not aflfect the validity of the certificate. A compliance with the statute, beyond what is required to be set forth, may be presumed. In the case of the Church of the Redemption in 1864, the certificate stated that the Rev. Robert I. Dickson pre- 1 Sect. 1 of Laws of 1813. The P)'otestant Ejoiscopal Church. 51 sided, but did not state that he was the rector, or had been called, etc. In point of fact he was the rector. The Committee of the Convention on the Incorporation of Churches, reported ag-ainst admission upon this and another ground, namely, the want of a stamp under the United States Laws. This last point is afterwards more fully noticed. The author's opinion being asked, he stated, that under the above authority the omission was not fatal, although the irregularity should be discouraged. It could not be doubted that the fact would be presumed, or would be open to proof. But if we look narrowly into this point, we may probably conclude that it is best that the certificate should be rigidly confined to what the law exacts, and go no further. It is merely the record of what took place at the meeting. Sometimes the certifiers might not be able conscientiously to state the previous action. Simplicity is attained. The certificate is clearly presumptive evidence of the incorpora- tion. All the prerequisites are open to proof, whether stated or not. § 7. Sigiiing, etc. The certificate is to be signed and sealed by the presiding officer and by two other of the persons present." ^ Care should be taken that these persons have been at the meeting for the whole time it lasted. § 8. Acknowledgment or Proof. 1. " Such certificate shall be duly acknowledged or proved by one or more of the sub- scribing witnesses, before the Chancellor, or one of the Judges of the Supreme Court, or one of the Judges of the Court of Common Pleas of the county where such church or place of worship of such congregation shall be situated." (Sect. 1 of Act of April 5, 1813.) 2. " Certificates of incorporation authorized by the ' Act to provide for the Incorporation of Religious Societies,' passed April 5, 1813, which shall be hereafter made or executed, may be acknowledged or proved before any officer author- ized to take acknowledgments or proofs of conveyances of 1 Sect. 1 of Laws of 1813. 52 Ecclesiastical Latu in the State of Neio YorJc. real estate, and in the same manner, and of the like effect ; and upon being so acknowledged or proved, shall be entitled to be recorded as in the said act provided." (Sect. 1 of Act of April 16, 1844, chap. 158.) Jndges of the Supreme Court, Judges of the County Courts, (at least out of the county of New York,) Commis- sioners of Deeds and Notaries Public, in their particular counties, are authorized to take the acknowledgment of deeds. 3. "All such certificates which have been heretofore ac- knowledged or proven, before any officer authorized to take acknowledgments or proofs of conveyances of real estate, shall and are hereby declared to be of the same force and validity as if the same had been acknowledged or proven before any one of the officers named in the first section of the act hereby amended ; but nothing* herein contained shall be construed to impair or aifect the rights of any per- son or persons, in any case where any legal proceedings shall be instituted for enforcing such rights before the passage of this act." (Sect. 2 of Act of April 16, 1844, chap. 158.) In The First Baptist Society v. Rapelye (16 Wendell, 605, 1837), the acknowledgment of the certificate was be- fore a Commissioner of Deeds, and it was held, that there was no valid incorporation on that account. Then the law of 1844 above cited was passed. A certificate may be executed, and will be received in evidence, in a suit testing the validity of an election, al- though not executed until several months after the election. (The People v. Peck, 11 Wendell, 604.) In the case of the Church of the Redemption, a meeting was held for the purpose of incorporating on the 12th of April, 1864. A certificate was executed, duly proven and recorded in the Register's office of the city of New York, on the 22d of April, 1864. The certificate was defective, and the record unavailing from the want of a stamp, under the law of the United States. (See post.) An election took place in April, 1865, on the day fixed upon, and some The Protestani Episcopal Church. 53 chang-es were made. An application for admission to the Convention in September, 1865, was reported against, be- cause of this want of a stamp, and that there was no incor- poration. On Saturday, the 31st of March, 1866, a new certificate was executed by the same three persons who signed the former one, was duly acknowledged and stamped, and was recorded on Monday, the 2d day of April, 1866, in the Register's office. Ou Sunday, the 1st of April, 1866, notice was given that the annual election would be held on the Tuesday ensuing. Such election was held and certain changes in the vestrymen made. The new certificate was a precise transcript of the former of the same date, excepting it stated the presiding officer to be the rector. The subscribing witnesses were diff'erent. The author submitted the following' results in an opinion. (The eflFect of the want of a stamp was first discussed. See That assuming the first record to be totally void, and no corporation constituted, the renewed certificate was a valid instrument properly executed, and the corporation was cre- ated when it was recorded. That the old certificate could have been used, and stamped and recorded anew, with the same eflFect. There was however no objection to the issuing of the new one. The statute had nowhere prescribed a time for such an instrument to be acknowledged, or even for its execution. A defective certificate could be supplied subsequently by a new one. That had the new and regular certificate been filed in the proper office within a year from the organization, every thing would have been valid ; and that the better opinion appeared to be that if nothing had been done requiring corporate powers, nor any thing ac- quired as a corporation, the old vestry held their places, and the proceedings would be valid. The provisions of the statute formed rules by which the members had agreed to be controlled. That as the statute did not require any notice to be given of a subsequent election, nor any rule existed requiring notice, that given in the case on the pre- ceding Sunday was sufficient. 54 Ecclesiastical Law in the State of New YorJc. 4. Stamp. As before observed, the application of the Church of the Redemption for admission into Convention, was reported against on the ground of the want of a stamp upon the certificate. The Committee quote the 152d section of the Act of Congress of June 30, 1864, providing that it shoukl not be lawful to record any instrument required by law to be stamped, unless a stamp of the proper amount be affixed. And the record of any such instrument upon which the stamp or stamps shall not have been affixed, shall be utterly void, and shall not be used in evidence. The author, in the opinion before referred to, observed, that as the certificate was executed April 12th, and recorded April 22d, 1864, an act of the ensuing June could scarcely invalidate an instrument then on record, if it was before valid. The question would seem therefore to be governed by the law in force at the previous dates. By the Act of July 1st, 1862, stamp duties are imposed on the instruments enumerated in Schedule B annexed to it. Among such instruments was " a certificate of any other description than those specified." A duty of ten cents was imposed, afterwards reduced to five. The Commissioner of the Revenue held, that " a stamp was requisite upon every certificate which has or may have a legal force in law or equity." Section 95 imposed a pen- alty for signing or issuing any instrument without the proper stamp ; and declared, " that such instrument as aforesaid should be invalid and of no effect." Various provisions were quoted, relaxing the law under particular circumstances. The 163d section of the Act of June 30th, 1866, was cited, and is as follows : " No deed or instrument so required by law to be stamped, and heretofore signed or issued without being duly stamped, nor any copy thereof, shall be recorded, or be admitted to be used as evidence in any court, until a legal stamp shall be affixed ; and a party interested is au- thorized to affix such stamp in the i)resence of the Register, Recorder, etc. Provided, that no instrument, etc., issued prior to this act Avithout being stamped, shall for that The Protestant Episcopal Church. 55 cause, if the stamps required be affixed, be deemed invalid and of no effect." The certificate in the case was invalid and of no effect, not under the 152d section of the law of June, 1864, but under the original Act of 1862 (§ 94-95), as amended to five cents. But under the clauses cited, the old certificate (at least prior to July 13th, 1866,) could have been stamped, and have been then duly recorded anew, or the old ren- dered legal. From that time certainly, the corporation would be constituted. And it might be that such stamping would render every thing operative and valid from the beginning, so that if stamps were now affixed, the corporation would be deemed in existence from April 22, 1864, and every corporate act established. (Brown v. Savage, 5 Jurist, 1070 ; Rogers v. James, 7 Taunton, 747.) The Act of the 13th of July, 1866, § 9, was, however, the act in force, and was the same as section 152 of the Act of June 30th, 1864. There might perhaps be a ques- tion whether the clauses referred to are not repealed. But without considering this point, as the new certificate was duly stamped and recorded in April, 1866, before this act, the strong ground was, that the corporation commenced April 2d, 1866. It was stated that there was nothing, con- nected with property or otherwise, which would make the fact that there was no legal incorporation from 1864 until this period, of importance. As above noticed, the law of 1866, now in force, forbids the recording of any instrument on which stamps are required, without such stamps are affixed ; otherwise, the record is wholly void, and cannot be given in evidence, § 9. Record of Certificate. (1.) The certificate thus exe- cuted, and acknowledged or proven, shall be recorded by the Clerk of such county (the county where the church or place of worship of such congregation shall be situated), in a book, to be by him provided for that purpose. (§ 1 of Act of April 5th, 1813.) (2.) " All that part of the former duty of the Clerk of 56 Ecclesiastical Law in the State of New York. the city and county of New York, which appertains and re- lates to the registering of mortgages, and to the recording of deeds, conveyances, and other writings, which by law are directed, or liereafter may be directed, to be registered or recorded, shall continue to be held, exercised and enjoyed, by a person to be appointed as is hereafter mentioned, and be called the Register in and for the city and county of New York ; and he shall have and enjoy all the rights and powers, and perform all the duties which were formerly per- formed by the Clerk of the city and county of New York, in relation to the recording and registering of deeds, con- veyances, mortgages, and other writings." (§ 99 of Act of April 9, 1813, as amended by subsequent acts.) (3.) The Clerk of the city and county of New York shall forever hereafter be relieved, restrained, and precluded from doing or performing any duties or services, or any act, mat- ter, or thing whatsoever, as Clerk of the city and county of New York, so far as the same relates to the registering of mortgages, and recording of deeds, conveyances, and other writings, which by law are, or hereafter may be, directed and required to be recorded or registered. (Ibid. § 160.) These provisions are found in the act to reduce the laws relating to the city of New York into one act. (2 R. L., 1813, p. 412.) The first act was that of March 13, 1812. (6 Webster, 163.) (4.) " Whereas several religious societies whose places of worship are in the city of New York, seeking to incorpor- ate themselves under the provisions of an act entitled, ' An Act to provide for the Incorporation of Religious Societies,' passed April 5th, 1813, have, through mistake, caused the certificate provided for by the first section of this act to be recorded in the office of the Clerk of the city and county of New York : Now, therefore, be it enacted, that the recording of every such certificate in the said office of the Clerk of the city and county of New York, prior to the passage of this act, be regarded and construed, and such recording is here- The Protestant Episcopal Church. 57 by declared to be, of the same validity, force, and eflFect, as would have been the recording- of such certificate in the office of the Register of the city and county of New York ; and every act, deed, matter, and thing, done or performed by every such religious society since the recording* of its cer- tificate in the office of said Clerk, is hereby ratified and con- firmed, and declared to be valid in all respects, as if said certificate had been recorded in the office of said Register ; but this act shall not affect any suit or proceeding already commenced arising out of such original mistake." (§ 1 of Act of April 29, 1863, chap. 287.) In the case of the Church of the Atonement, before men- tioned, the certificate of an election in November 1865, had been filed in the County Clerk's office. An opinion was given that this was not the proper office, but the Register's only. Among other points the Revised Statutes were referred to (1 R. S. 762, § 38), defining a conveyance " an instrument by which the title to any real property may be affected in law or equity." And also the provisions by which for re- cording conveyances, the Register of the city of New York, was, by section 43, made in effect the County Clerk. A doubt was expressed whether a certificate by which no title was directly affected, but through the recording of wliich a body might acquire title, and in a particular mode transfer it, was within the clause. However, the Act of April 29, 1863 {ante), was a clear legislative declaration, that the Register's office was the proper place, and not the Clerk's office. The filing in the wrong office was equivalent to an omis- sion to file and record at all. And hence no corporation had been constituted. The language was, " that the trustees and their successors shall thereupon be a corporate body," etc. The recording was a prerequisite as absolutely necessary to be followed as any other prescription of the statute. § 10. Certificate Evidence. By the Act of 1813 (chap. 271, § 9), this certificate, duly proved or acknowledged, with the certificate of the proper officer endorsed thereon, may be received in evidence, on the trial of any action, in the 58 Ecclesiastical Law in the State of New York. same manner as if such instrument were a conveyance of real estate. And by the Revised Statutes (1 R. S. 377, § 76), copies of all papers duly filed in the office of the County Clerk, and transcripts from the book of records kept therein, certified by such Clerk, with the seal of his office affixed, shall be evidence in all courts, in like manner as if the originals were produced. The transcript of all records certified by the said Register may be read in evidence in any court of this State> without further proof of such deed, conveyance, or other writing, so recorded, in the said office. (§ 161 of Act of April 9, 1813, " To reduce," etc.). § 11. Vestry are Trustees. " The church-wardens and ves- trymen so created, and their successors in office, of them- selves ; but if there be a rector, they, together with the rector, shall form a vestry and be the trustees of such church or congregation." (§ 1, Act of 1813.) In the first place, the wardens and vestrymen, if there is no rector, constitute a vestry ; but if there is a rector, then they, together with him, form it ; and it cannot be formed without him. In the same manner, they, or they with the rector, are constituted trustees. The Church phraseology is thus preserved. A vestry is constituted resembling the select vestries of the English law, and representing the mass of the parishioners. The assembling of these with the rector, forms a vestry gener- ally, as known to that law. So by the second section of the Vestry Act of Maryland, the rector of the parish, with all the eight vestrymen chosen at the election, shall be deemed and considered the vestry of the parish for the ensuing year, and the rector of the parish shall always be one of the vestry. The Act of 1785 of Virginia, and the ordinance of the Convention after the repeal of that act, contain similar pro- visions. The statute of Wisconsin is to the same effect. § 12. Corporate Body. Such trustees and their succes- sors shall thereupon, by virtue of this act, be a body cor- porate, by the name or title expressed in such certificate. (Ibid.) The Protestant Episcopal Church. 59 This language is precisely the same as that used in the third section of the act, under which it has heen hekl, that trustees do not form the corporation, so as to enahle them to sue in their own names. (See i)ost, chap. 16, § 3.) § 13. Subsequent Elections. "The persons qualified as aforesaid, shall in every year thereafter (after the first elec- tion), on the day in Easter-week, so to be fixed for that pur- pose, elect such church-wardens and vestrymen." (§ 1 of Act of 1813.) " No person not 2}ossessing those qualifications, shall be per- mitted to vote at any subsequent election of church-wardens and vestrymen." (§ 1 of Act of March 5, 1819, chap. 38.) The qualifications thus prescribed are those stated in the first section of the Act of 1813, and which, until the Act of 1819, were all required for the first, as well as subsequent elections. They are, — (1.) Being a male person of full age. (2.) Being of a church or congregation in communion with the Protestant Episcopal Church in this State. (3.) Having belonged to such church or congregation for the last twelve months preceding such election. We pause here to notice that these qualifications are sep- arate, and each essential. The qualifications subsequently stated are adjuncts to these, though distinctive in them- selves. Great errors are fallen into by not understanding or neglecting this point. The essential and indispensable prerequisites of a voter are, — 1. That he is a male adult. 2. That he shall be of a church which is in communion with the Protestant Episco- pal Church in this State. 3. That he has belonged to the particular church where he proposes to vote, for twelve months preceding the election. Then follow other qualifications, each of which is ad- junctive to, or explanatory of, the preceding qualifications. (4.) And who shall have been baptized in the Episcopal Church. Or, shall have been received therein either by the rite of confirmation, or by receiving the Holy Communion ; or, by purchasing or hiring a pew or seat in said church ; or, by 60 Ecclesiastical Laiv in the State of New York. some joint act of the parties and of the rector, whereby they shall have attached themselves to the Protestant Epis- copal Church. Apparently there is a class of what may he termed eccle- siastical, and another of secular qualifications. It has been claimed that one who hires a pew or seat, although an avowed Dissenter or Romanist, and who had frequented the church sufficiently during the year, might vote. But this view is clearly erroneous. The church or con- gregation to which he shall have belonged for a year, is to be one in communion with the Protestant Episcopal Church. He is to be of that Church. Hence he is to be of such com- munion. Reception into the Convention is a plain proof of this communion of the Church. But it is not the only test. Avowal of the doctrine and discipline, worshiping accord- insr to its formularies, is also such. The individual member must have the same belief and give the same indications and proofs of it as the body. Again, being baptized in the Episcopal Church (meaning, according to its prescribed forms and order, excluding in this instance, I apprehend, lay baptism,) is a definite proof of this comsnunion. Then the other qualifications specified contemplate a re- ception into tlie Church of persons not in it by virtue of baptism. They are designated as having been received by confirmation or through the holy communion. These evi- dences are not local but general. The next is local : or, by purchasing or hiring a pew or seat in said church. But the true version of this is, the hiring or purchasing a seat in the particular church by one in communion with the Church, — the general spiritual body, — but in a very loose sense. Thus a person may have been baptized with lay baptism, or never baptized, nor confirmed, nor taken the communion, yet if he professes to unite himself with the Episcopal Church, and evinces it by worshiping in a church of that faith for a year previous, then the holding or hiring a pew The Protestant Ejnscopal Church. 61 or seat in it, is a reception into it, for the purpose of voting". Many years ago this subject was submitted to the late Chief Justice Jones, and the author. The opinion was very clear, that thus far the provisions were plain and consistent. No one could vote who was not of the communion ; in other words, a professed Episcopalian, and had belonged to the particular church for a year previous ; and the meaning of this phrase was, the statedly worshiping at the church, or whenever he attended public worship, with the exception of necessary absences; or at least, that there was not a greater or equal degree of attendance on public worship elsewhere, during the year. But the remaining clause has always been a subject of difficulty. A person may be qualified to vote " by a joint act of himself and the rector, whereby he attaches himself to the Protestant Episcopal Church." This again is subordinate to the yearly attendance. It would of course shock every one to state the proposition, that a rector could make a person a member of the Church, the body of Christ, in any way but through the ordinances of the Church. That is not the sense which can be admitted. I have known of a case in which a rector received a money contribution for his own support, or for the general use of the church, a few weeks before the election, and ad- mitted the party to vote. Besides the decisive objection of the want of attendance for the year previous, this was a flagrant misconstruction of the provision. That payment was not attaching himself to the church. It is clear that the clause means something positive and permanent, by which the person declares an adherence to the Protestant Episcopal Church, its doctrine, discipline, and worship. Cases may be imagined in which one seeking to come within it, is not yet prepared for its ordinances of admission. In such a case, fOr the purposes of voting, the statute permits an act of avowed adhesion, made to and with the assent of the rector, to avail. Manifestly, a mere pecuniary contribution is not within its scope. The joint act should always be put in writing. 62 Ecclesiastical Law in the State of Neio York. This clause of the statute receives ilhistration from a por- tion of Cauon XV. of 1798, " of the duty of ministers to keep a register." This remained part of the law of the Church until 1832. " And no minister shall place on the said list the names of any persons except those who, on due inquiry, he shall find to have heen baptized in this Church, or who, having heen otherwise baptized, shall have been received into this Church, either by the holy rite of confirmation, or by receiving the holy communion, or by some other joint act of the parties and of a minister of this Church, whereby such persons shall have attached themselves to the same." This was omitted in the revision of 1832. We see from this provision, that it was considered that lay baptism was sufficient for confirmation. Wheatley says, that in the early Church, confirmation preceded the eucha- rist, except there was extraordinary cause to the contrary, such as in the case of clinic baptism, of the absence of a bishop, or the like ; in which cases the eucharist is allowed before confirmation. (Book of Common Prayer, p. 394.) See the Rubric to the communion office. The statute is almost word for word with the canon in force when it was passed. We may presume members of the Church drew it. It seems quite clear, that the joint act must be one indicating an adhesion to the Church, its doctrines, and order. In The People ex rel. v. Lacoste (Supreme Court, 1865), the Judge, upon a trial as to a contested election, charged the jury, that the clause meant something of a spiritual or ecclesiastical character. The sense of the phrase, "who shall have belonged to such church for the last twelve months," may be gathered from the following cases : — In The People i;. Tuttle (31 N. Y. Rep. 550), it was held, that the words " stated attendant on divine worship in the said congregation, at least one year before the election," was held to mean, attendance regularly, at regular fixed times, not occasional. The attendance must be personal. It cannot be supplied by another. The regular attendance The Protestant Episcopal Church. 63 of a wife or other member of the family will not suffice. And no amount of contribution can be accepted in lieu of this personal presence statedly. In the case of The People v. Phillips (1 Denio, 388), aris- ing* under the third section of the Act of 1813, a decision was made pertinent to the case now considered. The qual- ifications of voters at the first election are these : " Everv male person of full age, who has statedly worshiped with such church, congregation, or society, and has formerly been considered as belonging thereto." But at subsequent elections, no member shall be permitted to vote until " he shall have been a stated attendant on divine worship in the said church, congregation, or society, at least one year be- fore such election, and shall have contributed to the support of such church, according to the usages and customs there- of." (Ibid. § 7.) The Court say : " These qualifications could neither be abridged nor extended by any act of the trustees or of the corporators. Every corporation has power to make by- laws, but they must be consistent with its charter or they will be invalid. As far as any by-law required qualifications for the right of voting, not recognized by the statute, they were wholly unauthorized. A by-law making a formal act of admission by the trustees, and payment of a particular sum of money therefor, was not warranted." See Angell & Ames on Corp. 267, 273, etc. The highly important case of Petty v. Tooker (21 N. Y. Rep. 267), is hereafter examined at length. It is attempted to be shown that it does not apply to Episcopal churches incorporated under the first section. It adjudged that corporations formed under the third section were not denominational, and individuals did not lose their right to vote by abandoning the doctrine and ecclesiastical organi- zation of the Church. There are some disqualifications under the general law of the State which I proceed to notice. Infants. The rules of the common law, it is to be noticed, applicable to civil corporations established by statute or G4 Ecclesiastical Law in the Staie of New York. charter, apply to iucorporations of an ecclesiastical char- acter. (Robertson v. Bullions, 11 N. Y. Rep. 243.) The rule requiring voters to he adults is taken from the common law. In the case of Trinity Church, New Rochelle, under a charter of 1762, where the phrase was merely " the members in communion with the Church of England," etc., the opinion was given that the votes of minors were ille- gally admitted. " The members of corporations may be natural persons, that is, in municipal corporations, males of years of major- ity." (Grant on Corporations, p. 5.) " In general, infants cannot be corporators." (p. 6.) " An infant cannot be an attorney, bailiff, factor, or receiver," (McPherson on Infancy, p. 448) ; " nor steward of a manor, or of the court of a bish- op, because he has not sufficient knowledge or experience to use the office ; nor can he appoint a deputy," (Hobart, 525) ; " nor can he be a member of the House of Commons." (McPherson, 448 ; 2 Inst. 47.) The statement in some books (Bingham, for example), that a minor may be the mayor of a city, is not now law, if it ever was. (Grant on Corporations, 422 ; Claridge v. Evelin, 5 Barn. & Aid. 81.) Women. Here another rule of the statute excluding women is the rule of the common law. In the case before noticed, under the charter of Trinity Church, New Rochelle, the admission of votes by females was deemed improper. In general, v>omen cannot be corporators, although in some hospitals they may be so ; and there is one instance in the books, of a corporation of brethren and sisters in- vested with municipal powers to a certain extent. (Grant on Corporations, p. 6 ; Palmer's Reps. 77 ; Sutton Hospital Case, Coke's Rep. vol. ix. part 10.) Proxies. Voting by proxy is scarcely ever allowable, except in cases of the right being expressly given by charter or prescription, and in the case of peers in the House of Lords. Personal presence is essential. (Rex v. Ellis, 17 State Trials, 822.) The language of Chancellor Walworth in Phillips V. Wickham (1 Paige, 598), is decided and comprehensive The Protestant Einscopal CJmrcJi. 65 upou this point. See also the case of the Dean and Chap- ter, Sir John Davies' Rep. 129, and Taylor v. Griswold, Supreme Court of New Jersey (2 Green's Rep.), deciding", that it required express legislative authority to authorize a corporation to make a by-law admitting votes by proxy. See also Kent's Comm., vol. ii. p. 229. § 14. When Held. " Such election shall be holden imme- diately after morning service." (§ 1 of Act of 1813.) Of course the service should take place. It may be doul)ted whether an election, without such service being held, would be valid. In the absence of express authority all that can safely be said is, that it would be very inadvisable to omit it. Notice not Essential. It is customary and expedient to give notice of the stated election two Sundays previous ; but the statute does not direct any notice, and an election is good without it. The parishioners are assumed to know the day in Easter-week selected. (Wilson v. Dennison, Ambler's Rep. 182.) § 15. Presiding Officer. The rector, or if there be none, or he be absent, one of the church-wardens or vestrymen, shall preside, and receive the votes of the electors, and be the returning officer. (§ 1 of Act of 1813.) In The People v. Peck (1 Wendell, 604), it was declared, that no one but the persons designated under another sec- tion (elders or church-wardens), could preside at an election, if present. The appointment of others, when one of the class were present, was illegal, and vitiated an election. It is to be noticed that the language in relation to the presiding officer is peculiar. " The rector, or if there be none, or he be absent, one of the church-wardens or vestry- men, shall preside, and receive the votes of the electors, and be the returning officer." The class is designated out of which the presiding officer, in absence of a rector, shall be chosen. No order of pre- siding is declared. If any warden or a vestryman preside, the course is regular. But if a claim is made by a warden over his brother-warden, or over vestrymen, the only mode 66 Ecclesiastical Law in the State of New York. seems to be, to settle it by the votes of those present. The custom has been for a warden to preside ; but my opinion is, that the voters present may choose any one of the des- ignated classes to do so. In the absence of express reg- ulation, this right is an incident to every corporate or associated body. (Wilcox on Corporations, 1-59.) The presiding officer is to receive the votes, and make the return. By force of this language, its accepted con- struction, and general law, he is the judge of qualifications of the voters. There is no appeal to the meeting from his decision. The Supreme Court, on application, determines the validity of the election, and the propriety of admitting or rejecting votes. It is sufficient to notice here that it is an inflexible rule, that the Court will not set aside an election unless the result would have been changed, had the decision of the presiding officer been correct. (31 N. Y. Rep. 550.) The rector or presiding officer has a vote as a member ; but there is no provision allomng a casting or double vote, upon an equal division. A plurality of votes is insufficient. A majority of all the votes is necessary, that is, a majority of the legal votes, cast for an eligible person. In Claridge v. Evelyn and others (5 Barn. & Aid. 81), an infant had received a majority of the votes cast for the office of Clerk of the Court of Bequests. The voters for him were informed of his disqualification. The plaintiff received a minority of votes. The Court held, that the votes for the infant were thrown away, and that the plaintiflF had been duly elected, receiving a majority of votes really cast. So in Rex v. Hawkins (10 East, 218), it is ruled, that if the incapacity is discovered before the election is closed, the voters may cast their votes anew, for some one qualified. But if they do not, the voice of such as do vote prevails. If the assembly is properly convened, and votes are cast, but the majority neglect to vote, yet the election will be valid. Their neglect is considered as equivalent to an as- sent to the decision of those who do vote. (Rex v. Foxcroffc, The Protestant Episcopal Church. 67 2 Burrows, 1020 ; Crawford v. Powell, 2 Burrows, 1016 ; Gosliu V. Vesey, 7 Queen's Bench, 439 ; Also Regina v. The Mayor of Leeds, 7 Adol. & Ellis, 963.) The case of Goslin v. Vesey, ut supra, contains a sum- mary of the whole law. It seems to me that these cases warrant the conclusion, that a blank vote is not to be counted. See, especially, the reasoning- in Goslin v. Vesey. By our statute, for the first election the decision is to be Ijy a majority of voices, that is, of voters. For the subse- quent elections, there is no similar phrase. The common- law rules will therefore control. As to the persons eligible, as there is no special provision, it may be sufficient to say, that they may be chosen, who are competent to choose. The qualifications of an elector are the qualifications of the officers. (Wilcox on Corporations, § 480.) After the ballots have been received without challenge or objection, the right to inquire into the character of the voters ceases. The duty is then to count the votes, and return the number received, and the names of the parties having the greater number. (People v. White, 11 Abbott, 168.) The judges at an election set forth in their certificate, that one set of candidates had a majority of the votes cast, but that after the result had been declared, satisfactory evi- dence was produced to them, that part of such votes were illegal ; and that setting them aside, the other set of candi- dates were elected, which they therefore certified to be the result. It was held, that the certificate destroyed itself, and that the first set of candidates were to be deemed elected. (Hart V. Harvey, 32 Barbour's Rep. 55.) It was ruled that the inspectors as judges must decide when the vote is offered ; and the decision then made, if in favor of receiving the vote, is final. From the necessity of the case, a decision cannot be delayed until after the vote is deposited in the box. How are the inspectors to know which of the ballots should be withdrawn ? 68 Ecclesiastical Law in the State of Neiv York. In general, a certificate of election is prima facie evidence of the right of the parties to the office ; but not where the facts stated show they were not elected. § 16. " The presiding officer shall enter the proceedings in the book of the minutes of the vestry, and shall sign his name thereto, and offer the same to as many of the electors present as he shall think fit, to be by them also signed and certified." (§ 1 of Act of 1813.) § 17. " The church-wardens and vestrymen, to be chosen at any of the said elections, shall hold their offices until the expiration of the year for which they shall be chosen, and until others be chosen in their stead." (Ibid.) This provision must be considered in connection with the second section of the Act of April 16, 1844, chap. 158. Whenever there shall have been an omission or neglect of any church, etc., at their stated annual meeting, to choose any of the trustees, church-wardens, vestrymen, or other officers, such church, etc., shall not be deemed or taken to have been thereby dissolved ; but the trustees, church-wardens, vestrymen, or other officers then in office at the time of such omission, shall be deeuied and taken to be the legal officers of such church, etc., and shall continue to hold their offices until others be chosen in their stead : Provided, that elections to supply such omissions shall be made within one year after their occurrence respectively. It may be considered, I think, that the omission spoken of in this last act, may signify as well an omission to elect on the stated day, although the meeting for that purpose is held, as an omission to hold any election. The following case, which occurred in 1863, led to a consideration of these provisions. At an annual election of the vestry of an Episcopal Church, the full number of vestrymen was duly elected, and one of the former wardens. There was a tie vote between the other former warden and a stranger. Now, cases of a similar character may easily be snpposed. If a given number of the old vestrymen receive a majority of legal votes, and the election fails as to the rest, as by The Protestant Episcopal Church. 69 reason of a tie, or that none of them have a majority of the votes cast, the other vestrymen are ascertained and continue. If they hokl over, the vestry is complete, neither exceeding" nor falling short of the prescribed number. And so in cases under sections 3 and C of the General Act of 1813, if one or two persons of the class to be elected are old trustees rechosen, and no election takes place as to the others or other, the persons holding over are definite and known. But suppose a definite number of vestrymen, being new persons, are duly chosen, there is no mode pointed out of settling who of the old vestrymen hold over. The number must not exceed eight, and the body should, if practicable, be kept complete. So if a third person was chosen warden, or a third person a trustee, of the class under section 6, the like difficulty would exist. Both provisions cited admit of the construction, that if the election fails as to a single vestryman or trustee, it fails wholly, and all the former officers hold over until a new election within the year. This construction is not reason- able, as it would defeat the express will of the corporators as to those whom they have actually chosen. Hence, it seemed to the writer, that where the statute could be ob- served and reconciled with that will, it might legally be done ; and hence, that in the case stated, the election as to the vestrymen and the old warden was valid, and that the other former warden held over. But in the other cases above suggested, I do not see how the consequence is to be avoided, that if there is a failure even as to one, when seven new vestrymen are duly chosen, there is no election, and the old vestrymen hold over. I speak without confidence where is no guide in any author- ity of which I am aware. There is no rule of the common law by which a pei'son elected continues in office after the expiration of the term limited by law. Charters or special statutes provide fre- quently for this. (The People v. Tiernan, 8 Abbott, 359.) There are cases, however, in which the rights of third per- 70 Ecclesiastical Laiv in the State of New YorJc. sons are involved, in which an officer is deemed to continue in his functions. A party claiming to hold over under such a provision, must, upon a quo warranto, show specially, or plead, that no one has at any time been chosen to succeed him. It is not enough that an attempt has been made to choose a new trustee and failed, if there was time after such failure to have had an election, when a choice might have been made. (The People v. Phillips, 1 Denio, 388.) § 18. The church- wardens and vestrymen shall have power to call and induct a rector to such church or con- gregation, as often as there shall be a vacancy therein. (§ 1 of Act of April 5, 1813.) In this provision, the call or election, and communication to the party, is the presentation of the English law. The induction of that law consists of some act giving the party possession of the glebe and parsonage if any, the use and control of the church edifice to a certain extent, and re- ception of rents and income given for the support of a rector for the time being. The clerk is not complete incumbent till after induction, or as the common law calls it, corporal possession. It is an act of a temporal nature. It is so, although it is an act of spiritual persons about a spiritual matter. It instates the party in full possession of the tem- poralities. And the parson may maintain an action of tres- pass on the glebe land, although he has not taken actual possession of it. (Bulwer v. Bulwer, 2 B. & Aid. 470.) But with us, such an action could only be maintained by the corporation in its corporate name, through the trustees. This is distinct from the right of enjoyment, which is in the minister. Under section 21 of this chapter {post), I have examined minutely the points as to a rector's interest in, and posses- sion of, the property belonging to a church. § 19. " No meeting or board of such trustees shall be held, unless at least three days' notice thereof shall be given in writing, under the hand of the rector, or one of the church-wardens." (§ 1 of Act of 1813.) The Protestant E])iscopal Church. 71 Perhaps this does not interfere with the right of a vestry to pass a by-law or order fixing stated days for a vestry meeting. Of such days the members are chargeable with notice, although it is a custom to give the special notice even in such cases. (Wilcox on Corp., § 59 ; Wilson v. Den- uison, Ambler's Rep. 82 ; 4 Barn. & Cress. 441 ; Smith V. Lane, 21 N. Y. Rep. 296.) It is very common for vestries to fix upon some special days for their meetings. But at least, if anything of moment is contemplated, it is prudent to give the notice. § 20. " No such board shall be competent to transact any business, unless the rector, if there be one, and at least one of the church-wardens, and a majority of the vestrymen, be present." {§ 1 of Act of 1813.) 1. Thus far, the provision is very explicit. For the con- stituting of a legal board, competent to act, there must be present the rector, a warden, and a majority of the vestiy- men. There are thus three integral parts of the body, which personally, as in the case of the rector, or by repre- sentation, as in the cases of the wardens and vestrymen, must attend. 2. Vacancy. In case of there being a vacancy by death, resignation, or otherwise, of both the wardens, no legal meeting can be had or act performed. An election to fill the vacancies must be had. The statute provides for this conveniently. And so if the vestrymen are reduced below five in number. But I am inclined to think, that if the defect is in the number of vestrymen, still leaving five, and the board is otherwise competent, the power of the vestry is unimpaired. The statute requires only a majority of tJie vestnjmen to he present. No doubt a majority of those to be elected, the full number of eight, is intended ; not a majority of those sur- viving or remaining. (Rex v. Morris, 4 East, 26 ; Rex v. Thornton, Ibid. 307 ; Rex v. Miller, 6 T. R. 278.) Even if the phrase, " for the time being," is used in a charter, a majority of surviving members of a definite class is not enough. And in the leading case of The King v. 72 Ecclesiastical Law hi the State of Neiv York. Devonshire (1 Baru. & Cress. 609), the words, "reinaiuiug and surviving," used in a charter, were held to mean only, " for the time being." A careful examination of Chief Justice Abbott's opinion in this last case, and of The King v. Bellringer (4 T. R. 810), stated by him, will, I think, warrant the position that five vestrymen will be enough, where there are vacancies as to the others. His language is, " That The King v. Bell- ringer had decided, that where an election is to be made by a body consisting of a definite number, a good elective assem- bly cannot be had without the presence of such a number of persons as will constitute a majority of the entire definite number, although the number present may constitute a majority of the entire number existing. From the time of The King v. Bellringer, this has been taken as a general and established rule of corporation law." The converse of the proposition, I take it, must be true. If a majority of the definite body when full, is present, it must be sufficient. Yet it would be prudent to fill up the vacancies before any important act is performed. 3. It is quite clear that no act is technically legal, unless had at a meeting thus composed of a rector, (if one,) a warden, and a majority of vestrymen. Yet, for current and ordinary business, not affecting property or rights, a cus- tom has arisen of transacting it at an irregular meeting, and obtaining a subsequent approval. 4. EquaUtij of Votes. But what are the positions of rector, wardens, and vestrymen when thus assembled ? The right of presiding is vested in the rector by another clause ; or if there be none, in a church-warden. With this qualification, I consider every thing integral and dis- tinctive, to be lost. The vestry is a board of trustees es- tablished by statute, and governed by its prescriptions or general principles of law. The members are then upon an equality of power as to every corporate resolution or act, except as to a casting vote in the presiding officer, if the view of that provision, taken hereafter, is correct. (See § 21, post.) I cite some pertinent authorities : — The Protestant Episcopal Church. 73 Thus in the case of St. Mary's Church, PhiUidelphia, (7 Serg. & Rawle, 517,) the trustees of a church consisted of three clerical and eight lay members. The Court say : "When legally assembled, the majority of voices govern; but every integral part must be present at a corporate assembly, by a majority, at least, of its proper members ; though the major part of all present when assembled are competent to do a corporate act. So in Beck v. Hanson (9 Foster's N. H. Rep. 213), by the charter of Portsmouth, the board of aldermen and board of councilmen formed, in their joint capacity, a body called the City Council. And a majority of each board was to constitute a quorum for business ; that is, business in its own chamber. Each board voted separately to meet in con- vention on a given day to choose city officers. A minority of the board of aldermen appeared. But the members of the Common Council and this minority made a majority of the whole number of both boards. They chose an officer by a majority of voters present, and the election was held valid. After the agreement of the aldermen to meet, it was not necessary that a majority of them should appear. See the case of The King v. Brower, 1 Barn. & Cress. 492, commented upon in Whiteside v. The People, 26 Wendell, 643. In Ex parte Rogers (7 Cowen's Rep. 527), the question arose under the following statutory provision : " There shall continue to be appointed two officers, by the name of Canal Appraisers, who, being associated with any acting canal commissioner, shall be the appraisers of damages in the cases hereafter specified." (Laws of 1825, chap. 275.) Mr. Young was a canal commissioner, and Messrs. Wood and Selden, appraisers. They met, heard witnesses, and discussed the merits of an application for damages, and separated. On coming together subsequently, Mr. Young refused to act, and declared himself no longer a member. The two appraisers assessed the damages at a certain sum, and signed a certificate thereof. On motion for a manda- mus, the Court held the proceeding valid, and granted a peremptory mandamus for payment. 74 Ecclesiastical Law in the State of New York. In a note by Justice Cowen, a number of cases are cited. He says : " Yet in several cases (indeed, this is generally so, 1 Barn. & Cress. 492), the requisite parts being present, they constitute one body, each individual having but a single vote ; the integral part, composed of the lesser number, be- ing in this way within the power of the more numerous, for want of an absolute veto. Thus in the case of mayor and aldermen, when all are assembled, the vote of the mayor, one of the integral parts, weighs no more than that of a single alderman." He then notices the cases in which a mayor, after busi- ness had begun, left the meeting. In the instances in which it has been held, that an election after he withdrew was void, it was plain, that the charters made it essential that he should be present at the consummation of the act. So in relation to dean and chapter. It is a body corpo- rate spiritual, consisting of many able persons in the law, namely, the dean who is chief, and his prebendaries ; and they together make the corporation. (Burns' Ecc. Law, 2-92.) It is not a perfect corporation without the dean. (Ibid. 94.) Yet it is certain the dean is one, and but one member of the body corporate. (Ibid. 117.) Under particular local statutes, questions as to the neg- ative power of a dean arose. See particularly the case of the Cathedral Church of Carlyle, stated fully in 2 Burns, 113, where it is shown, that such a power is contrary to the general law of the land, and must be most expressly con- ferred. At page 117, is an opinion of a very able advocate and two learned counsel, which was acquiesced in : " That by the general rule of law, in all corporations aggregate, the act of the major part shall bind the whole ; for it is said, uhi major pars ihi totum. But though the law was so in the case of corporations aggregate, yet as in those corporations there is generally a chief member of the corporation, as dean and chapter, master and fellows, mayor and common- alty, the consent of the head member has, by many local statutes, been made necessary in corporate acts. The Protestant Episcopal Church. 75 Hence it was found necessary, in order to prevent confu- sion, by an act of Parliament to abrogate all private local statutes in every such corporate body, which were contrary to the said rule of the common law. And therefore the act of 33d Henry 8th, declares, that every rule or statute made or to be made, whereby any grant, lease, gift, or election by the majority of a corporation, shall be let or hindered, shall be absolutely void and of no effect. A presentation by the major part must bind the lesser; otherwise differences in the body could never be terminated, nor could any corporate act be done without the assent of the dean. 5. The rector has not power to terminate or adjourn a vestry meeting after it has been convened and business is before it. This belougs to the majority of those assem- bled, himself included. Thus in Stoughton v. Reynolds (2 Strange, 1045, and For- tescue's Rep. 168), Mr. Stoughton moved for a mandamus to the chancellor of the diocese to admit him as church- warden of the Parish of All Souls. The chancellor returned that he considered Mr. Stoughton not to have been chosen, but some one else. The action was for a false return. It was found by special verdict, that the vicar had the nomina- tion of wardens. That on the regular appointed day for choosing, the vicar nominated Mr. Lowth, and the parish- ioners the plaintiff. That upon a dispute arising, whether the parishioners could choose the plaintiff, the vicar ad- journed the meeting to the next morning ; but that part of the parish stayed behind and elected him. The other party chose another person the next day. The question was, whether the vicar who presided could, ex mem motu, adjourn the election of wardens without any previous notice or consent of the meeting ; and after the persons present had elected one, could proceed to elect another. It was held by the King's Bench, that the adjournment was void. All the judges concurred. Lord Hardwicke said, that admitting the vicar had the power of presiding, it did not follow that he had the power of adjourning. In Baker & Downing v. Wood (1 Curtis' Rep. 552), Sir V6 Ecclesiastical Laio in the State of New York. Herbert Jenner comments upon this case, stating- it very fully, and says : " Most undoubtedly in such circumstances, there is no authority for the power assumed and exercised by the chairman in that case. It was calculated to put an end to the privilege possessed by the parishioners of selecting a person for church-warden, and to put a stop to all discussion at a meeting called for the purpose of an election." After citing- the case of The King v. The Commissarv of the Bishop of Winchester (7 East's Rep. 573), he says : " To the extent to which this case goes, it supports the authority of the case of Stoughton v. Reynolds, that the chairman, as such, has not the power to adjourn the vestry at any time, and under any circumstances he may think proper." Reference is then made by the learned judge to the case of The King v. The Archdeacon of Chester (1 Adol. & Ellis, 342), as decisive of certain points. A vestry being- to be held in Manchester for the election of church-wardens, notice was given that the meeting would be held at the parish church, but that if a poll was demanded, it would be adjourned to the Town Hall. • After a show of hands, a poll was demanded, and the chairman adjourned to the Town Hall, without taking* the sense of the meeting. It was held, that the proceeding was regular, no business having been interrupted, and the adjournment being part of the original appointment. So in Downing' v. Wood ut supra, the original notice ap- prised the parties of an adjournment upon a certain event occurring, and such adjournment was entirely reasonable and convenient. And so in The Queen v. Doyly (4 Perry & Davison's Rep. 58), the power to adjourn a poll to a more convenient time and place, when it has been demanded, is recognized to be in the chairman, of course the rector, when present. In such cases, the power is for the better furtherance and proper exercise of the business to be done, not the break- ing up of a business properly commenced before the proper body. The Protedant Episcopal Church. 77 6. Tt follows from these principles and authorities, as I apprehend, that a rector cannot, by withdrawing from a vestry once duly constituted, prevent its finishing business entered upon, or from entering upon business. It is quite clear, that if his continued presence is essen- tial, as an integral member, for every act while considered and until decided, so is that of one warden and five vestry- men. The power to arrest action by withdrawing is as absolute in a warden, or in vestrymen reducing the number below five, as in the rector. In The King v. Norris (Barnardiston's Rep. 385), the charter made it necessary for the mayor to be present at an assembly for admitting freemen. At such a meeting he was present, and admitted one freeman. A list of others was delivered in, when he left the assembly, and would not admit them. After his departure they were admitted, and it was held good. It is true this case is questioned in Rex v. Butler, 8 East, 393, and Rex v. Gaborian, 11 East, 87. In these cases, the assent of the mayor to the election of an officer was made indispensable. This case of The King v. Norris is cited with approba- tion in the case of Wliiteside v. The People, 26 Wendell, 643, in the Court of Errors. There are other authorities proceeding upon the principle that by unequivocal language of statute or charter, the con- sent of the head officer (the mayor generally), was made essential to the consummation of the act. These cases are stated in Justice Cowen's note, before referred to in Rogers' case, [ante, p. 73). It cannot, I think, be said, that the provision now considered positively requires the continued presence of the rector or a warden for every act, thus sub- stantially giving him a veto upon the proceedings. Upon the whole, I consider the true conclusion to be, that when once a vestry is fully assembled, a rector, a warden, and five vestrymen, it becomes a massed assembly, governing itself by the rules of common law in analogous cases ; that the right of presiding is a privilege and a duty. If vacated 78 Ecclesiastical Law in the State of Neiv York. wilfully or not from necessity, it cannot dissolve the vestry, or make its action illegal. ^ 7. The statute empowers a warden to call a meeting. But if so convened, and the rector refuse to attend, intentionally to defeat or prevent the consideration of a measure within the province of the vestry to act upon, what, if any, is the redress P In the English cases, in which the power to convene is lodged in a head officer, and his presence is indispensable to constitute the body, his obstinate refusal to convene it, or to attend, is an abuse of power, a neglect of a trust which the King's Bench will punish, and compel him to do it by mandamus, and will allow a criminal information to be filed against him.^ But even if any similar resort to a civil tribunal were pos- sible in our country, it is most earnestly to be deprecated and sedulously avoided. The authorities cited show, how- ever, in what light the law regards the wilful neglect of one intrusted with somewhat of a public duty. It is a criminal offence. I do not doubt that such a course on the part of a rector, deliberately persisted in, after notice of a meeting, and the subject to be considered, would afford ground to apply to the ecclesiastical authority for its consent to his dismissal, under the Canon of the General Convention. Questions have also, in my experience, arisen, as to the extent of the duty of a rector to put questions for the de- cision of the vestry. There can be no doubt of his obliga- tion to do this, in every case of a proposition properly within the province of a vestry to act upon. It is, on the other 1 In the Parish Hand-Book, p. 27, is a statement that the rector has sole power to call the vestry together, to preside over its deliberations, and to dissolve it. Dr. Hawks' Constitution and Canons, and Hoffman's Laiv of the Church, are referred to for this proposition. Certainly neither of the passages referred to, warrant the statement- In one particular, the statute is the reverse. A warden may call a meeting. 2 Seethe cases cited, Wilcox on Corporations, §94 ; Rex r. Gaborian, 11 East, 87, note ; Rex v. Church-wardens of St. Mathews, 3 Barn. & Adol. 907 ; Rex V. Church-wardens of St. Bartholomew, 2 Barn. & Adol. 506. The Protestant Episcopal Church. 79 side clear, that he is not houiul to put questions or resolu- tions tending to censure or criminate himself. When acts or resolutions are proposed hostile to the rector, as under the Canon respecting a dissolution of the connection, or where a vestry is authorized to present, the body acts of necessity as warden and vestrymen, not as the strict integral body. (See Hoffman's "Law of the Church," p. 323-5.) There may possibly be resolutions of neither character, as to which good sense and mutual forbearance must be the guide. In closing this important branch of the subject, I beg to remark, that clergymen too often forget the new and pe- culiar relation in which they place themselves, when the church they belong to has been incorporated under the statutes of the State. Whenever the provisions of such statutes expressly, or by necessary implication, govern his relations with a vestry, or a congregation, or otherwise, they form the absolute law for him. § 21. " Such rector, if there be one, and if not then the church-warden present, or if both the church-wardens be present, then the church-warden who shall be called to the chair by a majority of voices, shall preside at every such meeting or board, and have the casting vote." (Section 1 of Act of 1813.) Here again, the English rule is observed. The rector, the prcEses ecclesiasticus, has the right to preside. A warden only presides when there is no rector. I have entered largely under the preceding section (§ 21), upon the subject of the rights, powers, and duties of a rec- tor, in connection with a vestry, and its convening and acting. Casting Vote. The clause respecting a casting vote was examined in the case of the Church of the Atonement, in November, 1866. The author's opinion was asked upon the following case : There being no rector, the senior warden was, at a meet- ing of the vestry, called to the chair. A resolution to call the Reverend Mr. R. as rector was offered. The two ward- ens and eight vestrymen were present. Five voted in the 80 Ecclesiastical Law in the State of New York. affirmative. Five, the presiding warden included, voted in the negative. That officer declared the resolution lost. It was claimed that it had been carried, because the presiding officer had no right to vote at all, except in the case of an equal division resulting from votes not including his own. The author's opinion was, that by the true construction of the statute, a warden, by presiding, did not lose his privilege of voting as a member; and the phrase in the statute therefore meant a casting vote in the sense of a double vote. Numerous authorities were cited. As the case went to the Supreme Court, and the most of the authorities were referred to by the learned judge, the author's opinion is not further stated. The question came before the Supreme Court at Special Term (Judge Gilbert), in Remington v. The Rector, etc., of the Church of the Atonement, in January 1867. The learned judge, after stating the facts, and citing the statu- tory provisions as to the election of church-wardens and vestrymen, their becoming trustees, and the above-quoted section, proceeded : — The question then is, What is the legal signification and effect of the phrase, " and have the casting vote ?" Does the calling of a church-warden to the chair annul, for the time being, his right as a constituent member of the corpo- rate body, or absolve him from the execution of any trust or duty devolved upon him as such member ? No authority for such a proposition was cited, except the learned treatise of Mr. Cushing on Parliamentary Practice. This author does indeed, in his commentary on the Practice of Legislative As- semblies, in the absence of express regulations, sustain the portion of the relator's counsel. But he shows at the same time, that the reasons for such practice are peculiar to that kind of assembly. In the English House of Commons, the Speaker never votes but when there is an equality without his casting vote, which in that case creates a majority ; but the Speaker of the House of Lords has no casting vote. His vote is counted with the rest of the House ; and in the case of an equality, the noncontents or negative voices, have The Protestant Episcopal Church. 81 the same effect and operation as if, in fact, they were a majority. (1 Bl. Com. 181, n.) The jiraetice in the Congress of the United States, and in the Lcg-ishiture of this State, is different. Neither the Vice- President of the United States, nor the Lientenant-Governor of this State as presiding- officer of the Senate, has any vote, unless the votes be equally divided. The Speaker of the House of Representatives of the United States, and of the Assembly of this State, each have a vote. The rule of the common law applicable to corporations, however, is uni- form and well settled, and it is applicable to religious soci- eties incorporated under our law. They do not belong to the class of ecclesiastical corporations, in the sense of the English law, but are civil corporations, governed by the ordinary rules of the common law. (Robertson v. Bullions, 1 N. Y. Rep. 25.) In corporations consisting of an indefinite number, a major part of those who are existing at the time is competent to do the act. But when the body is definite (as it is in this case), there must be a major part of the whole number, for it is a special appointment. (Rex v. Varlo, Cowp. 250 ; Rex v. Bellinger, 4 T. R. 810 ; Kernan, 504 ; 6 Viu. 269 ; 2 Kent's Com. 293.) This rule of the common law has been expressly declared by statute. (2 R. S. 555, § 27 ; Horton v. Garrison, 23 Barb. 176.) As a majority of the vestry did not vote in favor of calling the relator, he was not, therefore, called or elected, unless the statute, giving the chairman a casting vote, is to be con- strued as meaning a vote only in case of a tie arising upon the votes of the other members. The plain reading of the statute does not admit of such a construction. It first vests the power of election in a body of which the chairman is a constituent member. This is a grant to every such member of a right to vote. It then contains another grant of power to tlie presiding officer, virtute officii, in the words, " he shall have the casting vote." What is the legal effect of the latter grant ? By the common law, a casting vote sometimes signifies the sin- gle vote of a person who never votes but in the case of an 6 82 Ecclesiastical Laio in the State of New York. equality ; sometimes the double vote of a person who first votes with the rest, and then, upon an equality, creates a majority by giving a second vote. (1 Bl. Com. 181, n. ; Jac. Law Die. Parliament, 7.) I think that in the statute under consideration, the term "casting vote," is used in the latter sense. (1 Bl. Com. 478, n. ; Cowp. 377.) It is true that a double vote is not allowed in corporate meetings except by express statute (Anon. LoflFt, Rep. 315; 15 Vin. 214) ; but that it ought to be allowed where the statute is clear, cannot be doubted. In Rex V. Giniver, 6 T. R. 732, a charter had been gi-anted creating a corporation, and giving tlie bailiffs and aldermen, or a major part of them, power to choose a senior bailiff. A by- law was passed, giving to the senior bailiff the casting voice, in cases where in the election of bailiffs, aldermen, or other officers, the voices should happen to be equal. The Court held the by-law void, because it was contrary to the consti- tution of the charter ; but it was tacitly conceded that if the provision of the by-law had been incorporated in the charter, the senior bailiff would have had, in the case of an equality of votes, a double vote. Lord Kenyon, Ch. J., and Lawrence, J., expressly asserted that such would have been the effect of the by-law if it had been valid. (See, also. Rex V. Bumpstead, 2 B. & Ad. 699.) It appears from the evidence that the chairman voted with his colleagues, and that the votes were equal. He must be deemed also to have given the casting vote. His declara- tion that the vote was lost, was equivalent to that, and it would not be strictly correct unless it should be so regarded. But if the foregoing views are correct, it is immaterial whether he declared the resolution lost, upon the fact that the votes were equal, or whether he gave a casting vote. Upon the vote actually taken, the resolution to call the relator failed, for lack of a majority of the votes of all the members of the vestry entitled to vote. If the chairman voted twice, it was lost by reason of a majority voting against it. It follows, therefore, that the respondents are entitled to judgment with costs. The Protestant Episcopal Church. 83 § 22. The general statutory powers which this church possesses in common with other reHgious bodies, incorpo- rated under the Act of 1813, and its amendments, are stated in chap. 16, post. There are, however, some special rules and modifications, growing out of the ecclesiastical system of the church, which require notice. § 23. Bights in Property. The distinctions between the rights of the rector and of the vestry as to the property of the corporation, or the use of the church edifice and appurtenances, is in several cases difficult to be drawn. The title, the legal fee, and the right to occupy the prem- ises, is generally and exclusively in the trustees, namely, the vestry. The right to take and appropriate all the rents and profits of laud and the income of personal estate, is in the same body. If, however, a conveyance or a bequest has been made, ap- propriating rents or income to the support of a rector dis- tinctly and exclusively, he has the right to them, unless by consent he has qualified such right. This is the case with the property given to St. Andrew's Church, Richmond. By a conveyance, the rents and profits of certain real estate were to be applied to the use and support of the rector of the church for the time being. It was considered that a call and acceptance vested the right absolutely in the rec- tor, but the opinion was also given, that a call reserving a certain sum out of such rents, for the support of services at a chapel, duly accepted in writing, bound a new rector. It was recommended to have the call, with its condition and acceptance, recorded on the minutes, and signed. A call generally specifies the salary to be paid ; and under the 8th section of the Act of 1813, it is paid out of the rev- enues of the church. This, as before shown, does not pre- vent an action to recover the amount. But the rector is, in this respect, in the same position as a sexton or organist, engaged for a fixed compensation. The funds of the church are responsible, and the vestry liable, to the same extent and no further, in each case. There cannot be, rightly, any preference in payment, should there arise a deficiency. 84 Ecdedadkal Laiv in the State of New York. There are some questions connected with the ownership and use of the church edifice and particular portions of it, of moment, and not clearly defined. By the English law, the title to the church edifice is ordi- narily vested in the parson or rector. Yet the possession and control is in the minister and church- wardens. " All persons," says Sir John Nicholls, " should understand that the sacred edifice of the church is under the protection of the ecclesiastical laws, as they are administered in these courts ; that the possession of the church is in the minister and church-wardens ; that no one has a right to enter it when it is not open for divine service, except under their permission and with their authority." (Jarratt v. Steele, 3 Phillimore's Rep. 167.) Yet a private right of property may, by such law, exist in an individual, in a portion of the edifice, such as an aisle. Thus, Bishop Gibson states, that an aisle which has, time out of mind, belonged to a particular house, and been re- paired by its owner, is part of his frank tenement, and the parson or ordinary cannot meddle with it.^ And so it was held in Cowen v. Prym, cited by Burns.^ But this right may not be conferred by any grant from an ordinary. It is attached to the ownership of a house by presumption, and it may be assumed that it does not exist in our country. By Canon 85 of the Canons of 1603, the church-wardens or questmen shall take care and provide that the churches be well and sufficiently repaired, and so from time to time kept and maintained ; that the windows be well glazed, and that the floors be kept paved, and every and all things in an orderly and decent sort, as best becometh the house of God, and is prescribed in a homily to that eff'ect. The like care they shall take that the church-yards be well and suf- ficiently repaired, fenced, and maintained, with walls, rails, or pales, as have been in such places accustomed, at their charges unto whom by law the same appertaineth. In general, the fences and inclosures are kept in order at the expense of the parishioners, who may be proceeded against in the spiritual courts for neglect of the duty. 1 Codex, p 197. ^ Ecc. Laws, vol. i. p. 362. The Protestant Episcopal Church. 85 We have before seen that the title to the propeHy of the church vests in the corporate body, so that an action con- nected with it cannot be brought in the name of the trust- ees. But they are expressly empowered to repair and alter the edifice, etc., and as agents and representatives of such corporation, the possession and control, maintaining in proper order, direction of reparation, etc., devolves upon the vestry as trustees. Such duties as the English Canon before cited impose upon the wardens or questmen, are per- formed by the vestry, through persons employed by them. In relation to property, and the more extensive term temporalities, the law, when a church has accepted an act of incorporation, is clear. Every ecclesiastical rule is superseded by the statutory rule, where one is expressed, and there is any inconsistency in the provisions. There is no inconsistency when the minister has, for religious or ecclesiastical purposes, a limited and particular possession and control. Dr. Hawks has a long and able note upon this subject. He discusses it chiefly in connection with the office of in- stitution, — as to what rights the instituted rector acquires, and what the wardens and vestrymen, the quasi patrons, relinquish. (1.) He considers that the rector may not be dismissed without the concurrence of the ecclesiastical authority under Canon 33 of 1832. (2.) That he has exclusive power over the church edifice as to granting or refusing its use for public worship. He deduced this from the nature of the pastoral charge, the cure of souls, and the absolute necessity, that he to whom the charge of watching over them is committed should teach himself, or select those who may teach in his absence. The Church interdicts other clergymen from interfering with his charge. No clergyman could, under Canon 31 of 1832, officiate in his parish without his express consent. A fortiori, the Church will not allow the laity to interfere. (3.) He then examines the question, in whom resides the power of directing the use of the church at other times and 86 Ecclesiastical Law in the State of New York. for other purposes, than during public worship on appointed days. He argues strongly from the institution office, and the delivery of the keys accompanying it, that the rector has, in these cases also, exclusive authority. It seems to me impossible to deny the force of this rea- soning. But it may be added, that the conclusion is almost equally clear, when the institution office has not been used. The deliveiy of the keys is no more than a token of the i-eception, by the parish or church, of the party as its priest and rector ; and he receives the keys of God's house as a symbol and pledge of his assumption of the office and its duties. I have frequently stated the opinion, that the call, ac- ceptance, and entering upon the duties of a rector (without any special restrictions agreed upon), as fully establishes the relation between a rector and the parish, as the institution office does. The learned Justice Emmott, of the Supreme Court, adopted this view.^ We may, I think with confidence, conclude, that whether the institution office has been used or not, the right to allow any other clergyman of the Church to officiate in the church edifice, belongs exclusively to the rector. This is English law ; this is general Ecclesiastical law. This is deducible from our canons and offices as our own Ecclesiastical law. This is not inconsistent with the stat- utes granting incorporation and vesting title and property in the vestry as trustees. The statutes contemplate tempo- ralities, and their management. A canon provides for the case of there being no rector. But the members of the congregation have rights in the matter. As members of the Protestant Episcopal Church, they are entitled to have " the office of public preaching, and ministering the sacraments in the congregation, per- formed by one lawfully called and sent to execute the same ; " ^ with the exposition of what is such a call con- tained in our standards. They have a right to demand that a minister " do so minister the doctrine, sacraments, and 1 Youngs V. Ranson, 31 Barbour, 19. " Article 23. The Protestant Episcopal Church. 87 discipline of Christ, as the Lord hath commanded, and as this Church Juith received tlie same, according to the com- mandments of God." 1 The vow of the rector becomes the right of the congregation. These rights are violated, if any one is allowed to officiate, who (I take strong cases) should teach an anti-Trinitarian doctrine,^ or the Romish doctrine concerning purgatoiy, pardons, worshiping and adoration of images or relics, or the invocation of saints.^ We may add (which was undeveloped when the Articles were framed), the dogma of the Miraculous Conception. But what is the redress ? It is quite clear that the vestry or congregation have no right to select any one without the rector's assent. And from the nature of the right, its necessary exclusive char- acter, the vestry cannot forcibly interfere, as by closing the doors. I apprehend this is one of the cases in which the application for a dissolution of the pastoral connection would be proper ; or the case might be so grievous as to demand a presentment. It is part of the English law, that for any irregularity in the conducting the services, the church- wardens may complain to the ordinary. (Burns' Ecc. Law, vol. i. p. 170; Lord Stowell, 1 Lee's Rep. 129; 2 Haggard's Rep. 25.) Use of Sacred Biiildhigs. But there is not an unrestrict- ed liberty in rector, or vestry, or congregation, to use the church edifice on other days or other occasions than for worship. By the consecration office, the edifice is separated from all unhallowed, ordinary, and common uses, and (as an interpretation of this language) is " dedicated to the service of the Lord, for reading His holy Word, for celebrating His holy sacraments, for off'ering to Him the sacrifices of prayer and thanksgiving, for blessing the people in His name, and for the performance of all other holy offices ; " the suppli- cations which follow referring to baptism, confirmation, the holy communion, marriage, the hearing and preaching of the Word in the church, also illustrate the question. All other holy offices must mean all offices of that nature prescribed or 1 The Ordering of Priests. 2 Article 1. » Article 22. 88 Ecclesiastical Law in the State of New York. permitted in the formularies, as catechizing, the burial service, the ordering of priests, etc. And what is thus enumerated defines all the cases that are permissible, and excludes everything else. Thus fairs, commencements, public gatherings for chari- table, or even religious purposes, not strictly prescribed Church purposes, are inevitably and clearly forbidden. An election of wardens and vestrymen is, in a general sense, secular, but yet is purely for Church purposes. By ac- cepting an act of incorporation, requiring an election to be held in the church, the congregation consent to such a use, and the object partakes of an ecclesiastical character. It deserves notice, that while by the English law, a school- house cannot be erected on ground consecrated for a burial- ground, a vestry-room may be, at least when no bodies have been interred. (See post, chap. 19, § 8.) Music. Some points may be considered as clear upon this subject. The selection of an organist, of singers or mem- bers of a choir, is almost universally left to the rector ; and the rubrical direction in the selections, that the minister, with such assistance as he can obtain from persons skilled in music, sliall give order concerning the tunes to be sung, indicates this to be the views of the Church, to some extent at least. It may be considered, that not only the choice of the tunes, but of the music generally, is left with the minister ; but the negative, at least, upon the selection of the singers, etc., is with him. Yet it is clear that as to salary, terms of employment, and numbers to be employed, the vestry collectively possesses the power. Contracts which affect the revenues or property of the church, can only be made by that body. In a case within the writer's knowledge, where the sub- ject of these relative rights was discussed between a rector and the other members of the vestry, an adjustment was made, by which the period of employment, the number of persons to be employed, and the salaries, were determined at a vestry meeting, and the selection of persons and other regulations was left to the rector. This is the actual. The Protestant Episcopal Church. 89 legal, and canonical position ; this, certainly, is the most expedient and ecclesiastical. The Eug-lish law leaves the erection of an organ, and the employment of organist and others, to the incumbent, at least, with the consent of the ordinaiy ; but if any expense of putting it up or maintaining it is incurred, there must be a rate levied at a vestry meeting of the parishioners. The control of the organist is with the minister. (Burns' Ecc. Law, vol. i. 374, a, b.) Assistant Minister. Assistant ministers are sometimes found necessary or impoi'tant in parishes. Not unfre- queutly, they are needed when the Mother Church has established a chapel of ease. They answer to the curates of the English law in general; in particular cases, to the coadjutors. The latter term was not limited to bishops, but extended to assistants of an incumbent, in case of insanity or infirmity. The bishop appointed a licensed curate to perform the duties.^ The principle of this regulation is found in Sub. 3 of § vi. Canon 12, of the Digest. If a minister neglect from inabil- ity, or any other cause, to perform the regular services, the bishop may open the doors to any regular minister of this Church. The curates of the English law were appointed by the in- cumbent, unless the appointment was vested in others by deed or prescription. The better opinion seems to be, that a curate cannot be removed except for cause shown, during the term of his employment.^ In the case of the Church of St. Esprit, 1864, the fol- lowing riew was presented. " Assistant ministers have been known in our Church for a long period. They are noticed in colonial charters. That to Trinity Church authorized the vestry to appoint an assistant from time to time." Upon the election of a minister unto a church or parish, a certificate is given, the form of which is prescribed in 1 Bums' Ecc. Law, vol. i. p. 429. ^ Ibid., vol. ii. p. 56, et seq. 90 Ecclesiastical Law in the State of New York. Canon 12, pai-t 1, of the Digest : " We, the church-wardens (or in case of an assistant minister), we, the rector and church- wardens, do certify that has been duly chosen rector, or, assistant minister, etc." The second section of the same Canon recognizes such a minister. And the in- stitution office provides for the institution of a rector or assistant minister. " After a careful consideration of the questions submitted, I am of opinion — "That the decision of the necessity or utility of an assistant minister to perform duties in the parish, rests in the vestry collectively, as well as the terms and period of employment, and the salary or compensation to be allowed. " That the selection of the person cannot be made without the assent of the rector. This seems plainly deducible from the able argument of Dr. Hawks, before referred to. The guidance of the parish in spiritual matters, is committed to the rector by his call. " And I am inclined to think, that the concurrence of a warden and a majority of the vestrymen, in vestry assem- bled, is necessary. The rector would thus have what is equivalent to a veto in the selection, and the vestry a con- senting voice. I regard this result as most consonant to true ecclesiastical principle, and most consistent with our peculiar laws and canons." While the statutes of incorporation vest powers over the temporalities in the vestry, as trustees, and an aggregate body, there are several points in which ecclesiastical rules and principles have an influence. There are some duties and powers, which are given more particularly to some members of this body. We have seen that there are some such in the rector. There are also some vested in the church-wardens. Church-wardens. It will be useful to advert briefly to their position in the English law. By several Canons of 1603 (18, 19, 85, 90, 111), the church-wardens or questmen are to enforce the keeping of good order during public service, to prevent idle persons fre- The Protestant Episcopal Church. 91 quenting the church-yard or porch, to keep peace during' any meeting of the congregation. In the visitations of bishops and archdeacons, they were to present the names of all who had behaved rudely or disorderly in the church. Church-wardens are described as ancient officers annually chosen, to look to the church, church-yard, and things that belong to both ; to provide what is necessary for the per- formance of divine service, and to observe the behavior of the parishioners, concerning such faults as belong to the ecclesiastical jurisdiction. They are directed, by Canon 89 of 1603, to be chosen by the joint consent of the minister and parishioners ; but if they cannot agree, then the minister chooses one, and the parishioners the other. But it is said, that of common right every parish ought to choose its own church-wardens, which right can only be overthrown by a contrary custom. (Dawson v. Towle, Hale, Ch. Baron, Hardress' Bep. 378.J Church-wardens are lay incorporations, and for many purposes they are temporal ministers and officers, as appears by many acts of Par- liament concerning the poor, maimed soldiers, etc. Of com- mon right, every parish ought to choose its own church- wardens, but a custom may be alleged. Lord Stowell (1 Lee's Rep. 129) thus states their office and duties : " I conceive that their duties were originally confined to the care of the ecclesiastical property of the parish, over which they exercised a discretionary power for certain purposes. In all other respects, it is an office of observation and complaint, but not of control, with respect to divine worship." So it is laid down by Ayliflfe in one of the best dissertations on the duties of church-wardens, and in the Canons of 1591. In these, it is observed, that the church-wardens are appointed to provide the furniture of the church, the bread and wine of the Holy Sacrament, the surplice, and the books necessary for the performance of divine worship, and such as are directed by law ; but it is the minister who has the use. If, indeed, he err in this respect, it is just matter of complaint, which the church- 92 Ecclesiastical Law in the State of New York. wardens are bound to attend to ; but the law would not oblige them to complain if they had a power themselves to redress the abuse. In the service, the church-wardens have nothing to do but to collect the alms at the offertory ; and they may refuse the admission of strange preachers into the pulpit ; for this purpose they are authorized by the Canon : but how? When letters of orders are produced, their authority ceases. Again, if the minister introduces any irregularity into the service, they have no authority to interfere, but they may complain to the ordinary of his conduct. I do not say there may not be cases where they may not be bound to interfere. They may repress, and are bound to repress, all indecent interrupting of the service by others. They have the custody of the church under the minister ; if he refuses access to the church on fitting occasions, complaint must be made to higher authorities." In Bennet v. Bonaher (2 Haggard's Rep. 25), articles were exhibited by a church-warden against an incumbent for frequent irregularities in the performance of divine service, and neglect of parochial duties. The church-wardens were to be chosen in Easter-week, and to continue in office until their successors were sworn. In an action of trespass for assault and battery, against a church-warden, the plea was, that the plaintiff had his hat on during divine service ; that he desired him to take it off, and on his refusal, took it off and delivered it to him. The Court held, that the plea was good, all concurring, except Twisden, J. (Cited Gibson's Codex, 29 ; 2 Keble, 124.) In the late case of Wall v. Lee (36 N. Y. Rep. 14), a person behaving rudely in a Roman Catholic church, the priest officiating took measures to have him removed ; and it was held, that an action of assault would not lie. He was the proper person to keep order, having charge of the church under the bishop. Force enough could be used to remove any one dis- turbing a religious meeting. Before concluding this chapter, I would call attention to the repeated efforts made in our Convention, to obtain The Protesiant Episcopal Church. 93 a change in the statute law as to the incorporation of churches. In the year 1860, a committee before appointed reported to the Convention a series of amendments. They were chieJBy these : — Requiring that not less than ten persons belonging to the congregation should assemble in order to become incorpo- rated. The persons entitled to vote at such first election were declared to be the following: — ■ (1.) "Those who have been baptized in the Protestant Episcopal Church ; or who shall have been received therein, either by the rite of confirmation, or by receiving the holy communion." (2.) " Those who have purchased or hired and paid for a pew or seat in such church, or shall have contributed in money, not less than two months next prior to such meeting, to the support of such church or the minister thereof." Some changes in detail were made of no importance to be noticed here. So persons entitled to vote at ensuing elections were those qualified for the first election, and who should have belonged to such church or congregation for twelve months immediately preceding the election. To the clause re- quiring the presence of a rector for the transaction of business, if there be one, was added, — " Provided, however, that if the rector be absent from the State, and shall have been so absent for over four calendar months ; or, if the meeting shall have been called by the rector, and he be absent therefrom, the board shall be competent to transact all business, if there be present one church-warden and a majority of the laymen ; except that no measure shall be taken for effecting a sale or disposition of the real property, nor may any sale or disposition of the capital or principal of the personal estate of such corpora- tion be made, nor any act done which shall impair the rights of such rector." 94 Ecclesiastical Law in the State of New York. In the Convention of 1862, the following report was made : — The Committee heretofore appointed upon the subject of amendments to the Act for the incorporation of churches, and instructed by the last Convention to submit the amend- ments then adopted to the bishop and standing committee of the Diocese of Western New York, and, when concurred in by them, to take measures for procuring the enactment of the same, respectfully report, — That a communication, with a copy of the act as pro- posed, was sent to the Bishop of Western New York, and by him submitted to the standing committee ; that com- mittee adopted a report of a sub-committee to the following effect : — " That in some important features the amendments pro- posed would be prejudicial to the interests of the Diocese. " In clause one of section one, it is proposed that not less than ten male persons of full age shall at any time be com- petent to meet for the purpose of incorporating themselves as a parish. Such a provision in this diocese would, in the case of many prosperous missionary stations, if it hitherto had been in force, have entirely defeated the organization of the parish. We suggest that the word six be substituted for ten. " In clause five, subdivision three, the corporators are required to elect eight vestrymen. We suggest that it be altered so as to give the option of choosing not less than four, nor more than eight ; so that in small parishes, where there may not be the larger number of suitable men to act in that station, the smaller may be adopted. " The tenth clause requires a notice to be given for two Sundays next previous to the day fixed, but omits stating the time. We suggest that ' immediately after morning service,' be added, as is done in the second clause of section first. " In the ninth clause, where it is required that eight vestrymen shall be elected, we would substitute the words, * not less than four, nor more than eight,' so as to be in The Protestant Episcopal Church. 95 harmony with the proposed alteration of the third division of the fifth clause. " The fifteenth clause allows the transaction of business, if the rector and one warden and three vestrymen are present. We suggest it would be better to require the presence of one half the vestrymen and one warden. " We advise the entire omission of the eleventh clause, that declares the board, once duly organized, competent to transact business, although members may have withdrawn, leaving perhaps less than one half of the trustees present. The adoption of that clause, it appears to your committee, would open the door to many contingent evils. " With these alterations, your committee advise the concurrence of the standing committee in the proposed amendments." The alterations thus adopted by the standing committee of Western New York, precluded the committee from taking measures to procure the adoption of the act by the legislature. An act was, however, introduced into the Senate, em- bodying these alterations, except that for a valid meeting of a vestry, a majority of the vestrymen, instead of half, as had been suggested, was required. The proposed act had also a further provision, to the effect, that the number of vestrymen might, at any time, be increased or diminished, so however, as never to be less than four, nor more than eight, by a vote of the vestry, if confirmed by a vote of the members of the congregation qualified to vote at an election for wardens and vestrymen ; and the mode of procuring and recording the vote of both vestry and congregation was provided. It is understood that the committee of the Senate to which the bill was referred, adopted the act as thus varied by the Western Diocese, except in one important particular. The fifteenth section was altered so as to read thus : " No such board shall be competent to transact any business, unless the rector, if there be one, or one of the church- wardens, and not less than a majority of vestrymen be 96 Ecclesiastical Laiv in the State of New York. present." The present act is : " Unless the rector, if there be one, and at least one of the church-wardens, and a majority of vestrymen be present." It is understood that a distinguished member of the Senate, and a member of this Convention, had prepared amendments to the bill as reported, which, while restoring the language of the present act in the clause above quoted, enabled a vestry to transact any business in the absence of the rector, after due notice to attend for some consecutive meetings. These views, it is also understood, did not meet the approval of the Bishop of Western New York, who, at the request of the standing committee, represented their views. The matter ended with the report not being acted upon. It will be seen from this statement that a material dif- ference (perhaps the only material one) between the act adopted by this Convention and that approved by the standing committee of Western New York, relates to the number of vestrymen, which, by the plan of the latter, may be eight or not less than four, with the power in the congregation, however, to increase or diminish the number chosen. It will be recollected, that in the proposed amended act adopted by the Convention of 1859, there was the same provision as to the number of vestrymen, without any clause as to the congregation changing the number. That provision seems not very important, as the number could, under the clauses as originally shaped by this Con- vention, be varied by the congregation at any annual election. In 1861 this Convention revised the act they had before approved, and strong objections were made to this provision. The committee, to which that Convention re- ferred the subject, restored the number eight, as now required by law, and the Convention of 1862 approved and adopted it. As to the other very important matter of the action of a vestry in the rector's absence, it is quite clear that the change, suggested in the report of the committee of the Senate, has never met any approval of the Convention. But The Protestaiit Episcopal Church. 97 the provisions sug-gested, where the rector is persistently absent, were reported upon favorably by the committee which submitted the act to the Convention of 1860. That committee reported a clause, that if the rector should have neglected to attend two vestry meetings, noti- fied to be held at an interval of ten days, and shall be absent at a third meeting held within three months after such neglect, and after ten days' notice of the same, served per- sonally upon him, the service so made and certified by the clerk, then such board might transact any business, one warden and a majority of the vestrymen being present. The Convention, however, did not approve of this portion of the report, and adopted a provision almost identical with that sanctioned by the Convention of 1862, as to the cir- cumstances under which, and the extent to which, the vestry might act in the rector's absence. In the Convention of 1864, some further, but no definite action was taken, and the committee was continued. In 1865, and again in 1866, the committee was continued with the powers conferred in 1863 and 1864. In the course of this proceeding, the present writer had communications with the late Bishop Delancy, and a per- sonal interview with him, in which he expressed himself strongly against the policy of any attempt to get a change in the law, and that the Church had better endure its ex- isting defects or inconveniences. He had spent some time in Albany, engaged in the passage of an act for the Parochial Trust Fund, and watched the movements as to the amend- ments of the incorporating act. His opinion was decided that we ran a great risk of changes being introduced, rad- ically affecting the ecclesiastical character and polity of the Church, or leading to an abandonment of the advantages of an incorporation.^ 1 An act is now (March, 1868,) before the Legislature upon this subject, whieli, if passed, I shall be able, I presume, to place in a note. CHAPTER V. THE DUTCH CHUKCH. § 1. Historical. The reformed religion was established in Holland in the year 1583. The Prince of Orange, on assuming the office of Stadtholder, proclaimed "that he would maintain and promote the reformed religion, and no other ; hut that he would not suffer any man to be called to account, molested or injured for his faith and conscience." The public exercise of the Roman religion was prohibited. The marked principles of doctrine and discipline, which were declared and triumphed at the Synod of Dort, were borne across the seas by the children of Holland, and pre- vailed in every colony which their bold and persevering spirit planted. The authority of the Established Church of Holland was recognized, and the care of the transatlantic churches was committed to the Classis of Amsterdam. By that body the colonial clergy were approved and commissioned.^ The earliest trace I have found of care for the minis- trations of religion, is in the year 1626, when, under the Director Minuit, two " consolers of the sick " were named, whose duty it was also to read to the people, on Sundays, some texts out of the Scriptures, together with the Creeds. The first Dutch minister in the city is generally supposed to have been Everadus Bogardus, in the year 1633, the husband of Anetjie Jans, whose memory lives in our law- books to tliis day, from the efforts of some professing to claim under her, to assail the title of Trinity Church. But in the second volume of " Holland Documents," is a very interesting letter dated the 11th of August, 1628, at the 1 Broadhead's History, vol. i. p. 614. The Dutch Church. 99 island of Manhattan, New Netherlands, written by Jonas Michaelins, from which it appears that he was the first minister in this city. The letter was found at the Hague in 1858, and a copy was sent to this country by Mr. Murphey. He considers the evidence of its authenticity to be ample. In this letter the writer speaks of having established the form of a church, *•■ and as Brother Sebastian Crol very seldom comes down from Fort Orange, because of his directorship of the fort and trade there, it had been thought best to choose two elders for my assistance, and for the proper consider- ation of all such matters as might occur." He also observes, " that although our small consistory at the most, when Brother Crol is down here, has not more than four persons, all of whom, myself excepted, have pub- lic business to attend to, yet I hope to separate the ecclesi- astical from the civil matters, so that each one will be occupied with his own matters." The letter is very interesting. The passage as to the Indians is eloquent with rehgious earnestness. I do not know that any of the learned of the Dutch Church have followed up the traces afforded by this letter. Who was Brother Crol, and who were the two others that formed the single consistory of the colony in 1628? The system in respect to the settlement of ministers is shown in the case of the Reverend Dr. Megalopensis. He was invited by the patroon of Renssaerlerwick to become their pastor. As the Classis of Amsterdam was the eccle- siastical superior of all the Dutch colonial clergy, it was necessary to obtain its assent to the arrangement. He appeared before the committee ad res externas of that Classis, and a formal call was attested by the Classis. The Am- sterdam Chamber claimed the right of approving this in- strument. The patroon asserted a power in the matter. After some difficulties and reservations of rights, the appointment was made. By one of the articles of the Freedoms and Exemptions, granted by the Directors of the West India Company, with 100 Ecclesiastical Law in the State of Neio York. the sanction of the States- General, the 19tli of July, 1640, " no other religion shall be pul)licly admitted in the New Netherlands except the Reformed, as it is at present preached and practised by public authority in the United Netherlands; and for this purpose the Company shall pro- vide and maintain good and suitable preachers, school- masters, and comforters of the sick." ^ By the seventh of the conditions offered by the city of Amsterdam to emigrants, approved by the Directors of the West India Company the 12th July, 1656, "the city was to cause to be erected about the market, or some other convenient place, a public building suitable for divine ser- vice ; also a house for a school ; and shall have a house built for a minister." " The city shall provisionally provide and pay the salary of a minister and school-master, unless their High Mighti- nesses or the Company shall direct otherwise." ^ The national religion, thus established, found an uncom- promising defender in Governor Stuyvesant. Strong, de- cided, and inflexible in his character, with great energy and vigorous sense, his antipathy to New Englanders, to the populace, and to Dissenters, was vehement, and was not allowed to sleep. In 1656 he issued a proclamation for- bidding preachers, not having been called thereto by eccle- siastical or temporal authority, from holding- conventicles not in harmony with the established religion as set forth by the Synod of Dort, and here in this land, and in the Fatherland, and in other reformed churches, observed and followed. " A penalty was imposed upon every unlicensed preacher for violating the ordinance, and upon any one who should attend." ^ Again, as respects the Lutherans, they were refused per- mission to worship in a church of their own. The Lutheran congregation at Amsterdam sent out a minister to organize a church. The Classis wrote, that the Company's intention was to permit every one to have freedom within his own 1 Documents of Colonial History. Holland Documents, vol. i. p. 123. 2 Ihid., p. 620. « Ibid., p. 617. The Dutch Church. 101 dwelling, to serve God in such a manner as his religion requires, but without authorizing any public meetings or conventicles.^ It is somewhat surprising that the spirit of intolerance was developed with greater severity against the Quakers, both in Massachusetts and the New Netherlands, than against any other class. The punishment of Hodgson for preaching at Hemp- stead, has not often been exceeded for severity or circum- stances of ignominy. The history of the struggle at Flushing in favor of Townsend, who had held meetings of Quakers at his house, is creditable to the spirit and sense of the inhabitants of that town. Tobias Feake, the schout, was degraded from his office, and sentenced. to pay a heavy fine or be banished, for framing a strong and well-written protest against the proceedings of the Governor. Again in 1663, a severe persecution was had against John Bowue, also of Flushing, who had attended the meetings in the w^oods, and finally joined the Society. He was imprisoned, fined, and proving contumacious, banished and shipped to Amsterdam. The authorities there disapproved of the proceedings of the Governor, and rebuked him for them. In a paper marked with wisdom and policy, they tell him : " That though it is our anxious desire, that similar and other sec- taries might not be found among you, yet we doubt ex- tremely the policy of adopting vigorous measures against them. The consciences of men ought to be free so long as they continue moderate and peaceable. Such have been the maxims of prudence and toleration by which the magis- trates of this city (Amsterdam) have been governed ; and the consequences have been that the oppressed and perse- cuted from every country have found among us an asylum in distress. Follow in the same steps, and you will be blessed." The letter of instructions to Andreas Druyer, com- mander and schout, of the 26th of December, 1673, after 1 Documents of Colonial History. Holland Documents, vol. i. p. 634. 102 Ecclesiastical Law in the State of Neiv York. the reconquest, directs, " that the pure, true, Christian re- ligion, according to the Synod of Dort, shoukl he taught and maintained in all things as it ought, without suffering the slightest attempt to he made against it by any other sectaries.' By the 8th Article of the Surrender to the English in 1664, the Dutch were to enjoy the liberty of their con- sciences in divine worship and church discipline. (Smith's " New York," p. 20.) It has been questioned whether this Article was not con- fined personally to the then inhabitants ; and it was urged that at any rate it was annulled when the province was restored to the English upon the peace of 1674, without any condition.^. It is stated by Lieutenant Governor Colden, in a letter of the 7th of December, 1763, that four charters had been granted by the Governors to churches, besides those of the Church of England ; all to Dutch churches. That there had been a strenuous effort made in 1759, to procure a charter for the Lutheran Church, which had been renewed in 1763, and was submitted to the Lords of Trade for decision. The Reformed Dutch churches united in the attempt.^ One of the four charters mentioned to have been granted to Dutch churches, was that to the minister, elders, and deacons of the Reformed Protestant Dutch Church of the city of New York, by Governor Fletcher, on the 11th of March, 1696, the third year of William. Another was granted to the church in Albany on the 10th of August, 1720, as appears by an Act of February 2, 1798, reciting it. From an Act of the 29th of April, 1786 (1 Greenleaf, 275), I am led to suppose that a third was to the Dutch Church at Flatbush. I am not able to trace the fourth. § 2. Charter of 1696. The charier of 1696 to the church in New York is of interest, if viewed only as an historical 1 Documents of Colonial History. Holland Documents, vol. ii. p. 618; Ibid.^ 692 ; under Colve, Governor. ■^ Letter of Governor Colden, Documents, vol. vii. p. 586. '^ Ibid. The Dutch Church. 103 document. But as the basis and muniment of the Dutch Church in many particulars, it is of much importance. It recited that the minister, elders, and deacons, and other members in communion of the said Dutch Protestant congregation, in our said city of New York, have built a church, with a cemetery, etc., in Garden Street, of said city, and are seised in fee of a certain messuage, etc., and also of the Manor of Fordham. It set forth a petition that they might be incorporated, and made capable of holding and enjoying such property by incorporation of the mem- bers of the said Dutch Protestant congregation, in our city of New York, by the name of " The Minister, Elders, and Deacons of the Reformed Protestant Dutch Church, of our city of New York." " Being willing, in favor of the pious purposes of our loving subjects, to secure to them and their successors the liberty of worshiping God according to the constitutions and directions of the Reformed Churches in Holland, ap- proved and instituted by the National Synod of Dort. "We ordain, etc., that no person within our said city of New York, in communion of the said Reformed Dutch Church, be molested or called in question for any difference in opinion in matters of the Protestant religion, who does not actually disturb the civil peace of our province." It is then stated that the Reverend Hendricus Selyns was the then minister of such church, and others named were the elders and deacons. It then provided that the said Hendricus Selyns, Nicholas Bayard (and others named) the present minister, elders, and deacons, and all such others as now are or hereafter shall be admitted into the communion of the said Reformed Dutch Church, in our city of New York, shall be from time to time, and at all times, a body corporate and politic in fact and in name, by the name of " The Minister, Elders, and Deacons of the Reformed Protestant Dutch Church of the city of New York." By the same name they were to have perpetual succession, etc. They were authorized to have, take, acquire, possess, and purchase lands, tenements, and hereditaments, or goods 104 Ecclesiastical Laiv in the State of New York. and chattels, and the same to lease, grant, alien, sell and dispose of at their own will and pleasure, as other our liege people, or any corporation or body politic within our realm of England or this our province, may lawfully do. The Juibendum is : " Unto them the said minister, elders, and deacons of the Reformed Protestant Dutch Church, of the city of New York, and their successors. In trust to the sole and only use and benefit, and behoof of them, the min- ister, elders, and deacons, and other members in communion of the said Reformed Protestant Dutch Church, in the city of New York, and their successors forever. " And for the better ordering and managing the affairs of the said corporation and successors, there shall be four elders and four deacons from time to time constituted, elected, and chosen out of the members of the said Dutch Church, inhabitants in our said city of New York, for the time, in such manner and form as is hereinafter expressed; which persons, together with the minister for the time being, shall apply to take care for the best disposing and ordering the general business and affairs of and con- cerning the lands and hereditaments herein mentioned to be granted." The elders and deacons named in the act were to con- tinue in their offices until the second Sunday of November next ensuing. Power was given to the minister for the time being, or in his absence by sickness or otherwise, to the first elder for the time being, to give order for the assembling* of the elders and deacons, to consult on the business of the church. Yearly and every year on the third Tuesday of October, at the said church, the elders and deacons of the said church, with the approbation and consent of the members of the said church for the time being, shall nominate and appoint such of their members of the said church that shall succeed in the office of elders and deacons for the year ensuing. Provision was made for filling vacancies. The presenta- The Dutch Church. 105 tiou, patronage, advowson, after the decease of the said first minister, was vested in the eklers and deacons of the said Reformed Protestant Dutch Church, and their successors forever, provided they bore due allegiance to the crown. Power was also given to the minister, with the consent of the elders and deacons, or any four of them, as need shall require, to nominate one or more able ministers, law- fully ordained according to the constitutions of the church aforesaid, to be preachers and assistants to the said min- ister and his successors, to aid in divine offices. Likewise to appoint a clerk, school-master, bell-ringer, a sexton, and such other officers as they stand in need of. Power was also given to the minister, elders, and deacons, with the consent of the members in communion of the said church, or the major part of them, to make rates or assessments upon all and every the members in communion of the said church, for the raising moneys for the yearly stipends and salaries of the aforesaid officers of the said church, and for repairing the church, church-yard, and other things neces- sary, belonging to the said church. Other provisions are made for carrying this power of rating property into eifect. By another clause, authority is given to the ministers, elders, and deacons, together with the members in com- munion of the said church, inhabitants, from time to time inhabiting and to inhabit in our said city of New York, that they or the greater part of them, (whereof the minister, elders, and deacons, and the major part of the members in communion of the said church shall be part), shall have power to choose, nominate, and appoint so many of our liege people as they shall see fit, and shall be willing- to accept the same, to be members of the said church and corpora- tion and body politic. Power is also given to make and ordain rules and ordi- nances for the good discipline and weal of the members of the said church and corporation, not repugnant to the laws of England or the constitutions and decrees of the Synod of Dort. 106 Ecclesiastical Law in the State of New York. Tlie Earl of Bellemont accused Governor Fletcher of having received a bribe for granting this charter. His statement is, that he applied to the Rev. Mr. Selyns for an inspection of the minutes of the church to prove this ; that it was refused until the sanction of the consistory was given ; that it was finally obtained, and he transmits a copy.^ The copy is not among the documents printed. But it seems satisfactorily clear that it did not make out the charge, for a short time after the Earl of Bellemont transmitted a long list of charges against Fletcher for mal- conduct, and this is not one of them.^ There is also a strong tribute to Fletcher from the church-wardens and vestry of Trinity Church, as being the principal promoter of the English Church, and speaking of the irreconcilable aversion Lord Bellemont had to him.^ The Lords of Trade heard Fletcher upon the charges, and found him guilty upon some, particularly of encour- aging piracy. Whatever may have been the offenses of which Colonel Fletcher was guilty, yet in this transaction, the church stands, upon the evidence, absolved from any complicity, and the charter as unstained in its origin as it is perfect in law. We find by this charter that the church in Garden Street had been erected. The history of these church edifices is thus stated : " The first place of worship was a loft over a mill erected in 1626, on the arrival of Dominie Jonas Michae- lius. In 1633, a barn-like structure was put up in Broad Street, between Bridge and Pearl. In 1642, Kieft erected a new church within the fort, contrary to the wishes of the people. This was of stone, seventy-five feet long by fifty wide.* This continued until 1741. The church in Garden Street was built about 1694, the Middle Dutch Church in 1729, and the North Church in 1769." In common with others, the Dutch ecclesiastical author- 1 Colonial Documents, vol. iv. pp. 426-27. 2 md, p. 433. » Ibid. p. 526. * See Father .Taqnes' Novum Belgium (New York, 1862), p. 25 and note, p. 10 ; Broadhead, vol. i. pp. 243, 336. The Dutch Church. 107 ities had a controversy with Lord Cornbiny (1704). Con- trary to the express terms of the charter of 1696, that the minister, with the consent of the elders and deacons, shoiikl nominate and appoint the school-masters, he at- tempted to forbid their exercising" their office without his license. The attempt was defeated.^ § 3. Will of Harpemling. To understand an important point in the legal position of the Dutch Church in colonial days, as well as now, the will of John Harpending must be noticed. It was dated in May, 1723, and by it he devised and bequeathed to the ministers, elders, and deacons of the Re- formed Protestant Dutch Church, of the city of New York, and tbeir successors forever, all, etc. (the Shoemaker's field), to have and to hold unto them, the said ministers, elders, and deacons of the said Reformed Protestant Dutch Church, of the city of New York, and their successors, for the pay- ment of the salary and maintenance of the respective min- ister or ministers, which, from time to time, shall be duly called to the ministry of the said church, and to no other uses. The sole management and direction of the property was to be in the elders of the church for the time being, or whom they shall appoint, " to account to the minister or ministers, elders, and deacons of the Reformed Protestant Dutch Church, of the city of New York, for the time being, and to them only." We notice that the word ministers is used. Even as early as 1652, Drisisus and Megapoliensis were colleagues at New Amsterdam. Two or more ministers to a church or congregation — a collegiate pastorate — is part of the order of the Church. Harpending was a deacon of the church in 1694, and is a grantee in a conveyance as early as 1675.^ 1 History of the School of the Dutch Church, pp. 56, 57. The author's grandfiither, Nicholas Hoffman, was a deacon in 1773, and one of the school committee. 2 Hoffman's Law of the Corporation of New York vol. ii. p. 218. 108 Ecclesiastical Latv in the State of New York. § 4. Act of 1753. All act was passed on the 12th of December, 1753, entitled "An Act to enable the minis- ter, elders, and deacons of the Reformed Protestant Dutch Church, of the city of New York, to sell and dispose of their lands in Westchester, commonly known by the name of the Manor of Fordham ; and also for g-ranting- unto them some further liberties and privileg-es, for the better man- agement of their aiFairs, and the well ordering or governing of their said church." ^ This act recited the 8th Article of the Surrender of 1664 : " The Dutch shall enjoy the liberty of their con- science in divine worship and church discipline, and their own customs concerning their inheritances." I omit the recitals as to the will of one Steenwyck, under which the Manor of Fordham is alleged to have been held, as not material to any purpose. This act recited the charter of 1696, and the erection of a church, with a cemetery, and a church-yard, and the seisin of the Manor of Fordham, with some leading points of the charter. It recites the building of another church, by means whereof they have been obliged to keep generally three, and sometimes four, ministers to perform divine service in their sanctuaries, and that they were desirous of selling such Manor of Fordham, etc. The charter of 1696 was, in every article, matter, power, and privilege, approved, ratified, and confirmed, as fully and amply as if the same were therein repeated. " And the said ministers, elders, and deacons, shall, by virtue hereof, have the care and management of both the said churches, or such others as they may hereafter think proper to build ; and provide for the ministers and officers thereof. "And on the days of election appointed by the charter, and according to their usual custom to elect, choose and appoint such further and greater number of elders, deacons, and other officers as shall be necessary and convenient ; which 1 Journals Legislative Council, vol. ii. p. 1145 ; Van Scliaick edition of the Laws, vol. i. Approved by the King in Council, 25th February, 1755. The Dutch Church. 109 said elders and deacons, etc., so to be chosen from time to time, are hereby added to, and dechxred to be, part of the said body politic, and sluill have full power to act with them in their respective stations." The annual income of lands to be held was increased to .£1000. It was made lawful for the said minister, elders, and deacons, and their successors, to alter and enlarge their said churches, and to purchase and bnild more churches, houses, and gardens, for their ministers for the time being. There was an unusual clause in this act, preventing its going into effect until it received the royal sanction. ^ It received such sanction at a council 25tli February, 1755. § 5. Constitution of 1777. The 35th, 36th, 38th, and 39th Articles of the Constitution of 1777, are hereafter quoted fully. (Post, chap. 5.) The charters to the Dutch churches were, with others, preserved in force. § 6. Act of 1783. By an Act of the 25th February, 1783, (1 Greenleaf, 629,) " to incorporate the minister, elders, and deacons, of the Reformed Protestant Dutch Church in Tap- pan, or town of Orange, of Orange County," a deed of 1729 was recited granting a lot of land, and the erection of a church for public worship therein, according to the usages and customs of the Reformed Dutch churches of the United Netherlands in Europe. The desire of the petitioners to be incorporated was then stated. And it was enacted. That S. B., the minister, T. B., etc. elders, and A. and B., deacons of the same church, and their successors, elected, chosen or appointed, according to the mode practised in, or by, the Reformed Protestant Dutch churches or congregations, be, and they are hereby, made and constituted a corporation and body politic, in law and fact, to have continuance for- ever, by the name, style, and title of " The Minister, Elders, and Deacons of the Reformed Protestant Dutch Church of the town of Orange, in Orange County." The title of the original patentees who conveyed in 1729, was declared to be vested in the corporation thus created. 1 Hoffman's Laws of the Corporation, vol. i, p. 28. The People ». Trinity Church, 22 N. Y. Rep. 44. 110 Ecclesiastical Laiv in the State of Nevj York. The second section gave tlieni power, by the name afore- said, to have, take, receive, acquire, purchase, and possess, lauds, tenements, hereditaments, and goods and chattels, as any person or persons, or any corporation or body politic could, can, or lawfully may do, to the annual value of five hundred pounds, equal to eleven hundred and eleven ounces, and one ninth part of an ounce, of Seville pillar or Mexico plate, and no more ; and the same lands, tenements, heredi- taments, goods, chattels, and appurtenances to lease, demise, alien, bargain, sell and dispose of, at their own will and pleasure. And by section 5, power was given to the said minister, elders, and deacons, and their successors, from time to time, to elect from among themselves, a president, treasurer, clerk, and such other officers as they shall stand in need of, and the same at their pleasure to remove, change, or continue. § 7. Act of March, 1784. On the 17th of March, 1784, (Laws, chap. 9,) an act was passed "to remove doubts which may have arisen respecting the charter rights of the minister, elders, and deacons, of the Reformed Protestant Dutch Church, of the city of New York, in consequence of the late invasion of the State." It referred to the charter of William, of the 11th of May, 1696, as having been sus- pended by the war : " In order, therefore, to put the said corporation in the same state of activity which they enjoyed at the commencement of the said war," it was enacted, " that the said charter, and all and singular the rights, estates, powers, liberties, franchise, and immunities, thereby granted and confirmed, and which the said corporation and the members thereof did actually hold, exercise, and enjoy, on the 11th of April, 1775, by virtue of the said charter, or by virtue of any act of the legislature of this State, whilst the same was the Colony of New York, shall continue to be and continue in full force and virtue, to all intents and pur- poses whatever, notwithstanding any nonuser or misuser thereof, or any part thereof, between the 18th of April, 1775, and the day of passing this act." The Dutch Church. Ill " The minister, elders, and deacons, who, trora an ad- herence to the cause of their country, were compelled by the British army to leave the said city, or such of them as since the evacuation of the said city, returned thereto, shall be the minister, elders, and deacons of the Protestant Re- formed Dutch Church, of the city of New York, until others shall be elected or appointed in their stead, according to the said charter." By the second section, the power given by the charter to make rates and assessments upon members in communion, to pay the salaries and stipends, repairing- the church, etc., was stated ; that such power had never been exercised, and the present minister, elders, and deacons, were willing to surrender the same. It was then enacted that such power should not thereafter be exercised, but should be abrogated and annulled. It should be observed that this power to assess was a branch of the power of taxation, which a governor could not grant by charter. The Act of Assembly of 1704, con- ferred it upon Trinity Church, which was not given by its charter of 1697. § 8. General Act of 1784. The legislature of the State, on the 6tli of April, 1784, passed a General Act for the incorporation of religious societies. It was applicable to every denomination, and prescribed one course for all.^ Its material provisions are stated, ante, chap. 3, § 2. § 9. Act of March, 1788. These provisions being found inappropriate to the Dutch churches, a statute was passed on the 7th of March, 1788, reciting that by the usages of the religious societies commonly known by the appellation of the Reformed Protestant Dutch churches or congrega- tions, the minister or ministers, elders, and deacons for the time being, have the management of the temporalities of the respective cong-regations, and the said congreg'ations cannot avail themselves of the benefit intended by the Act of 6tli April, 1784, without departing from such usage long 1 Laws, 1784, chap. 18. 2 Laws, 1788, chap. 61. 112 Ecclesiastical Law in the State of New York. established. That the congregations had petitioned the legishxture for an alteration. It is not necessary to transcribe the section enacted, as it was in substance the same as the second section of the Act of 27th of March, 1801, and the second section of the present Act of 1813. But the second section of the Act of 1801 contained this clause : " Provided, always, that nothing therein contained shall be construed in any man- ner to impair or alter the rights of any chartered churches within this State." From an Act of the 29th of April, 1786 (Laws, chap. 54, § 5), it appears, that there were trustees of the Reformed Protestant Dutch Church of Flatbush. They were author- ized to sell portions of their real estate, not exceeding six acres, for an academy. § 10. Act of February, 1792. By an Act of the 11th February, 1792 (2 Greenleaf, chap. 11), the trustees of the Reformed Protestant Low Dutch Church, at New Utrecht, in King's County, were authorized to sell certain lands, not exceeding twenty-six acres, for the advancement of the interests and prosperity of the said church. § 11. Act of February, 1st, 1798, Albany. By an Act passed February 2, 1798 (Laws 1798, chap. 7), entitled " An Act concerning the charter to the minister, elders, and deacons of the Reformed Protestant Dutch Church, in the city of Albany," it was recited, that they and their predecessors, and the other inhabitants of the city of Albany, communi- cants or members of the Reformed Protestant Dutch church or congregation, had been incorporated by letters-patent or a charter under the Great Seal, dated the 10th of August, 1720 ; that it was granted thereby, that the minister, elders, and deacons for the time being, should be the consistory of such church, and although it was granted that the consist- ory could call more than one minister to officiate in the said church, and that there should be no preeminence in that office, yet doubts had arisen whether, in case of a plurality of ministers, more than one of them could, at the same time, be a member of the consistory. That the charter The Dutch Church. 113 was also iinprovisional as to the rig-lit to elect more than four elders and four deacons. That it had been requisite to have two ministers for the church ; ' and an additional church, or place of public wor- ship, had lately been erected. It was enacted that in the case of a plurality of ministers in the said church or congregation, only the minister who shall at any time preside in the consistoiy, shall, for the time being, be considered a member of the said consistory; that they should severally be president by turns, in such manner as should be ordained by the consistory. Provided, that nothing in the act should be construed to abridge the powers and privileges of any of the ministers, respecting the exercise of Christian discipline in such church, ac- cording to the rules of Church government, ratified in the Synod of Dordrecht, in the year 1618 and 1619, and adopted by the General Synod in New York on the 10th of October, 1792. That four elders and four deacons of the said church or congregation, in addition to the present members, might be elected equally, as if it had originally been granted by the said charter that eight elders and eight deacons might have been elected ; and provision was then made as to the mode of electing. That four elders and four deacons, with the president for the time being, should form a consistory to transact business. In case the minister whose turn it shall be to preside, shall neglect or be unable to attend such meeting, it shall be lawful for any other minister of the said church or congregation, or in case all the ministers be absent, then for the senior elder of the consistory, to pre- side at such meeting*. Provided, that when a senior elder shall so preside, four elders and four deacons, exclusive of the president, shall be requisite to form a consistory. § 12. Act of Ihtli Fehruary, 1800, New York. By an act of the 15th February, 1800 (Laws, chap. 4), it was provided as follows : "An Act to amend the Charter of the Reform- ed Protestant Dutch Church in the city of New York: Whereas, the day appointed by the charter of the Reformed Protestant Dutch Church, of the city of New York, for the 8 114 Ecclesiastical Law in the State of New York. election of elders and deacons, hath become inconvenient for that purpose — " Therefore, etc., That the elders and deacons of the said church shall annually hereafter be elected on the second Thursday of January ; that the elders and deacons now in office shall continue until the third Sunday inclusive, next after the day of election ; and their successors in like manner, until the third Sunday after the first annual election day after that election. " And whereas the said charter does not provide for sup- plying* vacancies in said offices, which may happen by res- ignation or declining" an election. Therefore, That if any of the said elders or deacons shall resign, or any one elected shall decline the office for which he shall have been elected, then, and in either of these cases, an election shall be held to fill such vacancies in the manner provided by the said charter to supply a vacancy in said offices by death or re- moval." § 13. Act of April 9, 1819. By an act of April 9, 1819 (Laws, chap. 129), it was made lawful for the religious corporation in the city of New York, known as the minis- ter, elders, and deacons of the Reformed Protestant Dutch Church, of the city of New York, and their successors, to hold real and personal estate of an annual value or income not exceeding ^65,000, anything in the original charter or of any law of this State contained to the contrary notwith- standing. Provided, that the said property shall be such only as may be necessary for the purposes of the said religious incorporation. § 14. Act of April 7, 1819. General Sxjmd. By an act passed April 7, 1819 (Laws, chap. 110), the General Synod of the Reformed Dutch Protestant Church was created a body })olitic and corporate, by the name and style of the General Synod of the Reformed Protestant Dutch Church, with power to take, purchase, and hold real and personal estate, and to sell and convey the same, the yearly value not to exceed 110,000, and the same shall not be appropriated to any other than religious and charitable uses and purposes. The Dutch Church. 115 The regular members were empowered to choose a pres- ident, three directors, and a treasurer of the corporation, and to make by-laws relating to the management and dis- position of their property, the duties of such officers, and the duration of the offices. The legislature could alter and repeal this act. In the year 1839 the church in Lafayette Place was erected ; that in Ninth Street in 1837 ; and that in Fifth Avenue in 1854. A chapel was built in 1864 in Forty- eighth Street. § 15. Act of 1813. The existing law for incorporating such churches is as follows (Sess. 36, chap. 69, § 2) : " The minister or ministers, and elders and deacons, and if during any time, there shall be no minister, then the elders and deacons during such time, of every Reformed Protestant Dutch church or congregation now, or hereafter to be established in this State, and elected according to the rules and usages of such churches within this State, shall be trustees for every such church or congregation ; and it shall be lawful for the said trustees, if not already incor- porated, to assemble together as soon as they shall deem it convenient, and execute under their hands and seals, a cer- tificate certifying the name or title by which they and their successors forever, as a body corporate by virtue of this act, shall be known and distinguished ; which certificate, being duly acknowledged or proven as aforesaid, shall be recorded by the Clerh of such county ,i in a book to be by him pro- vided as aforesaid ; and such trustees and their successors shall thereupoH, by virtue of this act, be a body corporate, by the name or title expressed in such certificate. It shall be lawful for the trustees of any such church or congre- gation, elected by virtue of any former law of this State, by writing under their hands and seals, to be proved, ac- knowledged, and recorded as aforesaid, to declare their intention not to continue any longer a body corporate ; and thereupon, such body corporate shall cease, and all the estate, real and personal, held by them, shall pass to, and be 1 Register of the City and County of New York. 116 Ecclesiastical Law in the State of New York. vested in, the trustees of such church or congregation made a body corporate in the manner above directed. Provided, alivays, that nothing herein contained shall be construed in any manner to impair or alter the rights of any chartered churches within this State." There could be no necessity or convenience in changing the chartered name of the Dutch Church in New York ; and I am informed the provision of the act to that eifect was not resorted to. The consistory of the Dutch Church is analogous to the vestry of the Episcopal Church. § 16. On the 14tli of February, 1816, an act was passed (Laws, chap. 6), " Concerning the Reformed Protestant Dutch churches in Albany." It recited that the congre- gations had been divided into two congregations, and the minister, elders, and deacons of one had been incorporated under the existing law, by the name of " The Second Reformed Protestant Dutch Church in the city of Albany," and were desirous of obtaining the rights and privileges, which were granted by charter to the minister, elders, and deacons of the Reformed Protestant Dutch Church in the city of Albany. It was then enacted, that the minister, elders, and deacons of the aforesaid Second Congregation, and their successors in office, be a body politic and corporate, by the name of the " Minister, Elders, and Deacons of the Second Protestant Dutch Church in the city of Albany ; " to have and enjoy the like rights, powers, and privileges, and be subject to the like responsibilities, restrictions, and govern- ment as are granted by, and expressed in, the original charter to the said minister, elders, and deacons of the Reformed Protestant Dutch Church in the city of Albany, and the several acts of the legislature confirming or amending the same. All bond fide contracts or conveyances made by, to, or with such Second Reformed Church, in their corporate name, should be binding upon the parties and privies, the same as if made subsecjuent to the passage of the act. The Dutch Church. 117 The division between the churches of tne real and personal estate was confirmed. Each of such churches was to have four elders and four deacons, to be elected at the time and in the manner pre- scribed by the charter. § 17. Act of April, 1835. On the 15th of April, 1835, an act was passed entitled, " An Act to amend the Charter of the Minister, Elders, and Deacons of the Second Protes- tant Reformed Dutch Church in the city of Albany." (Laws, 1835, chap. 90.) The provisions of the first seven sections relate exclu- sively to that church ; and it is not deemed necessary to cite them, except that by the sixth section, the said church was to be known thereafter, in its legal corporate capacity, as "The Second Reformed Protestant Dutch Church in the city of Albany." And by the seventh section, the mode of electing the members of the consistory of the said church shall not hereafter be controlled or regulated by the charter thereof ; but the said members of the consistory shall hereafter be elected according to the rules and usages of the Reformed Protestant Dutch churches within this State. The eighth section is as follows : — § 18. " Any of the churches in this State in connection with the Reformed Protestant Dutch Church, whose tempo- ral affairs are under the management of a consistory, or board of officers, elected or chosen from such persons only as are in communion with the said church, may, if the said consistory or board so determine, at any time hereafter, confide the management and care of the temporal concerns of said church, to a board of trustees, not less than seven, nor more than nine in number." (§ 8 of Act of April 15, 1835, chap. 90.) (2.) Such determination shall be reduced to writing, and signed by the president and secretary, or clerk of such board, with the seal of the corporation (if any) thereto affixed, and shall be acknowledged by said president, before some person authorized to take the acknowledgment of 118 Ecclesiastical Laiv in the State of New York. deeds, and be recorded in the office of the County Cleric of the County, in which such church shall be situated, in the book of records relative to religious incorporations, or other proper book of records. (Ibid.) (3.) Thereupon such proceedings shall be taken for the election of the said board of trustees; and they shall be chosen, on the same notice, in the same manner, out of the same body, by the same persons ; shall have their election certified in the same manner, continue in office for the same term, their successors be elected in the like manner, and shall have, possess, and enjoy the same rights, powers, and privileg'es, and be subject to the like obligations, and shall act in concurrence with the consistory of such church in the choice of ministers, and in all respects be a board of trustees, with the same rights and powers, and have the like control of the property and temporal affairs of the church, as the board intended to be constituted by the previous sections of this act. (Ibid.) § 19. (1.) If the said board of trustees that may so be elected by any other church in communion wuth the Re- formed Dutch Church, shall deem it necessary or proper to change the corporate name of said church to that of a Reformed Dutch Church, with such further designation as may be necessary in consequence of the change effected in its organization, by the election of a board of trustees as aforesaid, they shall be at liberty so to do, and certify their determination in proper form, under the signature of the president, which shall be acknowledged by him before some officer authorized to take the acknowledgment of deeds, and be recorded in the same manner as the certificate referred to in the last section. (Ibid. § 9.) (2.) And thereupon such corporation shall be known and distinguished by the corporate name and style that may have been determined upon, and expressed in said certifi- cate. (Ibid.) § 20. Any church in connection with the Reformed Protestant Dutch Church in this State, the choice or election of the members of whose consistory is not subject The Dutch Church. 119 to the ecclesiastical rules or jurisdiction of said church, may, at any time, on the determination and resolve of said consistory to that effect, be made subject to such rules and jurisdiction; and thenceforth the choice of members of such consistory shall be made in accordance with such rules and the practice of the said Dutch Church. (Ibid. § 10.) § 21. The following rules or regulations are pertinent to the present work. They are taken from the Constitution. (Edition 1840.) The elders and deacons, together with the minister or ministers, if any, shall form a consistoiy, and the minister shall preside at all consistorial meetings ; but in the absence of a minister, the consistory may appoint one of the elders to be their president, pro tern. ; and it shall be competent to the several consistories to prescribe the mode and time of calling their meetings. If there be a plurality of ministers, they shall preside in rotation. (Art. II. § 1.) The elders, with the ministers of the Word, constitute what, in the original articles of Church government, is properly called the consistory. But as the deacons have always in America, where the congregations w^ere at first very small (see Synod of Dort, Art. 38), been joined with the elders, and wherever charters have been obtained, are particularly named, as forming with them one consistory, it is necessary to define their joint as well as respective powers. From the form of their ordination, it is evident that to the elders, together with the ministers of the Word, is committed the spiritual government of the church, while to the deacons belong the obtaining of charitable assistance, and the distribution of the same for the relief and comfort of the poor. When joined together in one board, the elders and deacons have all an equal voice in whatever relates to the temporalities of the church, to the calling of a minister, or the choice of their own successors, in all which they are considered the joint and general representa- tives of the people ; but in admitting members to full com- nmnion, in exercising discipline upon those who have erred from the faith, or offended in morals, and in choosing dele- 120 Ecclesiastical Laiv in the State of New York. gates to attend the Classis, the elders, with the miuisters, have alone a voice. No consistory shall be constituted in any place, without the previous advice and concurrence of Classis. (Ibid. 3.) Elders and deacons shall be chosen annually, and the result of such election shall be published in the church or place of worship of the congregation three successive Sabbaths previous to their ordination, to the end that all lawful objections to such ordination may be offered to, and duly considered and adjudicated by, the consistory. (Ibid. §4.) A majority of the consistoiy, regularly convened, shall be a quorum for the transaction of business ; and in a like manner a majority of ministers and elders, and also a majority of deacons so convened, shall be a quorum respect- ively. It shall be competent for the consistory, when an election shall have been omitted at the usual time, to appoint another time for that purpose on an early day, giving the like notice as herein above prescribed, and in like manner for filling vacancies which may occur. (Ibid. §4.) § 22. General Remarlcs. In considering the legal position of the Dutch Church, we are struck with the strong features of permanence and consistency which it exhibits from its foundation, particularly from its charter of 1696. And its resemblances to the frame of the charter of Trinity Church of 1697, is very marked. (1.) There was one minister recognized, and there was a right to call other ministers as assistants. So there was one rector of Trinity Church, and a right to nominate assistants. (2.) I have no doubt that under the charter of 1696, new congregations could be formed worshiping in new edifices, but retaining their connection with, and subordination to, the ecclesiastical authority of the church of the charter. That church in local habitation was the church in Garden Street, perhaps also the church in the Fort. (3.) The Act of 1753 explicitly sanctions the spread of The Dutch Church. 121 the same church, — that particular corporate church, into several congreg-ations, in distinct edifices. The governing power remained the same in substance and form. There was allowed an increase in the number of the persons constituting such governing power.^ (4.) There is another analogy to English law and to the charter of Trinity Church. It was a right clearly incident to every parish or mother church to have what are called chapels of ease. They were simply places of worship for convenience of parishioners. They were component parts of the mother church. The worshipers in the chapels had all the rights of the worshipers in the parish church, and were subject to the same duties. The rector of the parish governed the chap- els. He had curates under him, but wholly subordinate. Here I believe there is a difference. The collegiate minis- ters are on an equality, except as some presidency is conven- tionally provided. With this qualification the congregations in William Street, Lafayette Place, and Fifth Avenue, are precisely in the same legal position as the chapels of St. Paul and St. John are to Trinity Church. In each case, one corporation established them as its own branches. One corporation governs them. The worshipers in each are members of the same corporation, are entitled to votes according to the rules of the corporation, and have all the same equal privi- leges, unless modified by consent. (5.) But the English law recognized what are called parochial churches or chapels ; and here the position of Trinity Church in its contests, and of the Dutch Church, is singularly alike. These parochial chapels are those which by deed or pre- scription have become, though within the parish bounds, separated from the parish church, with a separate rector, separate rights of ministrations, baptisms, sepultures ; neither owing duty to, nor sharing in the privileges of, the parish church. 1 Dr. DeWitt's Evidence in Marselus v. The Dutch Church, 1859. 122 Ecclesiastical Law in the State of New York. Now this is exactly what Trinity Church has asserted with unanswerable force, as to all the churches separately organ- ized and incorporated in the city of New York, denying that the members of such separate organizations and corpora- tions could have a right to vote for vestrymen of Trinity Church. This is precisely what the Reformed Dutch Church insist upon. I quote from the answer of that church to the complaint of the Rev. Mr. Marselus, in the Supreme Court. It is very striking : — " Edifices were built for the accommodation of the members of the corporation, being members in communion with the said church so incorporated, and as congregations not separating themselves from the said corporation, but continuing" members thereof. They deny that the congre- gation forming the church at Greenwich, after it became a separate congregation, continued to be a part or members of the corporation of the defendants ; but that they organ- ized themselves into a separate consistory and congregation, and into a separate corporation, under the general law of the State." We may almost suppose ourselves reading the masterly argument of the late David D. Barnard in the Trinity Church case.i I am not aware that any minister of a separate church, organized and incorporated, has demanded to share in the revenues of Trinity Church, as a minister in the parish. The claim would be upon the same footing as to its legality as the claim of the separated members to vote. But in the case of the Dutch Church, the question has arisen, and been decided in the Court of Appeals. (The Attorney- General, ex rel. ; Marselus v. The Minister, etc., 1867.) The relator was the pastor of the Reformed Dutch Church situated at Greenwich, in the city of New York. This had become a separately organized church in 1803, with the assent of the Classis, the proper ecclesiastical authority, and had become incorporated under the statute of the State then in force. It had a distinct pastorate and consistory. Its 1 Letter to Senator Brooks. Albany, 1857. The Dutch Church. 128 pastors were not known or recognized as ministers of the collegiate pastorate of the chnrch under the charter. The information set forth the position of the relator as a minister of the Dutch Church generally, and pastor of the church at Greenwich by regular succession. It set out the will of one Steinwich, the questions arising upon which are not of importance here. Also, the will of Harpending, before quoted ; that a very large amount of rents and profits derived from the property had been received by the defend- ants ; that such reception was in trust for the benefit of a class of ministers, of which the relator was one, and claiming an application of a proper portion to his maintenance. The judge at Special Term held, that the devise of Harpeuding was exclusively for the benefit of the ministers of the church of the defendants. He says : " At this time the defendants being incorporated by the name of ' The Minister, Elders, and Deacons of the Reformed Protestant Dutch Church, of the city of New York,' and these words being used in the will to describe the only body for whose exclusive benefit the devise was made, and to whom alone, by express direction, there was to be any accountability for the income of the property shown, that the donor intended that body alone to have the right to the income of his property without accountability to others, whether of the same communion of faith or not." The Court at General Term concurred in this view. Another point decided at General Term was, that the devise was void under the Statute of Wills of Henry VIII., and the trusts fell with it. The plaintifl^ could not claim as cestui que trust, when a will erecting the trusts was invalid. The title to the real estate rested upon the adverse pos- session of 140 years, which was enough, whether a claim was made under a void conveyance, or without any proper title at all. The presumption of a grant from the true owner was to be made. (Harpendingtj. The Dutch Church, 16 Peters, 455; Humbert v. Trinity Church, 22 Wendell, 485.) 124 Ecclesiastical Law in the State of New York. In the Court of Appeals, the case was heard April, 1867, and decided in July of that year. The opinion of the Court, delivered by Judge Grover, may be thus summarily stated. That the claim was, that the relator, and all other minis- ters of tlie Dutch Reformed Church, engaged in ministering in churches in the city of New York, in communion with the Protestant Reformed Dutch Church, were entitled to payment of their salaries, m whole or in part, out of the income of property in the hands of the defendants, derived under the will of one Steinwich of 1684, and of one Harp- ending of 1723. If the facts of being a minister of the church designated, and officiating in a church in the city of New York, and being in communion with the Dutch Reformed Church, gave a legal right to such payment, the case of the relator was made out. He notices the difficulty of the Attorney-General sustain- ing the action upon the theory of the plaintiff, but assumes that it may be sustained. The question was, whether the trusts created by the w ills were in favor of one particular church, represented by the defendants, or whether they were in favor of all the offi- ciating clergy of the denomination, from time to time officiating in the city of New York. When Steinwich made his will, there was but one such church in the city. It was unincorporated, and known as the Nether Dutch Church. The devise of Steinwich was to the elders or overseers of the Nether Dutch Reformed congregation, within the city of New York, for the proper use and behoof of the minister of the Nether Dutch Reformed congregation, Avithin the city of New York, for the support and maintenance of their minister, ordained according to the Church orders of the Netherlands, etc. The question was not whether the will was valid, but it was, to whom did Steinwick intend to give the property, and on what trust ? The facts before stated left no doubt upon this point. The Dutch Church. 125 If the will, and the deed executed pursuant to its direc- tions, conveyed a title, that title and the trust was acquired by the parties for the benefit of this particular cong-reg-ation. If no title was acquired, no trust was created, and the rela- tor, of course, had no claim on the property or income. The charter of 1696 is then stated. After an examina- tion of its provisions, it was concluded, that this partic- ular church alone was incorporated; that by the clause, " those in communion with the Protestant Reformed Dutch Church," was meant members of this particular church; that the charter did not create a denominational corpora- tion, embracing all the churches or congregations that might exist thereafter in the city of New York. The will of Harpending of 1723 is then noticed. It followed from the previous positions stated, that if the will was valid, the title vested in, and the trust was for the benefit of this Protestant Reformed Dutch Church. It was wholly immaterial whether the will was valid or not, because if valid, the whole beneficial interest vested in this particular church. It is noticed that a colonial act authorized the corpora- tion to apply its income to the building or repairing of churches. This it had done, governing all by the same offi- cers as one church, preserving all in the same corporation. The case showed that the income largely exceeded what was necessary to pay the ministers employed, and the question was, — What should be done with the surplus ? After referring to the course in the English Court of Chancery of a charitable scheme upon the doctrine of c\j jjres, where the intent cannot be literally or fully carried out, the Court say, that our courts will only give effect to the intention of donors when intelligently expressed and in accordance with the rules of law. A substantial defect will not be supplied. The property was devised to the defendants ; and so far as the parties before the court were concerned, it must be conceded that they held the legal title. The surplus, after discharging the trust charged upon the fund, belonged to 126 Ecclesiastical Laio in the State of New York. the defendants, to be used for any purpose authorized by their act of incorporation. The judgment was affirmed. In the case of the Dutch Church in Garden Street v. Mott (7 Paige, 77), the bill was to compel a purchaser to accept a conveyance of the Garden Street property sold to him. The deed of the corporation of New York to Bayard, and the deed by him to Van Cortlandt and others, of February, .1691, for the use of the minister, elders, and deacons of the Low Dutch Church, and of their successors forever, and for no other use or uses. The charter of 1696 is stated, and that it was granted to enable the corporation to hold this property to the uses for which it had been con- veyed, and by which it was confirmed to them. The pre- sumption, after the lapse of one hundred and fifty years, was, that the trustees. Van Cortlandt and others, had con- veyed the legal title. But independently of this presump- tion, the Act of 1801 (1 K. L. 1801," p. 339, § 4) was operative to transfer the legal estate from the heirs of the trustees to the church when incorporated, although no conveyance had been executed. There could be no doubt that previous to the separation of the complainants from the collegiate churches, in 1812, the legal, as well as equitable title, was vested absolutely in the corporation, and no violation of the trust could revest any title in the heirs of Bayard, or of the original timstees, although a breach of trust might form a proper ground for an application by the corporators, or by the Attorney-Gen- eral, to compel the due execution of the trust. The complainants became separately a distinct church, and were separately organized and incorporated in 1812, and the corporation of the collegiate churches gave them a lease for 999 years with certain restrictions and conditions. After the destruction of the edifice by fire, in 1835, the absolute title in fee was conveyed in consideration of the sum of 1100,000. The rule of the common law giving corporations the unlimited right of alienation, and the restrictions upon the alienation of Church property by statutes in England, were The Dutch Church. 127 noticed. The supposition that these restrictions existed here, led to the enactment making the sanction of the Chancellor necessary to a sale. There was no doubt that the intention of the legislature was to give to every relig- ious corporation an unlimited power to convey any real estate held by them in trust for the corporators, provided the previous consent of the Chancellor, and a direction for the proper application of the proceeds was obtained. I am not aware of anything else in our laws or decisions peculiarly applicable to the Dutch Church ; and I have deemed it useful to comprise in one chapter all that I have found so peculiar. At the meeting of the General Synod of the Church in June, 1867, an elaborate and able report was submitted, upon a proposition for a change of the ecclesiastical and corporate name of the church. It closed with a series of resolutions. The first was : That the General Synod pro- poses to the Classis, the amendment of the first section in Article 5, chap. 2, of the Constitution, by appending to it the following sentence : " The body thus formed shall be called the General Synod of the Reformed Church in America." Embarrassed with considerations arising from the fre- quent use of the term, " Reformed Dutch Church," in the Constitution and Formularies, and coming to the conclusion not to expunge the term absolutely, the following resolu- tions were adopted : — " 2. Resolved, That the Synod propose to the Classis, the adoption of the following prefatory note, with a view to its incorporation into the Constitution. " In the year 1867, the Reformed Dutch Church which is named in the following pages, dropped from its ecclesias- tical name the word 'Dutch,' which was first formally assumed therein in the year 1792, and added the words ' in America,' so that the said church might thenceforth be known as the Reformed Church in America ; yet in order that the absolute identity of the Reformed Church in America with the Reformed Dutch Church might be subject 128 Ecclesiastical Law in the State of New York. to no possible doubt or dispute, it was also ordained that the epithet ' Dutch ' should be retained in all those places in the Constitution in which it had previously been used, but should be inclosed in brackets, to indicate the purpose of the church to discourage the ecclesiastical and popular use of that word as a part of its name." (2.) A third resolution was as follows : — 3. "Resolved, That the General Synod proposes to the Classis, the further amendment of the Constitution by prefixing thereto a title in the terms following : ' The Constitution of the Reformed Church in America, known for a time as the Reformed Dutch Church, and also desig- nated in the Act of Incorporation, passed by the legislature of 'New York April 7, 1819, as the " Reformed Protestant Dutch Church," embracing- the Catechism, the Compendi- um, the Confession of Faith, the Canons of the Synod of Dordrecht, and the Liturgy,' " A committee was appointed to consider the details of the civil legislation which the proposed change of name may make necessary, and to report on the same at an adjourned meeting of the Synod. In the historical notice which accompanied these resolu- tions, the fact was stated, that the designation Dutch was unknown to the Hollanders, who would be as slow to call themselves Dutch as to call themselves Russians. The Church of Hollanders was of Nederlanclie, Particular con- gregations might be termed Nederduitsche. The Hollanders who brought their Church to this country were members of the " Reformed Church of the Netherlands." The change took place after the English conquest. The charter to the church in New York is referred to. It will be seen that the other charters, and the statute of 1753, use the title " The Reformed Protestant Dutch Church." [Ante, § 4.) Tliis view of the original true title of the church is con- firmed by the Article of Freedoms and Exemptions of 1640, before cited. {Ante, § 1 of this chapter.) The Dutch Church. 129 THE TRUE REFOBMED CHURCH. The churches or cong-regations in this State, in connec- tion with the church which has styled itself " The True Reformed Church in the United States of America," may incorporate themselves in the mode prescribed in and by the second section of the act entitled, " An Act to provide for the Incorporation of Religious Societies," passed April 5, 1813. § 1 of Act of April 21, 1825. Laws, chap. 303.) CHAPTER VI. THE PRESBYTERIAN CHURCH. In chapter 1, I have stated the history of the Acts of the Colonial Assembly passed in 1693, and subsequent years, for settling a ministry in four counties, and the efforts of the Presbyterians, particularly at Jamaica, to have the amount levied under those laws, applied to the support of a minister of their own. These efforts were finally success- ful at that place, and through a judicial decision. It was shown, that with the exception of the violent aud unwar- rantable conduct of Lord Cornbury, the course of the Governors, particularly of Governor Hunter, had been mod- erate and legal. It was also noticed, that while charters, four in number, had been granted to Dutch churches, none had been given to any other denomination. In 1719, 1721, and 1759, applications were made to the Governors, on behalf of Presbyterians in the city, for acts of incorporation. That of the last date was referred by Governor Delancy to the Lords of Trade. In July, 1765, they wrote to Governor Moore, that his Majesty had been pleased to refer to them for consideration the petition of the present ministers of the Presbyterian Church in the city of New York, praying to be incorporated by a charter under the seal of the province, for the purposes set forth in such petition. Referring to a similar application made to Lieutenant Governor Delaucy, and to the proceedings had thereon, they required him to submit the petition to the Council and to report in the fullest manner, the present state of this Protestant establishment, the proceedings upon the former petition, and the reasons why it was not com- The Presbyterian Church. 131 plied with, and his opinion whether there were reasons against granting the request.^ In Jnly, 1767, the Lords of Trade made a report to the Committee of the Privy Council on Plantations, stating, that they had considered the petition of the ministers, elders, deacons, and trustees of the Presbyterian Church in the city of New York, for a charter to create them a body politic and corporate, according to the Westminster Con- fession of Faith, catechisms and directions. They state that many proceedings had been had before the Council in New York, touching an application there for such a charter. In consequence they had directed the Governor to report such proceedings, and his views upon the whole subject. That he had done so, and that a copy of his report was annexed.^ That it stated a point of great weight and importance, namely, whether his Majesty, consistent with the obligation he is under by his coronation oath, founded on the Act of the 5th of Queen Anne, cap. 5, entitled " An Act for securing the Church of England as by law established," could create such an establishment in favor of the Presbyterian Church as was now requested. They proceed : " That is a question of too great importance for us to decide, but we are of opinion, that independent of this objection, it is not expe- dient, upon principles of general policy, to comply with the prayer of the petition, or to give the Presbyterian Church of New York any other privileges or immunities than it is entitled to by the laws of toleration.^ On the 4th of May, 1775, the Earl of Dartmouth writes to Governor Tryon thus : " The only difficulty or doubt which has occurred is, whether such charters would not have an effect to create an establishment inconsistent with the principles of the law of England ; and it was the more necessary to attend to this, as it was first started by the Council of New York, upon the application made in 1766. If, however, upon consideration of the cases in which the request was now made, the law servants of the King in the 1 Colonial Documents, vol. vii. p. 346. ^ i have not been able to find it. ^ Colonial Documents, vol. vii. p. 943. 132 Ecclesiastical Law in the State of New York. Province and the Council shall be of opinion that they are free from any difficulty of this nature, it was the King's pleasure that he do grant such charter." ^ What would have been the result of this relaxation of the former view of the Lords of Trade, we can only conjecture. The strife of the Revolution quickly ensued, and prevented any further effort for the attainment of the object. It appears that as early as 1719, a piece of ground was conveyed to Dr. John NichoU, Patrick McKnight, Gilbert Livingstone, and Thomas Smith, and a church was built upon it. This was the church in Wall Street, west of Nas- sau Street, as is shown upon Lyne's map of 1728, and a church continued on that site until 1848. On the 10th of March, 1730, the persons in whom the legal title was then vested, conveyed the property to the moderator of the General Assembly of the Church of Scot- land, the commissioner thereof, the moderator of the Pres- bytery of Edinburgh and others, as a Committee of the General Assembly. On the 15th of August, 1732, the Church of Scotland, by an instrument, under the seal of the General Assembly, and signed by various members and officers, declared, that it should be lawful for the Presbyte- rians then residing, or that should thereafter be resident in or near the city of New York, or others joining with them, to convene in the aforesaid church for the worship of God, and for the dispensation of the gospel ordinances, fully and freely at all times, they maintaining such edifice and appur- tenances at their own charge.^ Between 1732 and 1766, a conveyance must have been made by the trustees in Scotland to trustees in New York. On the 25th of February, 1766, a conveyance was made by the Mayor, Aldermen, and Common Council of the city of New York, to John Rodgers and Joseph Treat, present ministers of the English Presb}i;erian Church, in the said city, William Smith and others, the then elders, John Stephens and Peter Riker, the then deacons, and Thomas 1 Colonial Documents, vol. viii. p. 572. 2 Smith's History of New York. The Preshi/tericm Church. 133 Smith, Peter R. Livingston, and others, the present tnistees of the said church. The petition of such parties is recited. It is stated, that although the petitioners were already pos- sessed of a convenient and spacious edifice for the public worship of Almighty God, yet by their great growth, that building was rendered incapable of containing' their congre- gation, and the cemetery was too small for the bui'ial of the dead. They refer to the grant of the burial-ground to Trinity Church, and of a number of lots to the Reformed Dutch at a reasonable rate, and they suggest the triangular piece of ground adjoining the Vineyard, as suitable for their purposes. The grant was made to the petitioners as trustees, upon condition of their erecting thereupon an edifice or church for the worship of Almighty God, or to use the same or part thereof for a cemetery ; and they shall not appro- priate, apply, or convert the same forever thereafter to private secular uses. There was reserved an annual rent of forty pounds to the corporation. There was a clause of reentry upon breach of either of these conditions. Between the 6th day of April, 1784, and the 31st of August of that year, the church was incorporated by the name of the First Presbyterian Church of the city of New York, under the General Act of said 6th of April, 1784. On the 31st of August, 1784, the survivors of the trustees in the grant of 1766, conveyed the premises ad- joining the Vineyard, to the corporation of the First Pres- byterian Church in the city of New York. By an Act of March 6, 1793 (3 Greenleaf, 51), the cor- porations of the First Presbyterian Church in the city of New York was authorized to take and hold real estate, to a value not exceeding the sum of six thousand dollars annually. On the 23d of September, 1795, the corporation of New York released to the corporation of the First Presbyterian Church in the city of New York, the sum of eighteen pounds, fifteen shillings, part of the rent reserved in the deed of 1766. 134 Ecclesiastical Laio in the State of Neio YorJc. An act was passed on the 17th of February, 1809, en- titled, " An Act for the separation of the First Presbyterian Church of the city of New York." It states that the body possessed three places of public worship, and that a separa- tion would be conducive to their interest. It was enacted, that it should be lawful for the said church to become two or more distinct and separate congregations, and to incor- porate themselves severally under the act to provide for the incorporation of, etc., but not without the consent of the majority of the pew-holders and stated hearers. They were authorized to execute all proper conveyances, to vest part of the real and personal property in trustees. The approval of pew-holders and stated hearers was obtained, and a division took place. It appears that the First Presbyterian Church became again incorporated, and by the same name, on the 1st of May, 1809, under the General Act then in force of 1800. The members of what was commonly known as the Brick Church, erected on the site adjoining the Vineyard, became also incorporated at the same time, with the title of " The Corporation of the Brick Presbyterian Church, in the city of New York." And by an indenture of the 29th of May, 1809, the premises were conveyed by the trustees of the First Presbyterian Church to the trustees of the Brick Church. The third of the churches mentioned, appears to have been what was known as the Rutgers Street Church. In the year 1837, negotiations were had for the sale and surrender to the corporation of New York, of the lease held by the Brick Church. Application Avas made to Vice-Chan- cellor McCoun for his approval, under the statute. He considered that a conditional order could be made without an actual contract being entered into with any intended purchaser. The Court could approve and confirm a sale on the terras suggested, by a subsequent order. Nor was it a decisive objection that the church had not selected a new site for their edifice. The objections also of pew-holders, could not avail against The Presbyterian Church. 135 the application. The order coukl be made without prejudice to the legal rights of pew-holders in the new building. But the special character of the deeds of transfer to the vault-holders, gave them an interest in the land, and not merely a qualified privilege to construct a vault. The en- joyment was restricted to below the surface. There could be no building above ground. The petition was dismissed. In 1854, the opinion of Judge Bronson, Mr. Charles O'Connor, and Mr. George Wood was taken, and they con- curred in holding, that the premises could be sold for any purposes which were of a public nature, such as a mint, post-office, or court-house. The uses for which an aliena- tion was prohibited were jj^ivate, as well as secular uses. In 1856 the property was sold by the church to private individuals. The approval of the Supreme Court was ob- tained for a sale, subject to the restrictions in the grant, in February, 1853. The case of The People v. Wood and others, commission- ers of the sinking fund, was, in the course of the proceed- ings, brought before Mr. Justice Duer and the present writ- er. Some points of importance were agreed upon. That although the commissioners of the sinking fund were entitled to the rent reserved in the grant to the church, this had not carried any right of property, or other right than perhaps an action for breach of covenant to pay rent. The right to reenter for breach of the covenant not to alien for certain purposes, did not pass by a grant of the rent. The title — the possibility of reverter, if it might be so termed — remained in the corporation. But the assent of the Commissioners of the sinking fund was highly desir- able if not essential. The cause did not come to a decision, in consequence of the point being started, that the assent of one board was passed in one year, and of the other in a succeeding year. The Supreme Court subsequently held this to be illegal. The sale was finally consummated. The church conveyed subject to the covenants. The corporation released and confirmed to the purchaser, and the commissioners of the 136 Ecclesiastical Law in the State of New York. sinking fund agreed to and ratified it. The assent of the vault-holders was also obtained. Act of 1867. A General Act was passed on the 30th of March, 1867 (Laws, chap. 206), by which the Presbytery of New York (of which the Reverend John M. Krebs is stated clerk), in connection with the General Assembly of the Presbyterian Church in the United States of America, having designated from its membership the following per- sons, namely, John M. Krebs, etc., etc., citizens of the United States, to be trustees in their behalf, the said trustees and their successors to be from time to time ap- pointed by said Presbytery, are hereby created a body politic and corporate by the name of " The Trustees of the Presby- tery of New York." (§ 1.) The said Presbytery shall, in law, be capable of taking for religious and charitable purposes, by gift, devise, be- quest, grant, or purchase, and of holding, conveying, and otherwise disposing of the same from time to time, all real and personal estate now held for the benefit of the said Presbjiiery, or which hath been or may hereafter, for the purposes of the said Presbytery, used in the promotion of its charitable or religious purposes, be given, devised, bequeathed, or granted to the said corporation by their name, or to the said Presbytery, or for the charitable and religious uses thereof, or which may in any manner have accrued, or shall accrue from the interest, income, or use of such real or personal estate. Provided, that the yearly income received from the property of the said corporation shall not exceed ten thousand dollars. (Ibid. § 2.) The management and disposal of the affairs and i^roperty of the said corporation shall be in the hands of the said trustees and their successors in office from time to time ; and which trustees shall hold their offices at the pleasure of the said Presbytery ; and all vacancies shall be filled by them. (Ibid. § 3.) The said corporation shall possess the general powers, rights, and privileges, and be subject to the liabilities and provisions contained in the 18th chapter of the first part Tlie Presbyterian Church. 137 of the Revised Statutes, so far as the same are applicable ; and also subject to the provisions of chapter 360 of the Laws of 1860. (Ibid. § 4.) The last-mentioned act restricts the power to devise to one half the person's property in certain cases. CHAPTER VII. THE FRENCH CHURCH. § 1. By an act of the 19th June, 1703, the ministers and elders for the time being, of the French Protestant Church in the city of New York, were authorized to build a larger church. The act enabled thera to sell the church and ground occupied by them in Petticoat Lane. The proceeds were to be applied to the purchase of a larger piece of ground within the city, and to erect a church and dwelling-house for a minister. The habendum was, " To have, hold, and use for the use and interest aforesaid, by the name of the Minister and Elders of the French Protestant Church in the city of New York, to them and their successors forever." The fourth section authorized them to collect, from among the members of the congregation, the sums required for the maintenance and reparation of the church, dwelling- house, and other things appertaining thereto. But no one was compelled to contribute. CHAPTER VIII. THE LUTHERAN CHURCH. As early as 1673, certain members of the Lutheran Church petitioned the Governor (Anthony Colve), in their own, and in the name of the congregation of the Augs- burg Confession at William staat (Albany), for the free exercise of their religious worship. The petition was granted, on condition of their conducting themselves quietly, without giving oifense to the congregation of the Reformed Religion, which is the State Church.^ In Lieutenant Governor Colden's letter to the Board of Trade, of December, 1763, he adverts to the ftivor felt towards the Lutheran congregations, and their efforts to obtain a charter of incorporation in 1759. He states the Council had agreed to grant it, but Governor Delancy, find- ing many similar applications from other dissenting congre- gations, opposed it until the views of the Lords of Trade were ascertained. Such applications had been renewed, and were also submitted. The edifice was, it appears, at first without the gate, but in a petition of the church (about 1684, as I judge), it is stated, that they had been obliged by Governor Colve to tear the edifice down. They had got a patent for a piece of ground within the gate, which was mislaid.'-^ The edifice long remained on the corner of Broadway and Rector Street. In the case of Knistern v. The Lutheran Churches of St. Johns and St. Peters (1 Sandf. Ch. Rep. 440), the history of the Lutheran Churches in this State, and the statement 1 Colonial Documents, vol. ii. p. 617. 2 Documentary History of New York, vol. iii. p. 484. 140 Ecclesiastical Law in the State of New York. of the peculiar dogmas of faith absohitely held, are to be found at length. It is shown that the great formulary is the Augsburg Confession of Faith. The Lutheran missionary, Dr. Muhleubergh, writes in 1750, that the Lutheran Church in the city of New York, had been built and dedicated with their own mites and friendly aid from Europe, for an Evangelical Lutheran congregation, according to the unaltered Augsburg Con- fession. (1 Sandf. Ch. Rep. 521, note.) In Miller v. Gable (2 Denio, 492), the doctrines of the Lutheran and Calvinistic Churches are also discussed, with historical notices of the churches in this city. CHAPTER IX. THE ROMAN CATHOLIC CHURCH. § 1. The proceedings in the Colony in respect to Roman Catholics are very striking. Rohert Livingston, in a letter to Governor Fletcher of the 14th of February, 1695, speaks of the generosity of the people to a papistical governor who never did, or meant them good, and of their neglect of one of tlieir own religion with whom Heaven had blessed them.i In 1696, a list of the Roman Catholics and reputed Papists in New York, was transmitted to England, with a statement that they had all been disarmed. The Mayor, by command of the Governor, made a return of all in the city, amounting to ten. 2 The instructions to the Earl of Bellemont of 1667, di- rected him to permit liberty of conscience to all persons except Papists. On the 31st of July, 1700, an act was passed against Jesuits and Popish priests. It enacted that every Jesuit and seminary priest, or ecclesiastical person, made or ordained by any authority derived or pretended to be de- rived from the Pope or See of Rome, then residing- within the province, should depart therefrom on or before the 1st of November ensuing. Any such person preaching, or teaching others to say popish prayers, masses, granting of absolution, or celebrating or using any other of the Romish ceremonies and rites of worship, shall be deemed an incen- diary and disturber of the public peace, and an enemy to the true Christian religion. Severe penalties were imposed upon any Jesuit or Popish 1 Colonial Documents, vol. iv. p. 98. 2 /jjy. p, igg. 142 Ecckbiastical Law in the State of New York. priest remaining in the province. An exception was made as to shipwrecked persons, but they were compelled to leave within a limited time. § 2. It appears that St. Peter's Church and St. Patrick's Cathedral had been incorporated jointly under the Act of 1813. An act was passed April 11, 1817 (Laws, chap. 205), stating this fact, and the desire of the petitioners that dis- tinct acts of incorporation should be passed for each of them, for which the sanction of the legislature seemed necessary. It was enacted, that the members of the religious soci- ety of Roman Catholics, belonging to the congregation of St. Peter's Church, in the city of New York, should be, and were thereby constituted a body corporate and politic, by the name and description of " The Trustees of St. Peter's Church in the city of New York." They were authorized to take and hold all that portion of the joint property which belonged to such church, whether given, granted, or devised to the same, or to any other person for its use. Also to take and hold lands and tenements, the annual income of which should not exceed $10,000, whether the same be by gift, grant, or bargain and sale, and to purchase and hold personal estate, whether by gift, grant, or bargain and sale, bequest, or otherwise ; and to give, grant, devise, lease, or dispose of as they should think best for the advantage of the church. Provided, that nothing should authorize them to sell real estate without the sanction of the Chancellor, according to the eleventh section of the act "to provide for the Incorporation of Religious Societies." The Roman Catholic Bishop in the city of New York, for the time being, was to be ex officio the president of the board of trustees ; but in case of his death or absence, the board could appoint a chairman pro tempore. The trustees were to be nine in number. Provision was made for the first election, and division into classes, holding for one, two, and three years respectively. The elections for trustees after the first election, were to The Roman Catholic Church. 14 o be held on Easter-Monday in every year, between the hours of eleven o'clock in the forenoon and three o'clock in the afternoon, by ballot, at such place and under such directions as the board of trustees, or a majority of them, should agree upon ; whereof due notice was to be given three Sun- days successively in said church, during divine service, and immediately preceding such election. Three tr York. Peter's, at the call of any two of such trustees, to meet together for the purpose of transacting the business of such society ; of the time and place of such meeting, notice shall be given to all the said trustees, at least one day before such meeting, except in cases of emergency. If five of the trustees attend, they shall form a quorum or board, and shall have power, by a majority of votes, to make, ordain, and establish such rules, orders, and regulations for the man- agement of the temporal concerns of the said congregation, and for the government of the schools attached to the said church, as they should deem proper. Provided, that the same be not repugnant to the laws or constitution of this State or of the United States. Provided, also, that the trustees shall not enter into any expenses other than the ordinary and necessary contingent expenses without the con- sent of the trustees of St. Patrick's Cathedral in the city of New York, until the final extinguishment of the debts of the church. By the seventh section, in case of a dissolution by reason of any non-user, the society might be re-incorporated under the law of the State, and all the property should vest in the new corporation. By the eighth section, the joint incorporation of St. Peter's Church and St. Patrick's Cathedral was dissolved. But all grants or gifts made for the benefit of St. Peter's Church in the city of New York, and all acts of the legisla- ture for the benefit thereof, were ratified and confirmed. An act was passed April 14, 1817 (Laws, chap. 239), incorporating separately " The Trustees of St. Patrick's Cathedral, in the city of New York." Its provisions are the same as the Act of April 11, just cited. § 3. By an act of April 3, 1821 (Laws, chap. 237), the act as to the congregation of St. Peter's Church, of April 11, 1817, was amended as follows : From and after the passing of this act, it shall be the duty of the joint treas- urer, for the time being, of St. Peter's Church and St. Patrick's Cathedral, duly appointed under the by-laws of such corporations, to keep a book to register all the names The Roman Catholic Church. 145 of electors qualified to vote at elections for officers under the act hereby amended ; and it shall be the duty of the said joint treasurer to give to every person duly qualified, a certificate of such fiict, which shall bear date within six months prior to the election, and shall be full and conclusive proof of the qualifications of the person named therein to vote at such elections. By the second section, a penalty was imposed for refusing the certificate without sufficient and legal cause. " And whereas, under the act hereby amended, notice of the said elections is required to be given in the church, and during divine service ; and whereas such arrangement is offensive, and disturbs the harmony of divine worship, therefore — " Be it enacted, that the notification of all elections under the said act hereby amended, shall be in writing, signed by the Catholic Bishop for the time being, the president ex officio of the board of trustees of said church, and shall be put up iu a conspicuous place in the porch of the said church, for three Sundays successively immediately preced- ing such election." § 4. We may here notice the Act of April 9, 1855 (Laws, chap. 230) : " An Act in relation to conveyances and devises of estates for religious purposes." It was enacted, that no interest in property, real or personal, should be con- veyed, or descend to any ecclesiastic or his successor ; that none but legally incorporated relig-ious societies within this State could take grants, or devises of real property, dedi- cated or appropriated, or intended to be dedicated or appro- priated, to the purposes of religious worship. Other provisions were made as to property theretofore given to any ecclesiastic for such purposes, and its vesting iu the church or congregation when incorporated, provided it became incorporated before the death of the person iu whom it was vested. There are other provisions of this statute not deemed necessary to be cited, as the act itself was repealed by a statute of April 8, 1862. (Laws, chap. 147.) 10 146 Ecclesiastical Law in the State of New York. Au important statute was passed ou the 25tli of March, 1863. It is entitled "An Act supplementai7 to the Act entitled ' Au Act to provide for the Incorporation of Relig- ious Societies,' passed April 5, 1813." § 5. Act of 1863. (1.) " It shall be lawful for any Roman Catholic church or congregation, now or hereafter existing in this State, to be incoi'porated according to the provisions of this act." (§ 1 of an act passed March 25, 1863.) (2.) " The Roman Catholic Archbishop or Bishop of the Diocese in which such church is erected, or intended so to be, the Vicar-General of such Diocese, and the pastor of such church for the time being, respectively, or a majority of them, may select aud appoint two laymen, members of such church, and may, together with such laymen, sign a certificate in duplicate, showing the name or title by which they and their successors shall be known and distinguished as a body corporate, by virtue of this act ; which certificate shall be duly acknowledged or proved in the same manner as conveyances of real estate." (Ibid.) (3.) '' One of such certificates shall be filed in the ofiice of the Secretary of State, and the other in the office of the Clerk of the County in which such church may be erected or intended so to be ; and thereupon such church or con- gregation shall be a body corporate, by the name or title expressed in such certificate, and the persons signing the same shall be the trustees thereof." (Ibid.) (4.) " The successors of any such Archbishop, Bishop, Vicar-General, or Pastor, respectively, for the time being, shall by virtue of his office, be the trustee of such church, in place of his pi'edecessor, aud such laymen shall hold their office respectively for one year, and whenever the office of any such layman shall become vacant by death, removal, resignation, or otherwise, his successor shall be appointed in the same manner as herein jjrovided for his original selection." (Ibid.) (5.) " The trustees of every such church or congregation, and their successors, shall have all the powers and authority granted to the trustees of any church, congregation, or The Roman Catholic (JImrch. 147 society, l)y the fourth section of an act entitled, ' An Act to provide for the Incorporation of Religious Societies,' passed April 5, 1813 ; and shall also have power to fix or ascertain the salary to he paid to any pastor or assistant pastor of such church." (Ibid. § 2.) (6.) " But the whole real and personal estate of any such church, exclusive of the church edifice, parsonage, and school-houses, together with the land on which the same may he erected, and burying-places, shall not exceed the annual value of income of three thousand dollars." (Ibid.) (7.) " Nothing herein contained shall be held or taken to repeal, alter, or impair the effect of chap. 360 of the laws of 1860." [That law of 1860 prohibited a devise or bequest by a person having a husband, or wife, child, or parent, to any benevolent, charitable, literary, scientific, religious, or missionary society or corporation, in trust or otherwise, of more than one half part of his or her estate, after the pay- ment of his or her debts ; and such devise or bequest shall be valid to the extent of one half and no more. (§ 1.) ] (8.) All laws and parts of laws inconsistent with such act were repealed. (§ 2.) § 6. The trustees of any church incorporated under this act, are required to exhibit upon oath to the Supreme Court in the judicial district in which such church is situated, and in evei*y three years, an inventory of all the estate, real and personal, belonging to such church, and of the annual in- come thereof; which inventory shall be filed in the office of the Clerk of the county in which such building is situated. (Ibid. § 3.) § 7. Whenever any church incorporated under this act shall be dissolved by reason of any non-user, or neglect to use any of the powers necessary for its preservation, or otherwise, the same may be re-incorporated in the mode prescribed in this act, within six years from the date of such dissolution ; and thereupon all the property, real and personal, belonging to such dissolved corporation at the time of its dissolution, shall vest in such new corporation. (Ibid. § 4.) 148 Ecclesiastical Law in the State of New YorJc. § 8. All conveyances to any church incorporated under this act, of any real estate heretofore approi)riated to the use of such church or the congregation thereof, or intended so to be, are duly confirmed and declared valid. In the case of McCaughall v. Ryan (27 Barbour's Rep. 376), there was a devise made in 1862, as follows : " I give, devise, and bequeath all the rest and residue of my personal estate, and all my real estate, which I shall own or be pos- sessed of at the time of my death, unto the Right Rev. Bishop Hughes, of the city of New York, in trust for the use and benefit of the Roman Catholic Church of the State of New York." It was held to be an attempt to create an express trust more extensive than what was permitted by the Revised Statutes, and was void. CHAPTER X. THE KEFOKMED PRESBYTERIAN CHURCH. § 1. Act of 1860. (1.) The members of the religious so- ciety now belonging, or who at any time hereafter shall belong, to the congregation of the Reformed Presbyterian Church, in the city of New York, from and immediately after the passage of this act shall be, and are hereby consti- tuted, a body corporate and politic, in fact and in law by the name, style, and description of " The Consistory of the Reformed Presbyterian Church in the city of New York," and the said consistory shall be the present minister, eld- ers, and deacons of the said congregation, for the time being, and their successors." (Act of March 24, 1860, Laws, chap. 98.) (2.) They shall, by and in their name aforesaid, have, hold, enjoy and possess all and singular, the rights, liberties, priv- ileges, and powers as trustees, and be subject to the like du- ties as are mentioned and described in and by the act enti- tled, " An Act to provide for the Incorporation of Religious Societies," passed April 5, 1813, and to hold property in the manner particularly mentioned in and by the same act ; the rents, issues, and profits whereof, shall not annually exceed the whole sum of five thousand dollars. (Ibid.) (3.) " Provided, that they shall not at any time determine or alter the minister's salary, or the annual rent of pews in the church, but that the same shall always be subject to the vote of the congregation, anything in the said act to the contrary notwithstanding." (Ibid.) § 2. (1.) The minister or ministers, and elders and dea- cons, and if during any time there shall be no minister, then the elders and deacons during such time, of every 150 Ecclesiastical Laio in the State of New YorJc. Reformed Presbyterian church or congregation, elected according to the rules, constitution, and usages of the Reformed Presbyterian Church, now or hereafter to be established within this State, shall be the trustees for such church or congregation. (§ 1 of Act of April 12, 1822, Laws, chap. 187.) (2.) It shall be lawful for said trustees, if not already incorporated, to assemble together as soon as they shall deem it convenient, and execute, under their hands and seals, a certificate stating the name and title by which they, and their successors in office forever, by a body corporate, by virtue of this act, shall be known and distinguished. (Ibid.) (3.) Such certificate shall be duly acknowledged or proved in the manner directed by the " Act to provide for the In- corporation of Religious Societies," with regard to the cer- tificates of other religious societies, incorporated under the said act, and shall thereupon be recorded by the Clerk of the County in which such church or congregation is established, in the book by him provided according to the directions of the aforesaid act. (Ibid.) See, as to the officers who may take the acknowledgment and as to recording in the Register's office, when the church is in the city of New York, ante, chap. 4, § 8. (4.) Such trustees and their successors shall thereupon, by virtue of this act, be a body corporate by the name or title expressed in such certificate, and such trustees and their successors so elected and incorporated by and in such name or title, shall have, hold, possess and enjoy, all and singular, the rights, liberties, powers, and privileges, and be subject to all the duties and limitations of trustees, men- tioned and prescribed in and by the act to which this act is supplementary, and may hold property in the manner and to the amount prescribed with regard to religious societies under that act. (Ibid.) (5.) Provided, That they shall not at any time determine or alter the minister's salary, or the annual rent of pews, but that the same shall be always subject to the vote of the congregation, anything in this act, or in the act to which The Reformed Presbyterian Church. 151 this is supplementary, to the contrary notwithstanding'. (Ibid.) § 3. (1.) " When any Reformed Presbyterian church or congregation shall, by resolution duly passed at a meeting of such church or congregation, determine that the deacons of such church or congregation shall be the trustees of such church or congregation alone, then it shall be lawful for the deacons of every such church or congregation now or hereafter to be established in this State, to be the trust- ees of every such church or congregation ; provided, that they shall have been elected according to the rules, consti- tution, and usages of the Reformed Presbyterian Church, and are actually engaged in the exercise of their office in said church or congregation." (§ 1 of Act of April 7, 1866, Laws, chap. 447.) (2.) " And it shall be lawful for the said trustees, if not already incorporated, to assemble together, and proceed to incorporate themselves in the mode prescribed in and by the act entitled ' An Act for the Incorporation of Religious Societies,'* passed April 5, 1813, and an act entitled * An Act supplementary to an Act entitled " An Act to provide for the Incorporation of Religious Societies, passed April 5, 1813 passed April 12, 1822.' " (Ibid.) This act of April 12, 1822, is cited, ante, § 2. i) CHAPTER XI. THE ASSOCIATE REFORMED CHURCH OF KEW YORK. § 1. The Associate Reformed Church in this country originated in the union of two bodies of Scotch Presbyteri- ans known as the Associate and the Reformed Presbyterian Churches. This union was accomplished in 1782. In 1855 there was a general Synod of the Presbyteries in the West- ern States, including three particular Synods at the West, and a separate Synod of New York. In that year, the Synod of New York united as a particular Synod with the general Synod of the West. This then became the supreme, judicial, and legislative body of the Associate Reformed Church. By an act of the legislature of 1836 (p. 776), " the trust- ees of the Theological Seminary of the Associate Reformed Church," were created a body corporate, and the election of the trustees of such corporation was vested in " The Associate Reformed Synod of New York at their annual meeting." This Synod was a particular Synod composed of several Presbyteries. Presl)yteries consist of all the ministers within a certain district, each accompanied by a ruling elder commissioned by the Sessions. The Associate Reformed Church was a Presbyterian Church, adhering to a government by ministers of equal grades, and ruling elders chosen by the congregation. The union which was effected in 1782, was not concurred in by all the members of the two churches. Many pre- served a distinct organization as the Associate Church. Negotiatious for that purpose resulted in a union of these churches, and the formation of a General Assembly em- The Associate Reformed Church of Neiv York. 153 bracing the particular Synods and Presbyteries of the Associate and Associate Reformed Churches. Upon a quo warranto, to test who were properly chosen trustees of the Seminary, it appeared that the relators were chosen by a body of persons undoubtedly members of the church before the last union, but who acceded to it, and the defendants were elected by a body who dissented from such union. It was held, that plaintiffs had the better title. That such a union as had been effected had not destroyed the church membership, or extinguished the church office in the church which still subsisted. The separate organiza- tion was retained. Particular synods were not merged in the united church. (Mr. Justice Emmott in The People ex rel. Geani v. Farrington, 22 N. Y. Rep. 294.) The case of The Associate Reformed Church v. The Trustees of the Theological Seminary (3 Green's Ch. Rep. of New Jersey, p. 79), was cited and distinguished. The General Synod of the Associate Reformed Church in 1822 formed a union with the General Assembly of the Presby- terian Church, by which it surrendered its separate exist- ence and became merged in the latter body. This involved the transfer to the latter of the library and funds of the seminary which was under its charge, and was not then incorporated. A considerable portion of the Associate Reformed Church refused the connection with the Presby- terian Church, and adhered to their peculiar tenets and distinct organization. They proceeded by bill in the church name against the Princeton Seminary, to which the prop- erty had been transferred. The Chancellor held, that the merger in the Presbyterian Church of the majority, did not extinguish the body they had left, if there remained any constituents to continue that body. It was a breach of trust to devote the property which had been given for the supply of the ministry of the Associate Reformed Church to the use of another denomination. (See as to this, in our State, post, chap. 22, § 4.) CHAPTER XII. THE METHODIST EPISCOPAL CHURCH. § 1. The corporation of the Methodist Episcopal Church in the city of New York, shall be, and are hereby author- ized to continue to elect nine trustees of the said corpora- tion, in the same manner as if that number of trustees had originally been named in the certificate of incorporation ; and such trustees shall be classed, or continue to be classed, ^ in the manner prescribed by the sixth section of this act. (§ 14 of Act of April 5, 1813, chap. 60.) ' § 2. Act of April 5, 1867. By an act of the 5th of April, 1867 (Laws, chap. 265), the presiding elder and a majority of the district stewards, appointed, according to the disci- pline of the Methodist Episcopal Church, residing in any ecclesiastical district in this State, erected by an annual conference of said Church as a presiding elders district, may make, sign, and acknowledge, before some officer com- petent to take the acknowledgment of deeds, and file in the office of the Clerk of any county in such district, and a du- plicate thereof in the office of Secretary of State, a certifi- cate in writing in which shall be stated the corporate name of such corporation ; the names, residences, and official relation to the district of the persons signing such certifi- cate ; the number of trustees not less than three, nor more than nine, who shall manage the property and affairs of said corporation for the first year, and their names ; and in which certificate it shall be further stated in substance, that the object of such corporation is to secure the benefits of this act. (§ 1 of Act of April 5, 1867, Laws, chap. 265. " An Act to authorize the formation of corporations to secure parsonages and other property for the use of presid- ing elders of the Methodist Episcopal Church.") The Methodist Episcopal Church. 155 § 3. When such certificate shall be filed as aforesaid, the persons who shall have made, signed, and acknowledged the same, and their successors, shall be and become a body poli- tic and corporate, by the name stated in such certificate ; and such corporation shall have succession, and possess the general powers conferred on corporations by the 18th chap- ter of the first part of the Revised Statutes of this State ; and shall also have power to take by gift, grant or purchase, any estate, real or personal, for the use of, and as a resi- dence for the presiding elder, for the time being, of such district, and his successors in ofiice ; and from time to time, to sell and convey the same, and reinvest the proceeds thereof for a like purpose, as the trustees of such corpora- tion, with the approval of the annual conference having jurisdiction over the district, may direct ; but the annual income or value of such real and personal estate shall not exceed five thousand dollars. (Ibid. § 2.) § 4. Any real estate heretofore conveyed for the use of, or as a residence for a presiding elder of any such district and his successors in office, may be conveyed by the trustees holding the title thereof, to a corporation formed as aforesaid, for the district in which such estate is situated ; whereupon the title thereto shall vest in such corporation, for the purposes defined by this act. (Ibid. § 3.) § 5. The district stewards of any presiding elders dis- trict, at their annual meeting, may appoint, from time to time, trustees for any such corporation within their district to supply the places of those whose terms shall expire, and to fill any vacancies in the number of such trustees ; and trustees of any such corporation shall respectively hold their offices for one year, and until others are appointed in their places. (Ibid. § 4.) In The People ex rel. Goffin v. Steele and others, trust- ees (2 Barb. Superior Court Rep. 397), members of three Methodist churches had become incorporated under the General Act, and built a meeting-house and parsonage in 1839. They were admitted into connection with other churches of the denomination by the presiding elder of the 156 Ecclesiastical Laio in the State of Neiv York. district, and agreeable to their discipline, received from him a preacher. For about eight years they received annually from the Conference a preacher, appointed by the Bishop. In 1847, their preacher, having been suspended by the authorities, the congregation determined to stand by him. They notified the Bishop that they did not desire a preacher to be appointed by him ; and agreed to continue the former as their pastor. The Bishop appointed the relator to the station. He was refused admittance into the church by the trustees, and a mandamus was issued and return made. The facts were made out of their professing to be mem- bers of the Methodist Church, and subject to its discipline and order. It had no independent organization. The cardinal rule of the itinerancy of preachers was stated and dwelt upon, and the equally settled rule that the appointment of preachers to the stations vested in the Bishop. The opinion of Judge Edmonds is very full and interesting upon these points. The question of the propriety of the writ of mandamus in such a case was carefully examined. A peremptory writ was issued in favor of the relator. CHAPTER XIII. THE QUAKERS. § 1. All deeds or declarations of trust of real or per- sonal estate, heretofore executed and delivered to any person or persons in trust, or for the use and benefit of any meeting of the Religious Society of Friends, and the trusts thereby created or declared, shall be valid; and the legal estates may be transmitted, and the trusts so created or declared may be continued and pursued so long as may be required for the purposes of the trusts, by conveyances from the trustees appointed by such meeting, and by conveyances by them to others appointed in like manner, or otherwise, according to the direction of such meeting. (§ 1 of Act of April 17, 1839, Laws, chap. 184.) § 2, (1.) Trusts of real or personal estate for the benefit of any meeting of the religious Society of Friends may be hereafter created for the use of such meeting, according to the regulations and rules of discipline of said society ; and the legal estate of any property so held in trust, shall be vested in the trustees and in those to whom the said prop- erty may be conveyed in trust by the appointment of any such meeting, so long as may be required for the objects and purposes of such trusts. (Ibid. § 2.) (2.) Nothing contained in this act shall be so construed as to impair or diminish the rights of any person, meeting, or association of persons, claiming to be a meeting of the religious Society of Friends, which such person, or meet- ings, or association of persons, claiming to be a meeting as aforesaid, hold either in law or equity to or in any real or personal estate, held in trust for the use and benefit of any meeting of the said religious society, at the yearly meeting held in the city of New York, in the month of May, in the 158 Ecclesiastical Laiv in the State of Neiv York. year of our Lord one thousaud eight hundred and twenty- eight. (Ibid.) (3.) No such real or personal estate shall he held in trust for any meeting of such society, the annual value or income of which shall exceed five thousand dollars. (Ibid.) CHAPTER XIV. THE SHAKERS. § 1. All deeds of trust in relation to real and personal estate executed and delivered prior to the first day of Janu- ary, 1830, to any person in trust for any united society of the people commonly called Shakers, shall he valid and effectual to vest in the trustees the legal estates and inter- ests to be conveyed by such deeds, to and for the uses and purposes declared therein, or declared by any declaration of trust, executed by such trustees in the same manner and to the same effect, as before the first day of January, 1830. (2.) And such legal estates and trusts may be continued so long as may be required for the purposes of the trust by convevances from the trustees named in such deeds, to other trustees appointed by such society, and by convey- ances from them to others appointed in like manner. (§ 1 of Act of April 15, 1839, Laws, chap. 174.) By an Act of April 1849 (chap. 373), the provision con- tained in subdivision 2 above, was amended so as to read as follows: "And all the legal authority with which the original trustees were vested by virtue of their appointment and conferred powers, shall forever descend in regular suc- cession to their successors in office and trust, who, in con- formity to the constitution of said society, have been duly chosen and appointed." § 2. (1.) Trusts of real and personal estate for the benefit of any united society of the people called Shakers, may hereafter be created for the use of the members of such society according to the religious constitution of such soci- ety, and the legal estates of any property so held in trust, shall be vested in the trustees and in those to whom such property may be transmitted in trust by the appoint- 160 Ecclesiastical Laio in the State of New Yorlt. ment of auy such society, so long" as may be required for the objects aud purposes of such trusts. (Ibid., araeuded by Act of April 10, 1852, chap. 203.) (2.) " No society shall become beueficially interested in any real or personal property, or acquire any equitable right or interest in any such property, either directly or indirect- ly, the annual value or income of which after deducting necessary expenses, shall exceed twenty-five thousand dol- lars, on pain of forfeiture of the privileges conferred by this act." (Ibid.) In the Act of 1839 it was five thousand dollars. (3.) " Nor shall any trustee be a trustee of more than one such society at the same time." (Ibid.) § 3. " The word ' society ' for the purposes of the pre- ceding section, shall be construed aud understood to mean, and includes all persons of the religious belief of the persons called ' Shakers,' resident within the same county." (Ibid. § 3.) These statutory provisions relative to the Quakers and Shakers are referred to in McCaughall v. Ryan, 27 Barbour, 376, to strengthen the argument, that no devises, even for religious purposes, creating trusts not within the provisions as to trusts in the Revised Statutes, are valid. Trusts of real estate for pious and charitable uses, are prohibited by the Revised Statutes. CHAPTER XV. INCORPOEATIONS GENERALLY UNDER SECTION THREE. § 1. First Election of Trustees. " It shall be la^^^ul for the male persons of full age, belonging' to any other church, congregation, or religious society, now or hereafter to be established in this State, and not already incorporated, to assemble at the church, meeting-house, or other place where they statedly attend for divine worship, and by plurality of voices to elect any number of discreet persons of their church, congregation, or society, not less than three nor exceeding nine in number, as trustees, to take the charge of the estate and property belonging thereto, and to trans- act all affairs relative to the temporalities thereof." (§ 3 of Act of April 5, 1813, chap. 60.) The male adults are to assemble, and at the usual place of worship. The phrase "belonging to," is explained more fully in an ensuing section as to voters, post, § 4. § 2. Notice of Election. " The minister of such church, congregation, or society, or in case of his death or absence, one of the elders or deacons, church-wardens or vestrymen thereof, or for want of such officers, any other person being a member or a stated hearer in such church, congregation, or society, shall publicly notify the congregation of the time when, and place where, the said election shall be held, at least fifteen days before the day of election. (2.) " The said notification shall be given for two success- ive Sabbaths, or days on which such church, congregation, or society shall statedly meet for public worship, preceding the day of election." (Ibid.) § 3. " On the said day of election two of the elders or church-wardens, and if there be no such officers, then two of the members of the said church, congregation, or soci- 11 162 Ecclesiastical Law in the State of Neiv York. ety, to be nominatecl by a majority of the members present, shall preside at such election, receive the votes of the electors, be the judges of the qualifications of such electors, and the officers to return the names of the persons who, by plurality of voices, shall be elected to serve as trustees of the said church, congregation, or society." (Ibid.) If persons answering to the description of elders or church- wardens are present, they must preside, and a nomi- nation and presiding of any others is illegal. The case of The People v. Peck (11 Wendell, 604), estab- lishes this. In that case, the minister had nominated as moderator and clerk, persons not so qualified, persons qualified being present. It was held to be illegal. There was in the case some evidence of a dissent to this course. But I doubt whether the consent of the majority of those present would have been sufficient to justify the choice of any one out of the appointed class of elders, if present ; or members, if elders are not present. It was also held, that the legislature did not mean one of the clergy to preside. Although a minister in the Baptist Church is called an elder, he was not within this clause of the statute. The fact that the certificate states that the presiding offi- cers were chosen by a plurality of votes, does not negative the fact that they were nominated by a majority of the members present, which the statute requires. No objection having- been made, it would be presumed, in the absence of evidence to the contrary, that the directions of the act had been observed. (Methodist Church v. Picket, 23 Barbour's Rep. 436.) § 4. " At such election, every male person of full age, who has statedly worshiped with such church, congrega- tion, or society, and has formerly been considered as belong- ing thereto, shall be entitled to vote." (§ 3, id supra.) The choice is decided by a plurality of voices. (Ibid.) In The People v. Tuthill (31 N. Y. Rep. 550), the phrase " stated attendance on divine worship," used in the seventh section, received a judicial construction. It means, regular Incorporations under Section Three. 163 attendance at the stated times of worship, as established in the church or congregation, as distinguished from irreguhir or occasional attendance. This attendance must be per- sonal, and cannot be supplied by another. The regular attendance of a wife, or member of his family, is not suffi- cient. And no amount of contriljution can be accepted in lieu of such stated personal attendance. I presume the lang-uagre used in this section must receive the same con- struction. The clause, "and has formerly been considered as belong- ing thereto," has not been, I believe, judicially interpreted. As no period for the stated attendance on worship is fixed for the first election of trustees, and the conjunction and is used, something else is plainly intended. Belonging to the church or congregation, implies, I apprehend, conformity to its doctrines, worship, and discipline. This should be made out satisfactorily to the presiding officers. There might be, for example, a society formed but a month previous, and persons worshiping for the whole period. Yet that Avould not complete the qualification. Adherence to the tenets and order of the body would amount to belonging to it. Still, a regular attendance on the ])ublic services may be deemed presumptive evidence of such belonging or adher- ence until disputed. § 5. " The said returning officers shall immediately there- after (after the election), certify under their hands and seals, the names of the persons elected to serve as trustees for said church, congregation, or society ; in which certificate the name or title, by which the said trustees and their suc- cessors shall forever thereafter be called and known, shall be particularly mentioned and described." (§ 3, ut supra.) For the form of such certificate, see Appendix. § 6. " Said certificate, being proved or acknowledged as above directed, shall be recorded as aforesaid." (Ibid.) See ante, chapter 4, § 8, as to the acknowledgment, proof, place of record, etc. In the city of New York, the Register's office is now the place of recording. § 7. " And such trustees and their successors shall there- 164 Ecclesiastical Law in the State of New York. upon, by virtue of this act, be a body corporate, by the name or title expressed in such certificate." (Ibid.) The creation of the corporation, therefore, essentially de- pends upon the sufficiency of the certificate, of its acknowl- edgment or proof, and its being duly recorded. The Methodist Episcopal Church v. Picket (19 N. Y. Rep. 482), is important upon the subject of the certificate. In that case it merely set forth, that agreeably to a law of the State of New York, of the 5th of April, 1813, the male members of the Methodist Episcopal Church at, etc., agree- ably to public notice given, met at, etc., on, etc., at their meeting-house; and by a plurality of votes chose R. J. and 0. B. to preside, and then proceeded to the choice of five trustees. On canvassing the votes, it was found, that the following persons were duly elected, namely, Richard Jones, etc. We, the returning officers, do certify that R. J., etc., were legally elected trustees for the Methodist Episcopal Church, in the village of Lyons, agreeably to said statute passed April 5, 1813. The Court held, in the first place, that to establish a cor- poration de facto against one who had recognized its corpo- rate character by dealing with it, it was sufficient to show the existence of a law authorizing the formation, proceed- ings taken in professed compliance with such law, and acts of subsequent user. It held also, that the certificate did substantially conform to the provisions of the statute. The Court adopted the views of the Supreme Court. § 8. " The Clerk of every county, for recording every certificate of incorporation by virtue of this act, shall be entitled to seventy-five cents, and no more." (§ 3, ut supra.) It was before shown that in the city of New York, the recording must be done in the Register's office. {Ante^ chap. 4, § 8.) § 9. (1.) " It shall be lawful for any two of such trustees, other than the trustees mentioned in the past section of this act, or their successors, at any time, to call a meeting of such trustees." (§ 5 of Act of April 5, 1813, chap. 60.) Incoiyorations under Section Three. IGo (2.) " A majority of the trustees of any cliiircli, congre- gation, or society mentioned in this act, being hiwfully con- vened, shall be competent to do and perform all matters and things which such trustees are authorized or required to do and perform." (Ibid.) (3.) " All questions arising at such meeting shall be de- termined by a majority of the trustees present ; and in case of an equal division, the presiding trustee shall have a casting vote." (Ibid.) The trustees are not duly convened unless notice is given to every one of them of the meeting called ; or unless a by-law or rule has appointed fixed days for a meeting, of which all are legally bound to take notice. [Ante, chap. 4.) When duly convened, there must be a majority of the whole present ; and a majority of such majority can decide. I have not found any provision as to the choice of the presiding trustee. No doubt the corporation could regulate this matter by a by-law. If there is none such, the trustees present may choose him. The direction of these matters is with the members of the church, who could establish rules ; and I think the trustees themselves may do so. (Wilcox on Corporations, p. 42.) The presiding trustee is not deprived of his regular vote, because of presiding, and I apprehend the clause as to a casting vote may operate to give him a double vote, in the case when the equality is produced by his own regular vote. (See ante, chap. 4, § 16.) The trustees, in order to bind the society by any act in their power to perform, must meet as a board, so that they may have each other's views, and deliberate and decide the questions before them. The separate action of the trustees individually without consultation, although a majority should agree upon a measure, would not be a lawful act. (Com- meyer v. United German Lutheran Churches, 2 Sandf. Ch. Rep. 186.) §10. (1.) Tenure. — Classes. — Vacancies. The trustees first chosen according to the third section of this act, shall continue in office for three years from the day of their elect- ion. (§ 6 of Act of April 5, 1813, Laws, chap. 60.) 166 Ecclesiastical Law in the State of New York. (2.) Immediately after their election, the said trustees shall he divided hy lot, into three classes, numhered one, two, and three ; and the seats of the members of the first class shall be vacated at the expiration of the first year, of the members of the second class at the expiration of the second year, and the members of the third class at the expiration of the third year, to the end that the third part of the whole number of trustees, as nearly as possible, may be annually chosen. (Ibid.) (3.) The said trustees, or a majority of them, shall, at least one mouth before the expiration of the office of any of such trustees, notify the same in writing to the minister;, or, in case of his death or absence, to the elders or church- wardens ; or, in case there shall be no elders or church- wardens, then to the deacons or vestrymen of any such church, congreg-ation, or society, specifying the names of the trustees whose time will expire. (Ibid.) (4.) And the said minister, or, in case of his death or absence, one of the said elders or church-wardens, or dea- cons or vestrymen, shall, in manner aforesaid, proceed to notify the members of the said church, congregation, or society, of such vacancies, and appoint the time and place for the election of new trustees to fill up the same, which election shall be held at least six days before such vacancies shall happen; and all such subsequent elections shall be held and conducted by the same persons, and in the manner above directed, and the result thereof certified by them; and such certificate shall entitle the persons elected to act as trustees. (Ibid.) (5.) And in case any trustee shall die or refuse to act, or remove within the year, notice thereof shall be given by the trustees as aforesaid, and a new election appointed and held, and another trustee be elected in his stead in manner afore- said. (Ibid.) § 11. YoicYs at Suhsequent Elections. (1.) "No person belonging to any church, congregation, or society intended by the third section of this act, shall be entitled to vote at any election succeeding the first, until he shall have been Incorporations under Section Three. ]67 a stated atteiulaiit on diviue worship, in the said church, congregation, or society, at least one year before such election ; and shall have contributed to the support of such church, congregation, or society, according to the usages and customs thereof." (§ 7 of Act of April 5, 1813.) (2.) The clerk of the said trustees shall keep a register of the names of all such persons as shall desire to become stated hearers in the said church, congregation, or society, and shall therein note the time when such request was made ; and the said clerk shall attend all such subsequent elections, in order to test the qualifications of such electors, in case the same should be questioned. (Ibid.) The case of The People v. Tuthill (31 N. Y. Rep. 550), was before referred to {ante, § 4), as interpreting the phrase " stated attendance of divine worship." It must be regular personal attendance. That of a wife or other member of the family would not suffice. So it was decided that the contrilnition prescribed must be according to the usages and customs of the society, which implied that such contribu- tions must be of a vital and substantial character. Con- tributions, however regular or large, could not give a right to vote without the stated personal attendance. The register is not conclusive. It does not prevent an inquiry into the qualifications of a person offering to vote. Parol evidence to this point is admissible. It is fr'umi facie proof of the right of one registered. (The People v. Peck, 11 Wendell, 605.) § 12. " Nothing in this act contained shall be construed or taken to give to any trustee of any church, congregation, or society, the power to fix or ascertain any salary to be paid to any minister thereof; but the same shall be ascertained by a majority of persons entitled to elect trustees, at a meet- ing to be called for that purpose ; and such salary, when fixed, shall be ratified by said trustees or a majority of them, by an instrument in writing, under their common seal ; which salary shall thereupon be paid by the said trustees out of the revenues of such church, congregation, or soci- ety." (§ 8 of Act of April 5, 1813.) 168 Ecclesiastical Law in the State of New York. I have before noticed, that this section is not appHcable to the Protestant Episcopal Chnrch ; but that the vestry fix the salary. I apprehend that it is also inapplicable to the Dutch Reformed Church. In the case of Erbagh v. The German Eeformed Church (3 E. D. Smith, 30), the suit was by a minister against the corporation, alleging a call in 1844 at a fixed salary, and rendition of services until January, 1846. That the defend- ants had executed three bonds to him, two in June, 1845, and one in January, 1846. Before the call, the Chancellor, reversing- a decree of the Assistant Vice-Chancellor, had determined that the board of trustees which called the plaintiff" was the lawful board of the corporation. A sur- render of the temporalities had then been made to such board by the adverse party. Upon an appeal, this decree of the Chancellor was reversed. It was decided, that the bonds executed before the revers- al, for the salary, were valid and binding, and the one made subsequently was not so. It was also held, that the statute as to fixing the salaiy was complied with under the follomng circumstances. Xotice of makiug the call was published from the pulpit, and a meeting for that purpose of the congregation called. At such meeting- the call was approved ; and was ratified by the trustees on the same day. The call contained the amount of salary to be paid to the minister. The chiuse as to payment out of the revenues of the church was noticed. It was considered to be directory, and a neglect to comply with it could not vitiate a contract otherwise valid, and upon which the minister could sue. In The German Reformed Church v. Basche (5 Sandf. Sup. Ct. Rep. 666), a minority of the trustees and other officers, in communicating to the defendant his election, undertook to fix his salary, no vote of the congregation having been taken. It was held void. It was also held, that the salary must be confirmed by the trustees. " It was the right, if not the duty, of the trustees, to withhold their assent, where there was reason to believe that the employment of the Incorporations under Section Three. 169 individual selected by the majority of the congreg-ation, he he orthodox or not, will destroy the harmony of the church." Lawyer v. Cipperly, 7 Paig-e, 381, was cited. § 13. Increase or Reduction of Trustees. The ninth sec- tion of an act entitled " An Act to provide for the In- corporation of Religious Societies," passed April 5, 1813, is hereby amended so as to read as follows : — " And be it further enacted, that whenever any religious corporation within this State, other than the chartered cor- porations, shall deem it necessary, and for the interest of such- religious corporation, to reduce, or to increase, their number of trustees, it shall and may be lawful for any such religious corporation to reduce, or to increase, their number of trustees at any annual meeting ; provided that such re- duction or increase, shall not be such as to leave a less num- ber than three, or a larger number than nine trustees, in any one of the said religious corporations ; jjrovided, that a notice of at least two weeks shall be given at a regular meeting of such society, of the time and place of holding any meeting at which such reduction or increase may be proposed." (§ 1 of Act of April 6, 1866, Laws, chap. 414.) The amendments are shown in the passages italicized. I presume that this section is not applicable to the Prot- estant Episcopal churches, nor to those of the Dutch Reformed. § 14. (1.) " If any church, congregation, or religious soci- ety now, or hereafter to be incorporated, according to the provisions of the third section of the act hereby amended, shall neglect or omit, or have neglected or omitted, at their stated annual elections, to choose any one of the three classes of trustees as mentioned in the sixth section of the said act, the said church or congregation, or religious society shall not be deemed or taken to be thereby dissolved ; but the trustees then, or now already chosen, shall continue to hold their offices until others be chosen in their stead." (§ 1 of Act of February 15, 1826, Laws, chap. 47.) This clause introduces the important point of a holding over of old trustees until the choice of new trustees, which 170 Ecclesiastical Laiv in the State of Neiv YorJc. was omitted in the sixth section of the Act of 1813. (See, as to this rule, fost, chapter 16, §§ 15, 16, where the subject is examined at length.) (2.) " Whenever such neglect or omission shall happen through defect of due notice or otherwise, the trustees of said church, congregation, or society, or a majority of them, shall immediately thereafter give notice thereof in writing to the minister, or in case of his death or absence, to the elders or church-wardens ; and in case there shall be no elders or church-wardens, then to the deacons or vestrymen of any such church, congregation, or society." (Ibid.) (3.) " And the said minister, or in case of his death or absence, one of the said elders or church-wardens, deacons, or vestrymen shall, in the manner prescribed in the third section of the said act, proceed to notify the members of the said church, congregation, or society, of such neglect or omission, and appoint the time and place for the election of new trustees to remedy the same ; of which election at least fifteen days' notice shall be given in the manner aforesaid." (Ibid.) (4.) " The said election shall be held and conducted by the same persons, in the same manner, and the result be cer- tified in like manner, as is prescribed in and by the sixth section of the act hereby amended, and shall have the same force and effect as elections held under and by virtue of said section, and not otherwise." (Ibid.) There are some decisions under this third section, of a general character, and of great importance. Thus the case of Petty v. Tooker (21 N. Y. Rep. 267), arose under this section, and related to a church original- ly Congregational, attempted to be changed into a Presby- terian. The action was ejectment to recover the church property. It was decided, all the judges concurring — That congregations formed under the third section, have no denominational character, and none can be engrafted on them. Tbe legal character is not affected by the ecclesias- tical connection, doctrines, rites, or modes of government of the church formed by the corporators. Incorporations wider Section Three. 171 That persons, otherwise qualified, do uot lose their right as corporators to vote at elections, by reason of their having individually or collectively renounced the doctrine or eccle- siastical government professed and recognized by the relig- ious body, in whose worship and services the corporate property has been employed. The title of the trustees to office and control of the prop- erty is not impaired by a change as to doctrine or church government, on their part, or on the part of those by whom they are elected. They are to determine who shall conduct the religious exercises. The only restraint is the power of the corporators to fix the salary of the person employed. They have also the power to make such reg'ulations as to the renting and occupation of pews, as to exclude persons holding obnoxious opinions, from becoming attendants upon public worship, and thereby obtaining a right to vote. In this mode only, or by express condition in a grant of property, can its use be restricted to the support of any par- ticular form of religious belief or ecclesiastical organization. The comment of Mr. Justice Seldeu upon the seventh section, requiring a member to be a stated attendant for a year, is, that under it the society has obviously, through its trustees, full power to determine what persons it will thus admit to membership. The trustees can regulate the rent- ing of pews, and could adopt such regulations as that no pew could be rented originally, or assigned to a new occu- pant, without a previous consent. All who had been stated attendants upon the services of the preceding year, were legal voters. Nothing else was required. As they who adhered to the Presbyterian forms and faith were prohibited from voting, the election was void, and no rights were acquired under it. So in Burnet v. The Associate Reformed Church (44 Bar- bour's Rep. 252), land had been conveyed to trustees in trust to and for the uses and interests of the religious society denominated the Associate Reformed Church, of the town of Seneca, for building a church on said lot, or for a burying- ground. Another deed gave land in trust for the same 172 Ecclesiastical Law in the State of New York. society by name. And a third deed conveyed other land to the same trustees, " for a parsonage, and nothing else." It was decided that the trustees held the property for the use of the society, that is, of the corporators entitled to vote at the election of trustees, a majority of whom had control of the property, and decided the ecclesiastical re- lations, and the character of the doctrines taught from the pulpit. If a relig'ious society separate from the denomination with which it was before connected, and connect with another, the trustees can call a minister of such other denomina- tion, and exclude all others. The trust deeds did not make the holding of the property to depend upon adherence to any particular tenets, or form of church government. See further upon this point, post, chapter 23. " The In- terposition of Civil Tribunals." The trustees do not form the corporation. The body of members, those entitled to vote, constitute the corporate body. The trustees are the agents or officers of the corpo- ration in like manner as the directors of a bank or insur- ance company, clothed with certain powers, derived from statutes, or necessarily incident to powers so conferred. (The People v. Fulton,' 11 N. Y. Rep. 94.) CHAPTER XVI. GENERAL PROVISIONS APPLICABLE TO ALL INCORPORATIONS UNDER ACT OF 1813, AND ITS AMENDMENTS. § 1. Common Seal. The trustees of every church, con- gregation, or society hereinbefore mentioned, and their successors, shall have and use a common seal, and may renew and alter the same at their pleasure. (§ 4 of Act of April 5, 1813, chap. 60.) The common law intended by a seal an impression upon wax or wafer, or some other tenacious substance, capable of being impressed. This remains the general rule of law in this State. (Warren v. Lynch, 5 Johns. Rep. 239.) Such law is applicable to deeds and private instruments still. Instruments of a public character with a stamp impressed upon the paper are made valid by special acts. From the various passages of Scripture cited by Chancel- lor Kent and others, referred to by Calmet,i the conclusion seems to be, that the seal, at least such as was used on let- ters, as in Esther viii. 10, were raised inscriptions or marks upon clay or metal. Wax was unsuitable to the warm climates of the East. § 2. Power to ialce the Property. (1.) The trustees are authorized and empowered to take into their possession and custody all the temporalities belonging to the said church, congregation, or society, whether the same consist of real or personal estate, and whether the same shall have been given, granted, or devised, directly to such church, congre- gation, or society, or to any other person for their use. (§ 4, ut supra.) (2.) " And {are authorized and empowered) to recover, hold, 1 In verho, and see Title Books. 174 Ecclesiastical Lcm in the State of Neiu Yorh. and enjoy all the debts, demands, rights and i)rivileges, and all churches, meeting-houses, parsonages, and hurying- places, with the appurtenances, and all estates belonging to such church, congregation, or society, in whatever manner the same may have been acquired, or in whose name soever the same may be held, as fully and amply, as if the right or title thereto had originally been vested in the said trustees.'' (Ibid.) These clauses of the section relate to property, real or personal, held by the congregation or church, or by some person as trustee or for its use, prior to its incorporation. In the Act of the 6th of April, 1784, the clause above marked (1), was enacted, with this addition : " And although such gift, grant, or devise, may not have been strictly agreeable to the rigid rules of law, or might, on strict construction, be defeated by the operation of the Statutes of Mortmain." The fourth section of the general revised Act of March 27, 1801 (Laws 1801, chap. 69), was the same as the section in the act of 1784. The Chancellor, in The Dutch Church in Garden Street V. Mott (7 Paige, 77), cites this provision of the Act of 1801, as authorizing the trustees of that church, incorporated in 1696, to take and hold land given to trustees for the use of the church or congreg'ation in 1691. He considered that after the lapse of 140 years, the legal presumption would be, that a conveyance had been made, but independently of that, this provision of the Act of 1801 (he might have said of 1784) transferred the legal title to the corporation. See also, The Baptist Church v. Wetherell, 3 Paige, 298. The case of Jackson v. Hammond (2 Caines' Cases in Error, 33), is undoubted law, so far as it settled that a devise to a secular incorporated body, in trust for the minister of an unincorporated church, was invalid. It is certainly not law in deciding that the fourth section of the Act of 1784 did not cure the objection, if the church became incorpo- rated uiuler that statute. The construction that the section related only to personal property was erroneous. To this, General Provisions under Ad of 1813, etc. 175 Justice Duer alludes in the ease of Ayres v. The Methodist Church, 3 Sandf. Sup. Ct. Rep. 351. § 3. Trustees to Sue and be Sued. The trustees may, by their corporate name and title, sue and be sued, in all courts of law and equity. (§ 4, ut supra.) In the case of The Reformed Dutch Church v. Yeeder (4 Wendell, 494), a g-rant had been made to individuals for the use of the church. It was subsequently incorporated. An action in the corporate name for rent was sustained. In The People v. Fulton (11 N. Y. Rep. 94), it was held, that an action under statute for forcible entry and detainer, could not be supported in the name of the trustees, but must be in the name of the corporation. The title was in that body, not in the trustees, who were only the agents or officers having- control and possession, but not the title. Religious incorporations, when bringing an action, must show themselves to be incorporated. But, by statute (2 R. S. 458, § 3), it is not necessary to make this proof on the trial, unless there is a plea of no incorporation in abatement or bar. This statute seems general, as to all corporations created under any statute of the State. In the matter of The Methodist Episcopal Church v. Ticket (23 Barbour, 486), it was allowed, that when a corpo- ration brings an action, the fact of a legal incorporation must be proven. The certificate showed an act of incorpo- ration in 1826. It was proven that certain persons were trustees in 1850 ; that the society had a place of worship. A subscription paper had been circulated to raise funds to remove the old, and erect a new house. The defendant had subscribed. The evidence, it was held, warranted the con- clusion, that the society had acted as a corporation since the date of the certificate. In The Trustees of the Methodist Episcopal Church v. Stewart (27 Barbour, 553) , it was held, that a trustee could not be sued by his co-trustee as a trespasser, in respect of the property of the society, until he had been divested of his character as trustee. His possession is that of his co-trustees, and his right equal to that of others. 176 Ecclesiastical Law in the State of New YorJc. § 4. Authority to inircliase and Iwld Lands. (1.) " The trustees are also authorized to purchase, take, and hold other real and personal estate, and to demise, lease, and im- prove the same, for the use of such church, congregation, or society, or for other pious uses, so as the whole real and personal estate of any such church, congregation, or socie- ty (certain exceptions are specified), shall not exceed the annual value of three thousand dollars." (§ 4 of Act of 1813.) (2.) It shall be lawful for each and every of the religious incorporations created, or to be created within the city of New York, in pursuance of this act, or of the act hereby amended, to take and hold real and personal estate of the annual value and income of six thousand dollars, anything contained in the fourth section of the act hereby amended, to the contrary notwithstanding. (§ 3 of Act of March 5, 1819, chap. 33.) (3.) It shall be lawful for every religious corporation cre- ated by letters-patent, under the great seal of the Colony of New York, to have, hold, and enjoy lands, tenements, goods and chattels, of the yearly value of three thousand dollars, although the letters-patent by which such corporation was created, shall contain a clause or clauses, restraining* and limiting the annual revenue and income of such corpora- tion, to a sum less than the said three thousand dollars. (§ 12 of Act of April 5, 1813, chap. 60.) Acquisition Inj Deed. The leading case of Tucker v. St. Clement's Church (3 Sandf. Sup. Ct. Rep. 242, affirmed in 4th Selden, 558, n.), was as follows : — The church was incorporated in 1830, under the first sec- tion of the Act of 1813. By a deed dated in 1843, premises in the city of New York (subject to a lease for life) were conveyed to " the Rector, Church-wardens, and Vestrymen of St. Clement's Church," being the corporate name. Ha- hendum as follows : " To have and to hold all the a1)0ve- mentioned and described premises, with the appurtenances, unto the said party of the second part, thoir successors and assigns forever, upon condition that the rents, issues, and General Provisiom under Act of 1813, etc. 177 profits of the premises hereby granted and conveyed, and in case the same shall be sold, the interest, income, or dividends of the money for which the same shall be sold, shall 1)6 applied by the said parties of the second part to the maintenance and support of the minister for the time being of the said church, and for no other purpose Avhatso- ever." The Court held, Mr. Justice Duer delivering the opin- ion, — That a corporation, if unrestricted by law or charter, has a capacity to take and dispose of real estate, the same as a natural person ; and that it was not to be doubted, that it could hold lands as a trustee. That where the purposes for which it may hold real es- tate are enumerated in its charter, the maxim expressio iinis est exclimo alterius, is to be applied, and the specification is construed as a prohibition of all that it does not embrace. It can hold lands for the purposes specified, and for none other. (Jackson v. Hartwell, 18 Johnson's Rep. 422 ; 1 R. S. 602, §§ 1 and 4.) The right to take and hold lands was co-extensive with, and for the same purposes as that to demise and lease them ; and the trusts were of the same character. The use specified in the conveyance must be one of the purposes for which the society was incorporated, and to which the trustees might lawfully apply the property if generally con- veyed to the corporation. Within the most strict rules of interpretation, the phrase of the statute, " to take and hold for the use of the church and other pious uses," the support of a minister of the church was plainly within the meaning. Again it was held, that the power of a religious corpora- tion to hold lands upon a trust of this description was not forbidden by the Revised Statutes as to trusts. The act for the incorporation of religious societies, far from being re- pealed, was in fact reenacted in that revision. This case was affirmed in the Court of Appeals ; and I apprehend that nothing in the subsequent cases in that 12 178 EcclesiasUcal Law in the State of Netu York. court (Levy v. Levy, 33 N. Y. Rep. 97 ; Bascom v. Albertson, 34 ibid. 584,) affect this decision. It may be observed tiiat the learned justice who decided the case of St. Clement's Church g-ave the opinion in the case of Ayres v. The Methodist Church (3 Sandf. Sup. Ct. Rep. 351), the leading case in overturning the old doctrine of charitable uses. He insists, with unanswerable force, that there is no inconsistency between the decisions. The law as laid down in the case of St. Clement's Church, was recognized in Williams v. Williams, 8 N. Y. Rep. 525. Devises to Licorporations. It is a question which has arisen, and may arise again, in connection with colonial charters, and incorporations under the successive g'eneral acts, to what extent and under what circumstances devises to religious corporations were valid. I believe the following propositions can be sustained, and will tend to determine the point in particular cases. (1.) As matter of history, we are to conclude, that the statute of Elizabeth did not create a new law upon the subject of charitable uses. It created a new and ancillary jurisdiction to execute them. It left the authority of the Court of Chancery over them, as it before existed. It defined what should be deemed charitable uses, and so far guided and controlled the courts. (2.) The Statutes of Mortmain, which were passed before 1664, were in force in the Colony and State, until the gen- eral repealing act of all English statutes, by the Act of the 27th February, 1788. The clause in the Act of April 6, 1784, before cited, appears to be a legislative recognition of the prevalence of such statutes, or some of them. The charter to Trinity Church of 1697 gives authority to take and acquire lands of a certain value, the Statute of Mortmain and any other statute to the contrary notwith- standing. Mr. Justice Ducr in The Methodist Church v. Ayres (3 Sandf. Sup. Ct. Rep. 351), refers to the clause in the Act of 1784 as establishing the force of such statutes. General Provisions under Act of 1813, etc. 179 Numerous judges in the late cases speak of the geueral repealing Act of 1788, as repealing the Statutes of Mort- main, thus conceding their prevalence before. One observation is of much importance : " The aliena- tions in mortmain, before the statute 9 George XL, were never made void, so as to let in the grantors or their heirs at law ; but a right was given to the mesne Lords, or the King, to seize them as forfeited. Therefore, if they remit- ted this right, the alienation was good. Dispensations by license to hold in mortmain then arose." (Wilmot's Opin- ions, p. 2, and the statutes and cases cited in Wright v. The Methodist Church, Hoffman's Rep. 253.) The statute of 9 George II. (1734), the crowning Statute of Mortmain, created a new rule. It is hereafter shown that it was not of force in the colony. The statutes conmiencing with Magna Charta (9 Henry III. cap. 36, A. D. 1224), and ending with 23 Henry VIII. cap. 10, 1531, are cited in Burns' Ecclesiastical La^v, p. 317, a. They were all in force in 1664, and certainly were not inapplicable to our colonial situation and circumstances. The early statutes were directed against ecclesiastical corpo- rations. Chief Justice Wilmot says that the prohibition was extended to all lay and secular corporations as well as relig- ious, by the act of 7 Edward I. cap. 2. (Wright v. Trust- ees, etc., ut supra.) (3.) The Statute of Wills, 32 Henry VIII., a branch of the law of mortmain in one particular, was in force in the col- ony, until superseded by our Statute of Wills of the 3d of March, 1787. (1 Greeuleaf, 385.) The statute of Henry VIII. — the act of our State of 1787 — the statute in the revision of 1813, and in the previous re- visions, — all contained the clause which excepted from the power to devise, a devise to bodies politic and corporate. In the revision of 1830, a change was made, by which a corporation was made incapable of taking by devise, unless expressly authorized by its charter or by statute. (2 R. S. 57, § 3.) The restriction upon the power of the devisor to grant, was changed into an incapacity of the devisee to take, except as provided. 180 Ecclesiastical Laio in the State of New York. (4.) The statute of 43 Elizabeth is treated as prevailing", by Justice Duer in Ayres v. The Methodist Church ; by the Court in Andrews v. The Bible Society, 4 Sandford, 186 ; by Justice Comstock in Beekman v. Bonser, 23 N. Y. Rep. 307 •> by Justice Wright in Levy v. Levy, 33 N. Y. Rep. 110 ; and by Justice Porter in Bascom v. Albertson, 34 N. Y. Rep. 603. A careful examination of the opinion of Denio, Justice, in Williams v. Williams (4 Selden, 525) ; of Justice Seldeu in Owen V, The Missionary Society (14 N. Y. Rep. 384), will show that nothing- said by these learned judges is hostile to this proposition. And the true view is, that this statute did not merely cre- ate an inquisitorial commission and a new remedy, but legal- ized a variety of specific charities ; defined what should be regarded as charities, and brought such within the jurisdic- tion of the Court of Chancery. The commission fell into disuse. The charities of the statute were enforced in equi- ty. The law in every particular, except the special mode of enforcement, was applicable to the situation of the colony. The opinion of Chancellor Jones in the Orphan Asylum case (9 Cowen, 437), as to its operation, has stood the test of every examination. When we examine this famous statute, either as an epit- ome of the former law, or as defining what it shall be for the future, there is scarcely an object in its enumeration which was not necessary or important to be promoted in the very infancy of a colony. The remedy was local, and even that remedy soon became obsolete in England. (5.) Another consideration appears to me to be of much force. Many of the statutes of mortmain, prior to that of 9 George XL, were particularly directed against gifts in sup- port of Papistical and Romish doctrines. They were in fact offsprings of the Reformation. The statute of 1 Edward VL cap. 14, respecting Chantries Collegiate, Avith its noble preamble, is preeminently so. Any conveyance or devise for the support of a priest to continue an olnt or anniversary for- ever, was declared absolutely void. The Chantries were little chapels or altars in a church, endowed with revenues for General Provisions under Ad of 1813, etc. ISl the maintenance of a priest to pray for the soul of the founder and deliverance from purgatory. Anniversaries and ohits were the offices used on such occasions, the former every day, and the latter at the end of the year.^ Under this statute various cases were decided separating the good from the superstitious use. Thus in the Cloth- workers' case (Moore's Rep. 654), there was a devise of land, to give <£3 Qs. to the poor, a provision for an ohit^ and the remainder to maintain the edifices and ornaments of the church. Adjudged that the king should uot have the land, because where good uses are mixed with an ohii, mmiversanj, light or lamp, the land is preserved for the good uses, and the gift /or su2)erstiUon is nought. See also Com- berton's case and Rosse's case, cited Hoffman's Chan. Rep., 250, 251. Now in the year 1700 the Colonial Assembly passed the severe act against Jesuits and Popish priests before cited. {Ante, chap. 9, § 1.) It is reasonable to conclude that if the opinion had not been that such acts as we have noticed were in force, the legislature would have carried out their hostility to the Papists by reenacting them. Manifestly such statutes would be deemed applicable to the situation of a colony, where such hatred of Romish doctrines and observances existed. (6.) Between the 43 of Elizabeth (1602), and the 9 of George II. (1734), devises for purposes within the first- named act were valid. No point is better settled than this, that the statute of Elizabeth operated as a partial repeal of the exception in the Statute of Wills of Henry VIII. and enabled a devisor to limit and appoint lands for any object enumerated, or within the intendment of the act. (Grant on Corporations, p. 115, and the several cases cited in Wright V. The Methodist Church, Hoffman's Ch. Rep. 262.) (7.) But the act of 9 George II. (1734) prohibited alien- ations (devises among them) to bodies corporate, or any charge upon land for the benefit of any charitable use, un- less by deed executed twelve calendar months before the - Burns' Ecclesiastical Law, vol. i. p. 53. 182 Ecclesiastical Law in the State of New York. death of the donor and grantor, and enrolled in the enroll- ment office of the Court of Chancery within six months after its execution. Every gift, etc., not so enrolled was absolutely void. This act could be taken advantage of bv heirs. One evil leading- to its passage is recited, as being the disinheritance of heirs. But the decision of the Master of the Rolls in The Attor- ney General v. Stewart (2 Merivale's Rep. 143), that this statute did not extend to Granada, or any other colony, seems to me unanswerable. " In its causes, its objects, its provis- ions, its qualifications, and its exceptions, it is a law wholly English; calculated for purposes of local policy; complicated with local establishments ; and incapable, without great incongruity, of being transferred as it stands, into the code of any other country." See also The Mayor of Lyons v. The East India Company, Moore's Privy Council Rep. vol. i. p. 175. Again, as a general rule, it may be stated, that the colo- nies of England had the common law for their government, and such statutes, particularly if amendatory, as were in force at the time of their being* planted, and were not inap- plicable to their situation. And it may be regarded as a rule that statutes subse- quently passed, did not extend to a colony, particularly after it has a legislature of its own, unless expressly so declared. (Kent, vol. i. p. 472 ; Chalmers' Opinions, vol. i. p. 194 ; Smith's History of New York, vol. 1, p. 243 ; Bogardus v. Trinity Church, 4 Paige's Rep. 178.) I conclude that under the statute of Elizabeth, from the time that the English acquired the colony in 1664 (with the slight interval from 1673 to 1674), devises to relig'ious cor- porations for their proper purposes, were valid, and contin- ued to be so until the passage of the Statute of Wills of March 3, 1787. Next, by force of the fourth section in the successive statutes for incorporating churches, devises made to a church or congregation previous to its incorporation became valid, and vested when it became incorporated. General Provisions under Act of 1813, etc. 183 And as to clevises after the incorporation of a cliurch, and after the Act of March 3, 1787, to such corporations, they were absohitely void. And this continued to he the law until the Act of 1860, hereafter noticed. It is fully settled, that the general words in statutes for the incorporation of religious societies, enabling them to take, receive, purchase and acquire, and hold real estate, are not sufficient to authorize the taking by devise so as to re- peal the Statute of Wills. (McCartee v. The Orphan Asy- lum, 9 Cowen ; Downing v. Marshall, 23 N. Y. Rep. 383 ; s. c. 21< Howard's Pr. Rep. 10.) This rule applies to the same and similar language in royal charters. Lastly, it must be considered as finally determined, that the law of charitable uses, either as found in the common law, whatever that was, or in the statute of Elizabeth, has no force in the State of New York ; clearly none since the Revised Statutes of 1830. All that exists of that law is to be found in special charters, or special or general acts of the legislature. (Levy v. Levy, 33 N. Y. Rep. 77 ; Bascom V. Albertson, 34 ibid. 584 ; Goddard v. Pomeroy, 36 Bar- bour, 540.) In the case of McCaughall v, Ryan (27 Barbour, 376), there was a devise in 1842 of all the testator's real and personal estate, to the Right Rev. Bishop Hughes of the city of New York, in trust for the use and benefit of the Roman Catholic Church of the State of New York. The Bishop, in 1846 and 1850, conveyed the premises, by sepa- rate parcels, to the defendants. In 1853, the legislature vested in the plaintiff all the title of the State to the prop- erty acquired by escheat. It was held to be an attempt to create a trust more ex- tensive than the Revised Statutes permitted, and to be void. Mr. Justice Emmott, dissenting from the views of Mr. Justice Strong in that particular, held, that a corporation sole was not known to our law. The title. Right Rev. Bish- op Hughes, was a descriptio persons. If he took at all, he took as trustee upon the trusts of the will. If they were void, the devise must fail altogether. The Roman Catholic 184 Ecclesiastical Law in the State of Neio York. ' Church in the State of New York, was not a corporation, nor a person in whom the title might vest, passing through the trustee. The Court concurred in hokling that the trusts were against the Revised Statutes, and the will void. The plain- tiffs recovered. And in King v. Run die (15 Barbour, 139), it was decided, that a direction in a will to sell lands and pay over the avails to a corporation for purposes and trusts, which in- volved a perpetuity, was invalid. The provision of the Revised Statutes so often referred to is, " that the corporation must he expressly authorized hy its charter or by statute to take by devise." The evident meaning is, that in judging of the validity of a devise to a corporation, the intent of the legislature to enable it to take by devise is not to be collected from probable reasoning, but that the necessary authority must be given in terms so clear and positive, as not to admit of any other construction. (Ayres v. The Methodist Church, 3 Sandf. Sup. Ct. Rep. 360; McCaughall v. Ryan, 27 Barbour, 377.) Act of April 13, 1860. By an act passed April 13, 1860, entitled " An Act relating to Wills" (Laws of 1860, chap. 360), it is provided : " No person having a husband, wife, child, or parent, shall, by his last will or testament, devise or bequeath to any benevolent, charitable, literary, religious^ or missionary society, association, or corporation, in trust or otherwise, more than one half of his or her estate, after payment of his or her debts ; and such devise or bequest shall be voted to the extent of one half and no more. " All laws and parts of laws inconsistent with this act are hereby repealed." This act was modelled upon an act of April 17, 1848, en- titled, " An Act for the Incorporation of Benevolent, Char- itable, Scientific, and Missionary Societies." (Laws, 1848, chap. 319.) It prohibited, when there was a wife, child, or parent, gifts by devise of more than one quarter of the party's estate. It did include in its enumeration religious societies or corporations. And it also directed, that the de- General Provisions under Act of 1813, etc. 185 vise must have been made two mouths before the death of the testator. It may be a questiou whether, as to the societies named in the Act of 1848, this provision is repealed. The author presumes it is so. But as relujious societies are for the first time mentioned in the Act of 1860, which does not contain such clause, it cannot be in force as to them. In Beeknian v. The People (27 Barbour's Rep. 304), the Act of 1848 was commented upon, and considered as the latest legislation upon the subject of mortmain. § 5. Repairing and Altering. " The trustees are author- ized to repair and alter their meeting-houses, and to erect others if necessary ; and to erect dwelling'-houses for the use of their ministers, and school-houses, and other build- ings for the use of such church, congregation, or society," (§ 4 of Act of April 5, 1813.) The repairing and altering of churches is thus placed in the hands of the trustees ; and no act or assent of the cor- porators is necessary. The clause as to erecting other churches if necessary, is very broad. It comprises, of course, the case of a new erection on the same ground, when a former edifice has been destroyed or become decayed. It has been also held, that the trustees have power to remove the church from one lot to another, or from one village to another, without ap- plication to the court for permission. (Matter of the Sec- ond Baptist Society, 20 Howard Pr. Rep. 324.) It might seem to warrant the building of additional churches ; but as another statute gives the authority to erect chapels, etc., it is needless to resort to this clause for povver. {Post, chapter 18.) By the English law, if a church be so much out of repair, that it is necessary to pull it down ; or is so little, that it needs to be enlarged, the major part of the parishioners, with the consent of the Ordinary, and meeting upon due notice, may make a rate for new building and enlarging- the church. The church-wardens are to take care that public notice be given in the church for a general vestry of the 186 Ecclesiastical Laio in the State of New York. whole parish for that purpose ; which notice should be at- tested and preserved, as the foundation of all the subsequent proceeding's. At the time and place, the minister and church-wardens should attend ; and when the parishioners are assembled the minister is to preside. He or one of the church-wardens, or such person as shall be appointed by them, ought to enter the orders of the vestry, and then to have them read and signed. Then a petition to the Ordi- nary is to be made for a faculty. He cites the parties con- cerned to show cause, and in his discretion grants the fac- ulty. (Burns' Ecc. Law, vol. i. p. 357.) The erection of dwelling-houses for the use of the minis- ter, and of school-houses, is subservient to the authority to acquire and hold laud. It cannot authorize the purchase of land for such purposes beyond the limit prescribed as annual income. § 6. Powers of Trustees. Such trustees shall have pow- er — (1.) To make rules and orders for managing the temporal affairs of such church, cougregation, or society. (2.) To dispose of all moneys belonging thereto. (3.) To regulate and order the renting of the pews in their churches and meeting-houses. (4.) And the perquisites of the breaking of the ground in the cemetery, or church-yard, and in the said churches and meeting-houses, for burying of the dead. (5.) And all other matters relating to the temporal con- cerns and revenues of such church, congregation, or society. (§ 4 of Act of 1813.) The power to make rules or by-laws for carrying out the objects of a corporation is incident to its creation, without formal words conferring it. (19 Wendell, 37.) But two srreat rules of law must be observed. The by-laws must be consistent with the provisions of the charter, and necessary or convenient to carry out the pur- poses of its creation ; and must not be at variance with the law of the land. A provision of the Revised Statutes of New York ex- General Provisions under Act of 1813, etc. 187 presses the rule. " A corporation has power to make by- laws, uot inconsistent with any existing- hiw, for the manage- ment of its property, and the reguhition of its affairs." (1 R. S. p. 600.) I cite a few cases exemplifying- this power. In The King v. Beton (Bnrrows' Rep. 2260), the freemen of the town entitled to votes and town privileges, were by charter and settled nsage, those entitled by birth, servitude, or election in a certain manner. Fnll power was given to make by-laws for the good government of the corporation. An ordinance was adopted, that persons might be admitted (not entitled by birth or servitude, or elected in the mode prescribed,) upon payment of the sum of ten pounds, or less under certain circumstances. On quo warranto against the mayor and town clerk, it was held, that this by-law was an alteration of the constitution given by the Crown, and void. In The Commonwealth v, Cain (5 Serg. & Ravvle, Penn. Rep. 510), the charter of a church corporation authorized the minister, church-wardens, and vestrymen to make rules, by-laws, and ordinances, and transact everything requisite for the good government and support of the church, and directed also, that the election of ministers, etc., should be conducted according to certain rules ; one of which was, that no persons were to vote, except those who had been regularly admitted and members of the church for twelve months previous to the election. A by-law, enacting that no member whose pew-rent was in arrear for a long-er time than two years should be entitled to vote for officers, was held valid. In Taylor v. Griswold (2 Green's N. Jersey Rep. 223), the Chief Justice said : " The incidental power of making* by- laws is limited not only by the terms of the charter, but by the spirit and design of the charter, the purpose for which it was created, the object which the Crown or the Legisla- ture had in view, and the general principles and policy of the common law." A by-law authorizing a vote by proxy, was void without legislative sanction. 188 Ecclesiastical Law in the State of Neio York. See also The Vestry of St. Luke's v. Mathews, 4 Dess. Rep. S. C. 578. By-hiws, duly passed under a law of the legislature con- ferring the power to make them, and properly relating to corporate purposes, have the same force as if they were enacted by the legislature. (McDermott v. The Board of Police, 5 Abbott's Rep. 422 ; Brick Presbyterian Church v. The Mayor, etc., 5 Cowen, 388.) § 7. Appointment of Clerl', etc. " The trustees may appoint a clerk and treasurer of their board, and a collector to col- lect and receive the said rents and revenues, and may regu- late the fees to be allowed to such clerk, treasurer, and col- lector, and them or either of them may remove at pleasure, and appoint others in their stead. Such clerk shall enter all rules and orders made by such trustees, and payments ordered by them, in a ))ook to be provided by them for such purpose." (§ 4 of Act of 1813.) In the case of The South Baptist Church v. Tracy, Ai)ril 5, 1842, before the author as Assistant Vice-Chancellor, the defendant was sued as treasurer, for an account, and to compel the surrender of books in his hands. He insisted that he was still the lawful treasurer, not having- been le- gally removed ; and also that he was a creditor. The first question was, whether the resolution of removal had been legally passed. The act authorized a removal at the pleas- ure of the trustees. The Court thought, that it would be difficult to imagine a case in which that power could be in- terfered with, however wantonly exercised. The case cited from Hopkins' Rep. 279, treated the power as arbitrary, but did not question its existence. It was said that the resolution was not legally passed, because two of the trustees were not eligible ; or if eligible, had forfeited their places by leaving the church and con- necting themselves with another. It was held, that under the sixth section, strictly consid- ered, no qnalification was prescribed, and one who had never been connected with the church might be chosen. But if this section was to be explained by the third, then it was General Provisions under Act of 1813, etc. 189 only necessary to be " a discreet person of the church, con- gregation, or society." The party had continued to pay for a pew, and occasionally occupied it, though generally he worshiped at another place, and meant at an ensuing day to leave the church altogether. He was considered as not having' ceased to be a trustee. It was held also, that if this was doubtful, yet the certifi- cate of election was, as to such collateral matters, conclu- sive. (Trustees v. Vernon Society, 6 Cowen, 23 ; All Saints Church V. Lovell, 1 Hall's Kep. 198.) § 8. Reduction of Trustees. Whenever any religious cor- poration within this State, other than the chartered corpo- rations, shall deem it necessary and for the interest of such religious corporations, to reduce their number of trustees, it shall and may be lawful for any such religious corporation to reduce their number of trustees at any annual meeting. Provided, that such reduction shall not be such as to have [leave] a less number than three trustees in any one of the said religious corporations. (§ 9 of Act of April 5, 1813.) It may be doubted whether this provision is applicable to Episcopal churches organized under the first section of the statute. Two wardens and eight vestrymen are the trust- ees of such a church, and are part of its settled ecclesias- tical organization. Neither does it seem applicable to the Dutch Reformed Church and its peculiar system. The chartered corjjorations referred to in this section are, no doubt, the corporations which had received charters under the colonial Governors, or by special statutes. The number of trustees, etc., must be governed by the provisions of such charters. § 9. (1.) The treasurer of any religious corporation singly, or the trustees, or persons entrusted with the care and man- agement of the temporalities of any church or religious society already incorporated, by virtue of any act of the legislature, or which may hereafter be incorporated in the cities of New York, Albany, or Schenectady, or a majority of them respectively, shall, once in every three years, and 190 Ecclesiastical Laiu in the Slate of Neiv YorJc. between the first day of January and the first day of April, triennially, to he computed from the first day of January last, exhibit upon oath to the Chancellor, or to one of the justices of the Supreme Court, or any of the judg-es of the Court of Common Pleas, in the county where such church, cong-regation, or society shall be situated, an account and inventory of all the estate, both real and personal, belong- ing at the time of making such oath, to the church, con- gregation, or society, for which they respectively are trust- ees or managers as aforesaid, together with an account of the annual revenue arising therefrom ; and if any such trustees or persons entrusted as aforesaid, shall neglect to exhibit such account and inventory for the space of six years after the expiration of every three years as aforesaid, and shall not then exhibit the same, and procure a certifi- cate to be endorsed thereon by the Chancellor or judge, that he is satisfied that the annual revenue arising from the real and personal estate of such corporation does not, nor has not for the six preceding years, exceeded the sum which by law it is allowed to receive, then such trustees or persons entrusted as aforesaid, shall cease to be a body corporate. (§ 10 of Act of April 5, 1813.) (2.) In every case where it shall appear from such ac- count and inventory that the annual revenue of any such church, congregation, or religious society in either of the said cities, exceeds the sum which, by virtue of any charter or law, they may or can respectively hold and enjoy, it shall be the duty of the Chancellor, justice, or judge, before whom the same shall be so exhibited, to report the same, together with such account and inventory, to the legislature at their next meeting. (Ibid.) § 10. Every corporation of any church, cong-regation, or religious society heretofore made in pursuance of any law of this State, and in conformity to the directions contained in this act, shall be, and the same is hereby established and confirmed, and such corporation shall be deemed to have commenced from the time of recording such certificate as aforesaid. (§ 13 of Act of April 5, 1813.) General Provisions tinder Act of 1813, etc. 191 § 11. In case of the dissolution of any such corporation, or of any corporation hereafter to be formed in pursuance of this act, by reason of a non-compliance with the direc- tions herein contained, the same may be re-incorporated in the manner prescribed in this act, at any time within six years after such dissolution ; and thereupon all the estate, real and personal, formerly belong'ing to the same, shall vest in such corporation, as if the same had not been dis- solved. Provided, that in such case the said account and inventory required to be exhibited by such corporation, in the cities of New York, Albany, and Schenectady, shall be exhibited within one month after such re-incorporation, and triennially thereafter as above directed. (Ibid.) § 12. Certain Neglects no Dissolution. No religious cor- poration shall be deemed to be dissolved for any neglect hitherto to exhibit an account or inventory of its real or personal estate and the annual income thereof, or for having held, or hereafter holding, elections of church oflicers on days before or after any movable feast observed by such church, the intervening time between such elections being more than a solar year. Provided, that such account or in- ventory shall be exhibited within two years after the passing of this act, and that previous public notice be given to the congregation of the time and place for holding such elec- tions. (Ibid. § 15.) § 13. Whenever any religious corporation shall be dis- solved by reason of any non-user or neglect to exercise any of the powers necessary for its preservation, it shall be law- ful for the religious society which was connected with such corporation to re-incorporate itself in the mode prescribed by this act; and that thereupon all the real and personal property which did belong to such dissolved corporation at the time of its dissolution, shall vest in such new corpora- tion for the said society. (Ibid. § 16.) § 14. Whenever there shall have been any omission or neglect of any church, congregation, or religious society, at their stated annual meetings, to choose any of the trustees, church-wardens, vestrymen, or other officers, according to 192 Ecclesiastical Law in the State of New York. the provisions of the act hereby amended, such church, congregation, or religious society shall not be deemed or taken to have been thereby dissolved; but the trustees, church-wardens, vestrymen, or other officers, then in office at the time of such omission, shall be deemed and taken to be the legal officers of such church, congregation, or soci- ety. Provided, that elections to supply such omissions shall be made within one year after the passing of this act. (§ 2 of Act of February 15, 1826, chap. 47.) See next section. § 15. Omission to Elect. Whenever there shall have been any omission or neglect of any church, congregation, or religious society, at their stated annual meeting, to choose any of the trustees, church-wardens, vestrymen, or other officers, such church, congregation, or religious society shall not be deemed or taken to have been thereby dis- solved; but the trustees, church-wardens, vestrymen, or other officers, in office at the time of such omission, shall be deemed and taken to be the legal officers of such church, congregation, or society, and shall continue to hold their offices until others be chosen in their stead. Provided, that elections to supply such omissions shall be made within one year after their occurrence respectively, or within one year after the passage of this act. (§ 3 of Act of 1844, chap. 158. " An Act to amend an Act entitled, ' An Act to pro- vide for the Incorporation of Religious Societies,' passed April 5, 1813.") § 16, No church or religious society now incorporated shall be deemed dissolved, nor shall any of its rights or privileges be impaired or aifected by reason of the trustees, or other persons entrusted with the management of its temporalities, having omitted to exhibit an account and in- ventory of the real and personal estate belonging to such church or society, or of the annual revenue or income arising therefrom. And any forfeiture incurred by reason of any such omission is hereby waived and discharged ; and no such account or inventory shall hereafter be required from any incorporated church or religious society, unless the annual income of its property shall exceed six thousand dollars. (§ 1 of Act of March 30, 1850, chap. 122.) General Pj'ovisions under Act of 1813, etc. 19 o The subject of a clissolutiou of a corporation under the preceding sections presents several points, some of diffi- culty. Suppose the case of an election wholly omitted on the ap- pointed day, and none held within the ensuing year, is the corporation de facto dissolved, so that it could be taken ad- vantage of collaterally ; so that a deed to it by its corporate name would not take effect. There is a class of cases holding that certain acts of omission, misuser, or abuse of powers and franchises furnish grounds for a judicial declaration of forfeiture and dissolu- tion, but do not of themselves produce such eifect. Thus in Kondon v. Vanmore (12 Modern, 274), a char- ter was granted upon a condition which the corporation neglected to perform, to the public inconvenience. It was held, that it could be repealed by scire facias. So in The King v. Pasmore, 3 T. R. 242, an abuse of the powers of the corporation justified a repeal of the charter by scire facias, which was declared to be the only way of taking advantage of it. In our own courts, the cases of The People v. Runkle, (9 John. Rep. 147) ; The Attorney-General v. The Bank of Niagara (Hopkins' Rep. 301) ; Slee v. Bloom (5 Johns. Ch. Rep. 379) ; aud The Trustees of Veruon v. Hills (6 Cowen, 23), are leading cases. They establish the general rule, that for mis-user or non-user of franchises, there must be a judgment of forfeiture. Still, where the language of a statute is, that upon the omission of an act prescribed, the corporation " shall be deemed dissolved," or " shall cease to be," or " shall not be deemed dissolved," provided an act is done within a certain time, it does not seem certain that these authori- ties apply. And particularly is the doubt increased if the neglect is of an act essential to keep up the corporate existence. In The Corporation of Bunbury (10 Modern, 346), the Court say : " If a Mayor be not chosen at the time pre- scribed by the charter, and there be no provision for the old 13 194 Ecclesiastical Laiu in the State of New York. Mayor contiuuiug on until a new one is chosen, tlie corpo- ration is dissolved, and cannot proceed to a new election." In Phillips V. Wickham (1 Paige's Rep. 590), the Chan- cellor held, that if a corporation consists of several integral parts, and some of those are gone, and the remaining parts have no power to supply the deficiency, the corporation is dissolved. If the corporators have the power in themselves to sup- ply the deficiency in their body, their rights are not ex- tinguished, but only dormant. If, however, that power is gone, and they cannot act until the deficiency is supplied, the corporation is dissolved. In the language of Lord Macclesfield, " this is not a forfeiture by non-user, but is a consequence of law. The corporation is dead, and not barely asleep." It may be argued, that the power of self-continuance is a common law attribute of a corporation, and while there are corporators, the power of choosing ofiicers resides in them. But when the legislature fixes a time for an election, and specially extends that time with a provision that the cor- poration shall not be deemed dissolved, if an election is had within the extended time, the inference is very strong, that it will be dissolved if wholly neglected beyond such time. The provisions of the Act of 1844 {lace accustomed, at their charg-es unto whom by law the same appertaineth. And by virtue of their office, thev are bound to see that the foot- paths are kept in proper order, and the fences in repair. (1 Curtis' Rep. 621.) These duties fall with us upon the vestry, in its collective capacity. In the case of The Rector and Church-wardens of St. Johns V. The Parishioners thereof (24 Eng. Law & Eq. Rep. 595), it was held, that nothing but an act of Parliament would enable the Court to apply consecrated ground to sec- ular purposes, however advantageous to the public or the parish. And in Camp1)ell v. The Parishioners of Paddington (24 Eng. Law & Eq. Rep. 597), Dr. Lushington repeated this proposition, but held that a vestry-room might be erected in a consecrated burial-ground, where no bodies had been in- terred. The uses were of a religious nature. 1 See Burns' Ecc. Law, vol. i. p. 323, etc. ^ Gibson's Codex, p. 190. Burt/ing-grounds, Cemeteries, Vaults. 237 The case of St. George's, Hanover Square, v. Stewart, was cited, where a prohibition was granted against building a school-house on consecrated ground. A church-yard adjoining the church has become so as- sociated in our minds Avith ancient custom and religious thoughts, that we look upon it as the most fitting place for the last sleep of relatives and friends. " God's Acre " of the parish church was not merely the ground on which the building stood, but the consecrated soil around it, in whose bosom the worshipers reposed when their prayers and praises were hushed in death. Yet it is certain that the earliest places of burial were without the walls of cities. It is said that Cuthbert, Arch- bishop of Canterbury, brought over from Rome the cus- tom of burying in and near churches, about the year 750. (Burns, vol. i. p. 256.) The practice of burying in churches is said to be prior to that of burying in church-yards, or places adjoining, but the privilege was reserved for persons of preeminent sanc- tity of life. It is much discountenanced by the present policy of the Church, as injurious to the stability of the fabric, and the health of parishioners. ^ The learned Bingham shows clearly that the fact of the early Christians meeting at times in cemeteries for public worship, fails to prove that they buried in churches, or even in cities. Generally the graves and monuments of the mar- tyrs are spoken of as being without the walls, and churches were often built over them.^ It is singular, that the burying in ground adjoining churches began in connection with the introduction into the Romish Church of prayers for the remission of the pains of the departed. It is stated tluit the practice of burying in remote places continued to the age of Gregory the Great, when the monks and priests beginning to offer prayers for the souls of the dead, procured leave, for their greater ease and profit, that liberty of sepulture might be in churches, or places adjoining them. 1 3 PhiUimore, 349 ; 4 Haggard, 174. - See vol. viii. p. 94, etc. 238 Ecclesiastical Law in the State of Neiv York. The parisliiouers have iu England a right to be buried in the parish church-yard, without paying any fee except from immemorial custom. " About the year 650, spaces of ground adjoining the churches were carefully inclosed, and solemnly consecrated and appropriated to the burial of those who had been enti- tled to attend divine service in those churches, and who now had become entitled to render back uuto those places their remains to earth, the common mother of mankind, without payment for the ground which they were to occupy, or for the pious offices which solemnized the act of interment." ^ The right of a parishioner to burial in the church-yard of his own parish church, was so exclusive that it was against law to bury any stranger therein, except with the permission of the church-wardens, and perhaps the incum- bent. It might interfere with the room necessary for the interment of parishioners.^ In our State aud churches, no such right exists iu parish- ioners. The trustees may adopt by-laws for regulating the mode, time, and fees for interments, whether in the church- yard proper, or in ground purchased under the statute before cited. {Ante, § 1.) Vaults. The trustees may allow the erection of vaults, upon such conditions as they shall think proper. The law of England appears to be that a faculty, as it is termed, for the erection of a vault, will be granted only upon the assent of the rector, church-wardens (and ordinary, if it is to be in the chaucel). It must be limited like a faculty for pews, to the use of the family, " so long as they con- tinue parishioners and inhabitants ; " and the Court must be satisfied, that it is not likely to be prejudicial to the parish.^ In the case of Windt v. The German Reformed Church (4 Sandf. Ch. Rep. 471), the subject of the rights of vault- holders was discussed. The defendants, a corporation, bought lots in 1823, and used them for a burial-ground. 1 Per Lord Stowell, in Gilbert v. Buzzard, 3 Phillimore, 349. 2 Burns, vol. i. 258. ^ Burns' Ecc. Law, vol. i. p. 273 a, etc. Buri/ing-groiinds, Cemeteries, Vaults. 239 No instrument of any kind was executed by tliein, giving a right of burial. Upon allowing graves to be opened, and bodies deposited, a certain fee was charged. In 184G, they had obtained an order from the Vice-Chancellor, allowing them to sell the lots, and had purchased some others for burying at Brookwick, Long Island. The plaiutiifs, relatives or representatives of buried persons, sought an injunction to restrain the removal of the remains. It was held, that there was no title to the land occupied by the body interred. There was a right to have it undis- turbed, so long as the cemetery continued to be used as such, and also the right, in case the land was sold, for sec- ular purposes, to have such remains removed, and properly deposited in a new place of sepulture. The restrictions of the Act of 1842, before cited, were then noticed, and it was suggested whether the Court now possessed (under the section relating to the sanction of a sale) any control over the subject, in reference to the pre- vious use of the ground for burying, " where the requisite consent of three fourths had been obtained to a sale or mortgage." Where vaults or burying lots have been conveyed by re- ligious corporations, some rights of property are conferred upon the purchasers. This was the case with the instru- ments executed by the corporation of the Brick Presbyterian Church. (3 Ed. Ch. Rep. 155.) In that case, the form of the instrument transferring the g-round for a vault was such as to transfer a title to the soil without restriction or limitation. The Vice-Chancellor held, that the property could not be sold without the consent of the vault-holder. It subsequently became common to grant only the use and occupancy of the space allotted, so long as the corporation continued to occupy the edifice and grounds, for religious purposes. In the case of Richards v. The Northwest Protestant Dutch Church (32 Barbour, 42), the subject was considered. The owner of a vault was treated as possessing a similar 240 Ecclesiastical Law in the State of New York. right to that of the owner of a pew. It was a right to the use and exclusive possession of the space, for burying pur- poses, so long as the property remained unchanged and devoted to religious objects. If the soil was sold with the sanction of the Court, the right or easement was terminated. In 4 Bradford's Reports, 503, is an opinion of S. B. Buggies, Esquire, as referee in the matter of widening Beekman Street. His report to the Supreme Court was confirmed, and payment for vaults directed in conformity to it. The case arose upon the petition of the corporation of the Brick Presbyterian Church, stating an award of commis- sioners of estimate and assessment for widening Beekman Street, awarding 828,000 for a piece of land taken. That the piece comprised vaults for the burial of the dead, in which various individuals claimed certain rights of inter- ment, and the use thereof as vaults. That subject to such rio-hts, the church was entitled to the whole amount. The order of reference was to ascertain the parties inter- ested in the fund, and in what proportions. The referee noticed the form of the instruments, and the decision of Vice-Chancellor McCoun, 3 Edw. Ch. Rep. 155, resiiectino- them. Thev conferred a title to the laud, and not merely an easement in it. They conveyed, however, a base fee and not a fee-simple absolute. It was the quality of the fee, the restrictions upon the usufruct, the enjoyment for only one specific purpose, that rendered it less valuable. The cost of a vault of equal dimensions in Greenwood Cemetery, and the cost of removing the remains, formed the basis of the valuation which the referee adopted. We notice that here the land was taken for public pur- poses in exercise of the right of eminent domain. The case of course is different where the property is voluntarily sold by the corporation. The form of the instrument given by St. Thomas' Church in the city of New York was as follows : " Received, etc., being the purchase-money for the use of Vault No. — , built upon the premises held by St. Thomas' Church, in the city Burying-grounds, Cemeteries, Vaults. 241 and county of New York, situate in Houston Street in said city. In consideration whereof, the said St. Thomas' Church doth asrree and covenant with the said his heirs, executors, and assigns, that he or they shall have the sole right to the use of said vault, as a family vault, so long as the said corporation shall continue, unless such use shall be prohibited by the corporation of the city." It was sealed. The church applied for an order authorizing a sale of the whole property. Justice Bonney considered that the grants amounted to demises, for rent paid in advance, of the use of portions of such real estate, and were legal under section 4 of the Act of 1813. And the Court was bound in allowing a sale, to protect the equitable rights of the vault-holders. An order was entered for a sale, " subject to the rights of such vault-holders as shall not release." Negotiations for a settlement ensued, in which many vault-holders agreed to take a sum about one half of the value of the parcels of ground occupied by the vaults. The case has not gone further in the coui-ts at present. We thus see that the question of strict law is not yet de- cided ; that is, whether the corporation, the consent of the Supreme Court being had, could make a good title and the vault-holders be compelled to look to the proceeds or the body for indemnity, or whether the release of the vault- holders was essential. I refer now to the case of instru- ments like that given by St. Thomas' Church. That the corporation can, under the power to lease their property, lease for the term of their continuing a corpora- tion, which may be in perpetuity (equivalent as to quality of estate to a sale), is not perhaps quite clear. If the instru- ment was simply a covenant, the remedy would be an action for its breach, and damages. Coffim. In our country, the habit of inclosing the body of the dead in a coffin is so universally prevalent, that it may be said to attend the right of interring in a particular place. Yet at former periods it was a right of no absolute charac- ter. " Some involucra or coverings," says Lord Stowell,^ 1 Gilbert v. Buzzard, 3 Phillimore's Rep. 335. 242 Ecclesiastical Law in the State of New York. "have been necessary iu all civilized and Christian coun- tries ; hut chests or trunks containing the bodies, descend- ing along with them to the grave, and remaining there till their own decay, cannot plead either the same necessity or the same general use. In our own country, the use of cof- fins is extremely ancient, though most probably, by no means general ; they are not nomumtive or directly required by any authority whatever ; and it is to be observed, that in the Funeral Service of the Church of England, there is no men- tion — indeed, there is rather a studious avoidance of any mention — of coffins. It is, throughout the whole service, the corpse or the body. Funerals were anciently coffined, or unconfined, and were charged for accordingly. From which I misht venture to draw the conclusion, that even at that time (1627), it was recognized as not unjust, that where the deceased, by the use of a coffin, took a larger occupancy of the ground, he should compensate the parish by an increased payment." CHAPTER XX. PEWS AND PEW-HOLDERS. Before the Reformation, no seats were allowed nor any distinct portions of the church assigned to particular parties, except in some exceptional cases for great persons. The seats were movable, and the property of the incumbent, and old wills are found disposing of them.^ It is stated that the earliest date of a pew now to be found in England is in Geddington, Northamptonshire, in 1602. But in the time of Bishop Owen, of Hereford, they had become so frequent as to be the subject of an Article of Vis- itation : " Are all the seats and pews so ordered, that they which are in them may kneel down in time of prayer, and have their faces up to the holy table ? " Generally the seats in churches were to be built and re- paii'cd, as the church was to be, at the general charge of the parisliioners, unless any particular person be chargeable to do the same by prescription. ^ Although the freehold of the body of the church be in the incumbent, and the seats thereof be fixed to the free- bold, yet because the church is dedicated to the service of God, and is for the use of the inhabitants, and the seats are erected for their more convenient attendance on divine ser- vice, the use of them is common to all the people that pay to the repair thereof. Every person who settles as a house- holder has a right to call on the parish for a convenient seat.^ It is clearly the law that a parishioner has a rig'ht to a seat without paying for it.^ The incumbent has no authority in the seating and ar- ranging the parisliioners, beyond that of an individual mem- 1 Hook's Dirt., Tit. Pews. 2 3 Burns, 358. 8 1 Consis. Rep. 196. * Ibid. 317. 244 Ecclesiastical Laiv in the Siaie of New York. ber of the vestry ; it is not the vicar, hut the vestry, which appropriates the seats, the general superintendence being with the ordinary .1 The latter may grant a pew to a par- ticular person while he remains in the parish, or there may be a prescription ; but as to personal property in a pew, the law knows no such thing. (3 Phillimore, 16.) The appro- priation of pews is generally made by the church-wardens under the directions of the ordinary. For that purpose they are his officers. (1 Phill. 316 ; 1 Haggard, 394.) The earliest notice I have found of a parliamentary sanc- tion for the selling or renting of pews, is in the Act of 58 George III., cap. 45, (1818). By the 75th section, a part of the sittings, not less than one fifth of the whole, were to be marked with the words, " Free Seats," and reserved for the use of poor persons resorting thereto, upon whom no rent was to be charged. Subscribers, being parishioners, were to have the choice of pews at the rate fixed by the commissioners. Church or chapel-wardens were not to let or sell any pews or seats to others than parishioners during their continuing inhabitants of the parish. By the charter of Trinity Church of 1697, this practice is recognized and regulated. The church-wardens were only to dispose of a pew or place to an inhabitant, unless the ves- trymen consented. And in 1748, directions were given as to letting pews in St. George's chapel. Dr. Berrian gives the form of an assignment of a pew in Trinity Church. The burden of repairing it was upon the assignee, and it was to revert, if he ceased to be an inhabi- tant of the city. (" History of Trinity Church," etc., 26.) At page 338 is a list of the grants or patents for pews sold. The rights of a pew-holder in a pew under the general law, and under the language of all the instruments given by churches, which have fallen under my notice, is an incor- poreal hereditament. It is more than an easement. It is connected with the land, and has some of the qualities of realty. It passes to the heir at law. (3 Kent's Comm. 402 ; McKnabb v. Pond, 4 Bradford's Rep. 7, Surrogate's Court, 1 Tattersall i'. Knight, 1 Phillimore, 233. Pews and Pew-holders. 245 New York.) It requires a writing to pass the title as an interest in land. (Viele v. Osgood, 8 Barljour's N. Y. Rep. 130 ; St. Paul's Church v. Ford, 34 Barbour, 16 ; and par- ticularly, The First Baptist Church v. Bigelow, 16 Wendell, 28.) The usufructuary right is a right to some extent, in the soil, as well as in the structure upon it. This enables the holder to sustain ejectment or trespass quare clausum /regit, as was held in Shaw v. Beverige, 3 Hill's N. Y. Rep. 26 ; and is laid down by Chancellor Kent (3 Comm. 402), and by Chancellor Walworth (3 Paige's Rep. 302). This distin- guishes our law from the English, under which such an ac- tion could not be supported, because the freehold is in the incumbent. This right in the soil is attached to the pew. It gives, indeed, no power to dig a vault under it without consent. It is subject to the paramount ownership of the trustees, to be exercised in cases of necessity, of important improve- ments, or a legalized sale. It is quite clear, that in the State of New York, a pew- holder has no such right to a pew, or the ground on which it stands, as will prevent a sale of the church edifice and soil, if the assent of the Supreme Court is obtained. A sale or permanent lease of a pew is subject to this condition. The purchaser takes with presumptive knowledge of, and assent to, the same. (Wheaton v. Gates, 18 N. Y. Rep. 395.) The Church of the Ascension (when in Canal Street), was, it may be said, completely destroyed by fire. The vestry determined against rebuilding* on the same site, and upon moving to the present situation on Fifth Avenue. The pew -holders were settled with, by allowing all who purchased pews in the new building, the amount they had paid in the former, as part of the purchase-money. Mr. Peter A. Jay was the legal adviser. So in the ease of the Church of the Incarnation, where a sale was made under the statute, of the building and ground, and the present new church was built, precisely the same course was adopted. 246 Ecclesiastical Law in the State of Neiv York. In the case of Trinity Church, when the present edifice was erected, the subject was much considered. The edifice was nearly unfit for public worship, and its entire demolition was necessary in order to erect a larger one, fitted to accom- modate worshipers. The case might fairly be considered as one of a destruction from necessity. Mr. G. C. Verplank gave an opinion, denying the legal rights of the pew- holders ; but by an arrangement, the old pew-holders were allowed an abatement on the price of new pews. Let it be granted, that this course was not in consequence of a legal obligation ; yet it is of so strong an equity, that it has been made an express statutory provision in the State of Maine. " When a meeting-house is altered or rebuilt, pews must be assigned to the former pew-holders, conformable, as nearly as practicable, to those before held by them." (Ty- ler's Am. Ecc. Law, § 339, and statute cited.) The following is a review of the leading authorities in the State of New York. In Frelig'h v. Piatt (5 Cowen, 494), all that is material is the language of the Court, that a pew-holder has a limited usufructuary right. If the house be burned or destroyed, the right is gone. In Henry v. St. Peter's Church (2 Edw. Rep. 608), the resolution was to take down the old church, and erect a new one of an enlarged size and accommodations. The Vice- Chancellor refused to interfere by injunction. If the com- plainant had any right, it could be settled afterwards, when he came to demand a pew in the new church. There was no ground to interfere with the trustees' power of alteration for the general benefit. In the Matter of the Brick Church (3 Edw. Rep. 156), it was held, that the right of a pew-holder was limited in du- ration, to continue so long as the church edifice stands ; his right is subordinate to the right of pulling down and re- moving. A pew-holder, if a corporator, will be so still after a change of location. The order for a sale of the property could be made without prejudice to the legal rights of pew- holders in the new building. Petvs and Peiv-holders. 247 When the present Brick Church was erected in Fifth Avenue, the same course as to owners of okl pews pur- chasing- in the new buikling was pursued, and a vahiation allowed, as in the cases of the Churches of the Ascension and Incarnation.' In Morrison v. St. Peter's Church (7 Legal Observer, 361), the trustees had adopted a plan of altering- and ex- tending- the church, which considerably changed the situa- tion of the plaintiff's pew, in regard to the pulpit and chancel, but did not interfere with his possession. The Court said : Everything granted to him by the instrument remained. If the value of the pew was depreciated, it was a contingency to which he was liable ; the trustees being in the exercise of an undoubted power, and acting in good faith. The case of Shaw v. Berige (3 Hill's Rep. 26), has been before noticed for the point decided. The general doctrine of the right of a pew-holder being subservient to the para- mount right of the trustees or corporation, is recognized. In the case of the Reformed Dutch Church (16 Barbour, 237), the law was stated that the trustees could no more sell a pew so as to give an absolute title to the purchaser without an order of Court, than it could sell the church edifice with- out it. The title conferred is the right to occupy the pews for the purposes of public worship. Voorhies v. The Presbyterian Church (17 Barbour, 103 ; 8 Barbour, 135), is the strongest positive decision in our books. The edifice was in a ruinous and dangerous state. The trustees rel)uilt it except the walls. They changed the inside so that the pulpit was placed in the situation of the plaintiff" 's pew. It was held, that they had a right to do this, and the party was without a remedy. " If, in doing this {rebuilding), the pews are necessarily destroyed, the pew-holders cannot sustain trespass or ejectment." In Cooper v. The First Presbyterian Church, etc. (32 Barbour, 222), Mr. Justice Bokee entered largely upon the 1 Mr. Daniel Lord has informed me, that he believes this was not considered a strict legal right, but a matter of equity and propriety. 248 Ecclesiastical Law in the State of New York. questions. He recognized tbe principle of several Massa- chusetts cases, as to the right of changing or taking down the church building. In case of a destruction from neces- sity, no compensation could be demanded ; but if done for reasons of convenience or propriety, it could be. The case arose upon a motion for an injunction by pew- holders to restrain the removal of pews, and erecting of slips or other structures in their place. The learned judge, after observing that the question of important alterations should be decided by a majority of the members assembled, adds : " No one would be driven from the church, but a seat or occupancy during public worship (which is all any one possessed), would be provided ; and if as good and equally commodious, although of a different form, no claim for damages could be sustained." The leading cases in Massachusetts are, Kimball v. Rowley, 24 Pickering, 347 ; Gay v. Barker, 17 Mass. 435 ; Gordon v. Waddell, 9 Gushing, 508 ; Facet v. Boylston, 19 Pick. 361. In Gay v. Barker, it was held, that a parish may take down the church edifice, and rebuild on the same ground, or may alter the shape and form, to make it more convenient. If in doing so, the pews are destroyed, the parish must provide an indemnity on just and equitable principles. " Unless the edifice is unfit for public worship, and so old and ruinous as to render its entire demolition necessary, a pew-holder would be entitled to indemnity for the destruc- tion of his pew. But if the parish abandon the edifice, when it continues fit for public worship, and erect a new one on a different site, it does not subject itself to any lia- bility to a pew-holder, unless it does it maliciously." This i)assage is from Mr. Tyler's work (" Ecclesiastical Law," section 445), and seems to be a correct statement of the result of the Massachusetts cases. The case of Kellogg v. Dickenson (18 Vermont Rep. 266), may be also usefully referred to. If a church edifice is taken down from necessity, because it has become ruin- ous and unfit for the purposes of worship, no compensa- Peivs and Pew-holders. 240 tion is to be made. In other cases of alterations, it must be. Mr. Buck of Boston, has lately published a work on the ecclesiastical law of Massachusetts ; and he states the law on this head to be, " that no compensation is given where the house is taken down on account of its permanent unfit- ness for public worship. Otherwise, if it is temporarily unfit, and does not require entire demolition." (p. 140.) In Wheaton v. Gates (18 N. Y. Rep. 396), Judge Denio thus states the rules : " If the edifice were destroyed, or if it became permanently unfit for the purposes of public wor- ship, the rights of pew-holders ceased. I do not say what interests they would retain in case of extension and costly reparations, and great changes not destroying the identity of the building ; for that question is not before us. Where the edifice was reasonably capable of further use as a church, the interests of the pew-holders would, no doubt, be a subject to be considered by the Court." This was said in reference to an application for a sale. " But if overruling considerations existed, rendering it expedient upon the whole matter, that a sale should take place, the interests of owuers of pews would necessarily be destroyed." From these authorities we may conclude : That when a removal has been decided upon, and has been sanctioned, as when an approval by the Court to a sale has been obtained, the rights of a pew-holder stricti juris are terminated. The situation of a church edifice as to its fitness for worship has not a decisive, and may not have any influence upon the question. When an absolute, utter demolition has taken place, whether it has proceeded from the fall of the building, from decay, entire destruction by fire, or a justifiable tearing down on account of decay and danger, and a rebuilding on the site, it is probable, the rights of pew-holders are also at an end. But it must be noticed that there is not a case in our State deciding the point distinctly. There is as much indirect authority supporting some right in the pew-holder, as against it. " While the house remains, the right to the 250 Ecclesiastical Law in the State of New York. pew is absolute." And see the cases before the Vice-Chan- cellor, before cited. In the case of St. Georg-e's Church, Stuyvesaut Square, several important questions arose. An opinion was taken from the writer and Mr. S. Cambreling. The main facts were as follows : — St. George's Church was erected out of funds of the cor- poration, and cost about |275,000. The vestry affixed a price or valuation on each of the pews, except two specially reserved. The amount of such valuation was $115,856. They were sold upon permanent leases at such prices, sub- ject to such rent or assessment as the vestry might impose. Many pews were purchased, down to the fire in 1805 ; others were leased from year to year at fixed rates. The form of the transfer of pews sold was as follows : — " Know all men by these presents, that we, the Rector, Church-wardens, and Vestrymen of St. George's Church, in the city of New York, in consideration of the sum of dollars, paid to us by of said city, the receipt whereof is hereby acknowledged, have granted aud sold, and by these presents do grant and sell, unto the said , all that certain pew in said Saint George's Church, in the city of New York, fronting on Sixteenth Street and Rutherford Place; such pew being known and numbered — . To have and to hold the same unto the said , his heirs and assigns, so long as the said church edifice shall endure, subject to such annual rent as we, or our successors, shall from time to time, impose on the said pew. Provided, that if, at any time, default be made in the payment of such rent for the space of two years, it shall be lawful for us and our successors to reenter on the said pew, and sell and dis- pose of the same in like manner as if these presents had never been made or executed, rendering the surplus moneys, after deducting all the arrears of rent then due with inter- est thereon, and all costs and charges attending such sale, to the said , his heirs or assigns. Provided, also, that no alteration shall be made in the said pew hereby granted, and that no assignment or sale of the same shall Peivs and Pew-holders. 251 be valid and effectual without the couseut of the said church thereunto obtained." The church took fire in November, 1865. The roof, gal- leries, pews, floor, stairs, doors, and windows were destroyed, except those of the two vestry-rooms, which were damaged. The main outer walls remained standing, although greatly damaged on the inner face. The stone work around the windows and doors was injured so as to be unfit for use, and the wall between the porch and the body of the church was so damaged that it had to be removed. The stone towers were damaged, but capable of being repaired. The amount insured upon the church was f 70,000, which was collected. The cost of rebuilding was stated at -^164,- 000. Contributions had been made to $70,000, without any conditions as to the appropriation of the new pews. The contributions were in part from persons who held deeds for their pews, and partly from others. At the time of the fire, there had been 101 pews deeded, of the price of . . . 854,900 And not deeded " " .... 60,950 $115,850 To pay for the reparations of every kind, about $24,000 was required beyond the insurance money and contributions. The following opinion was given : — Upon the case submitted to us by the vestry of St. George's Church, and the questions annexed, we reply — 1. The vestry, without the sanction of the parisliioners, had the right to decide upon the propriety of rebuilding the church in its former situation, and upon the plan of re- building. We do not consider that the vestry was under any legal obligation to the pew-holders by deed, to rebuild. Their duty embraced the whole body of worshipers, and to carry out great religious purposes. But having so decided, and without a dissenting opinion, they were authorized to adopt a plan varied or otherwise, and to apply the insurance money and other funds within their control to the object. 2. The parties who merely rented pews from year to year, 252 Eeelesiastical Laio in the State of New York. the time having expired, have no claims upon the corpora- tion, and are under no obligations to it. We do not see that any question can arise as to this class, 3. We understand that some of the contributors are not pew-holders. We consider that the contributions made by them impose no legal obligation on the vestry to transfer to them pews or seats. 4. As to the pew-holders under the instruments of trans- fer from the vestry — (1.) We do not think that any separate right has accrued to such pew-holders, by reason of their subscriptions or donations towards the erection of the new edifice, upon the facts in the case. The pew-holders who have not subscribed and they who have, are, in relation to the corporation, upon the same legal footing. (2.) We understand that the pews on the floor and in the galleries, will be the same substantially as before ; that the pews will respectively actually occupy the same, or nearly the same, site as before, or with immaterial deviations. An occupant of a former pew can be reinstated in the same or nearly the same position. We are of opinion, that upon the new edifice being com- pleted, the rights are so far revived, as that the pew-holder should be entitled to occupy, upon the same terms as before, a pew in the same position as his former pew, or as nearly conformable to that position as can be ; but this upon the condition of his paying the cost of reconstructing the pew, or such cost, after deducting a proportion of the insurance money, if the vestry shall think proper, but is not legally bound, to allow. A resolution of the vestry recognizing this right, and for ascertaining the estimated cost, is suggested. Mr. Cambreling and myself concur in the conclusion, that the relations of the parties ought to be settled upon equita- ble principles, and these are what we have above stated. In my individual opinion, the Courts would declare the same to be matters of law. New York, Januaiy, 1867. Peivs and Peiv-Jiolders. 253 A paper accompanied this opinion in which all the above cited authorities were noticed. The paper proceeded as follows : — " We may now examine particularly the contract in this case between the corporation and the pew-holder. The lat- ter is entitled to hold the pew ' so long" as the church edifice shall endure.' " What is the just construction of this stipulation? Certainly an injury to other portions of the edifice, rep- arable out of adequate funds of the corporation, would not impair his rig-lit. Equally clear is it, that a partial destruc- tion whether of pews or other portions, which the insurance money could fully repair, would not have such an effect. The duty so to apply the insurance money is plain. The pew-rent paid by a pew-holder went into the fund, out of which the premium as well as other charges were paid. Suppose a destruction by fire of a certain number of pews and no insurance. If the pew-holders offered to reconstruct them, it is impossible that the trustees could legally refuse permission, exacting of course conformity in materials, etc. But the corporation has not insured the pew from destruc- tion or injury in favor of the holder; nor is there any stipu- lation to that effect. Yet the trustees would be bound to replace the pew for the corporate religious purposes. The principle then of a total demolition of the edifice termi- nating all rights, leads to the conclusion, that a partial destruction modifies them. So in the case supposed, the trustees replacing the pews destroyed, would have a right, and as we think in equity would be bound, to proffer them to the holders of the destroyed pews, they paying the cost of reparation. If this was refused, the right and title of the holder would cease, and the title of the corporation become absolute. It seems to us, that these just and most equitable princi- ples may fairly be elicited from the authorities, as the law to govern the case supposed. The application of such principles in the present instance is Aaried by the reception of the insurance money. 254 Ecclesiastical Law in the State of New York. The pew-liolders may, with much apparent equity, ask, that a proportion of this money should he applied to the replacement of the pews. Thus, the whole cost is to he $164,000, and the insurance money is i70,000. The sepa- rate cost of reconstructing the pews should be ascertained. What proportion that bears to the whole cost, is the propor- tion of the insurance money to be allowed. But we think that in strictness, the actual cost of reparation may be im- posed without such allowance or appropriation of part of the insurance money. Each holder of the 191 pews, held under the permanent leases, will thus be chargeable with a definite sum, not per- sonally, but as a condition of his right to retain the site and reoccupy the new pew upon it. We have no doubt of the power of the vestry to allow this, amount as payment in whole or in part of the contribution of a pew-holder. CHAPTER XXI. DISTURBANCE OF EELIGIOUS WORSHIP. § 1. (1.) No person shall willfully disturb, interrupt, or disquiet any assemblage of people met for religious worship, by profane discourse, by rude and indecent behavior, or by making a noise, either within the place of worship, or so near to it as to disturb the order and solemnity of the meeting. (2.) Nor shall any person, within two miles of the place where any religious society shall be actually assembled for religious worship, expose to sale or gift, any ardent or dis- tilled liquors, or keep open any huckster shop in any other place, inn, store, or grocery, than such as have been duly licensed, and in which such person shall have usually re- sided or carried on business. (3.) Nor shall any person within the distance aforesaid, promote, aid, or be engaged in any racing of any animals, or in any gaming of any description. (4.) Nor shall any person obstruct the free passage of any highway to any place of public worship, within the distance aforesaid. (1 R. S. 674, § 64. Edmonds' edi- tion.) § 2. Whoever shall violate either of the provisions of the foregoing section may be convicted summarily before a justice of the peace of the county, or any mayor, recorder, alderman, or other magistrate of any city, where the offense shall be committed, and on such conviction, shall forfeit a sum not exceeding twenty-five dollars, for the benefit of the poor of the county. (Ibid. § 65.) § 3. It shall be the duty of all sheriffs and their deputies, coroners, marshals, constables, and other peace officers who may be present at the meeting of any assembly for religious 256 Ecclesiastical Law in the State of New YorJc. worship, which shall be interrupted or disturbed in the manner herein prohibited, to apprehend the offender, and take him before some justice of the peace, or other magis- trate authorized to convict as aforesaid, to be proceeded against according to law. (Ibid. § 66.) § 4. All judges, mayors, recorders, aldermen, and justices of the peace, within their respective jurisdictions, upon their own view of any person offending against the provis- ions of this article, may order the offender into the custody of any officer in the preceding section named, or of any official member of the church or society so assembled and disturbed, for safe keeping, until he shall be let to bail, or a trial for such offense be had. (Ibid. § 67.) § 5. If any person convicted of any of the offenses herein prohibited shall not immediately pay the penalty incurred, with the costs of the conviction, or give security to the sat- isfaction of the officer before whom the conviction shall be had, for the payment of the said penalty and costs, within twenty days thereafter, he shall be committed by warrant to the common jail of the county, until the same be paid, or for such terms not exceeding thirty days, as shall be specified in the warrant. (Ibid. § 68.) § 6. Whenever complaint shall be made to any justice of the peace, mayor, recorder, or alderman, of a violation of either of the provisions contained in the last three articles, relative to profane swearing (the 6th), the disturbance of re- ligious meetings, or the observance of Sunday (the 8th), or when any such violations shall happen in the presence of such officer, he shall cause the offender to be brought before him, and shall proceed summarily to inquire into the tacts ; and if the person charged, be found guilty, a record of his conviction shall be made and signed by such officer, before issuing any process to enforce the same ; which conviction shall be final, and shall not be reexamined upon the merits in any court. (Ibid. p. 676, § 73.) § 7. No prosecution shall be maintained for any of the violations specified in the preceding section, unless the same be instituted by the actual issuing of process to apprehend Dlsiurhance of Reliffioiis Worship. 257 the offender, or by his actual appearance to answer the complaint within twenty days next after tlie offense com- mitted. (Ibid. p. 677, § 74. § 8. Upon a conviction being had for any of the offenses in the last three articles specified, where no other special provision is made for the collection of the penalties incurred, the magistrate, before whom the same is made, shall issue an execution to any constable of the county, commanding him to levy the said penalties and the costs of the conviction, by distress and sale of the goods and chattels of the offender ; and in case sufficient goods and chattels cannot be found, then to commit such offender to the common jail of the county, for such time as shall be specified in the said execution, not less than one day, nor more than three days. (Ibid. § 75.) § 9. Within thirty days after any such conviction shall be had, the magistrate making the same, shall cause to be filed in the office of the clerk of the county, a certificate of such conviction, briefly stating the offense charged, the conviction and judgment thereon, and if any fine has been collected, the amount thereof, and to whom paid. (Ibid. § 76.) § 10. In all prosecutions for any of the offenses specified in the last three articles, the like fees shall be allowed and taken, as in civil suits before justices of the peace, which shall in no case exceed five dollars, and be paid by the party off'ending, over and above the penalties incurred ; but in case of the imprisonment of the offender, no charges or fees shall be allowed. (Ibid. § 77.) In The First Baptist Church v. The Schenectady, etc., Railroad Company (5 Barbour's Rep. 79), it was held, by Harris, Watson, and Parker, Justices, at General Term, that an action would lie on behalf of a religious corporation against a railroad company, for running their cars, blowing off steam, ringing bells, and making other noises in the vicinity of a church, during public worship on the Sabbath, by which the congregation was so annoyed as to depreciate the value of the house of worship. The depreciation of the 17 258 Ecclesiastical Law m the State of New York. property for the purposes to which the owner had devoted it, was enough. But in The Trustees of the First Baptist Church, etc. v. The Utica, etc. Raih-oad Co. (6 Barbour's Rep. 313), before Justices Cady, Willard, and Hand, the reverse was decided. That the corporation coukl not sustain such an action, the damages being too remote. If they coukl not recover on the ground of injury to property, they could not at all. The molestation was to the worshippers. What was authorized by the leg'islature could not be a nuisance. Even if it were a public nuisance, an individual attendant could not sue. He received no special damage. In Owen t\ Hinman (1 Watts & Serg. 548), the action was by a member of a Presbyterian Church, complaining of the defendant interrupting his religious worship by loud singing and talking. The Court held such an action would not lie. The plaintiff claimed no property on the building or a pew in it. There is no damage to his property, health, reputation, or person. The injury complained of, if against the will of the officers of the church, is in the nature of a nuisance or injury to them, and it is for them to seek re- dress. It is well known that the property of our churches and meeting-houses, and the superintendence of the con- gregations, and the right to control and regulate them, and to prevent improper intrusion or interference, is vested uni- formly in some corporation or trustees, in whom is placed the power to enforce the will of the owners. Under the clause of the statute marked ante, § 4, it was decided in Farrell v. Warren (3 Wendell, 253), that a justice of the peace, etc., could, upon his own personal view of an offense committed against the act, put the offender in cus- tody of a constable, without issuing' a warrant. In proceeding under the statute against a disturber of a religious meeting, it is not necessary that process should actually issue. The main purpose of the 7th section was to limit the time within which proceedings must be com- menced; but parties may voluntarily, within that time, as in Disturbance of Religious Worship. 259 other cases, appear and join issue, or confess the complaint. (Foster v. Smith, 10 Wendell, 377.) A person arrested as an offender under the act by warrant, must be carried before the magistrate who issued such war- rant. (The People v. Fuller, 17 Wendell, 211.) The justice cannot, on the return of process personally served, proceed to hear the proofs, and convict the party, without a personal appearance. He must be brought before him. (Bigelow v. Stearns, 19 Johns. Rep. 39.) The following points were established in the case of Wall V. Lee, 34 N. Y. Rep. 141, Court of Appeals. A person disturbing a religious meeting during services, may be removed from the building by the application of force sufficient to effect that purpose. To justify such a removal, and the force necessary to effect it, it is not requisite that the disturbance should be willfully made. If the proceeding was under the statute against a person as a disturber, then the willfulness of the act must be stated and proven. But in every congregation assembled for religious pur- poses, there must necessarily exist the power to preserve order and to expel any one guilty of a disturbance, and who should persist in it so that worship could not be con- ducted in an orderly and proper manner. In Roman Catholic churches the appropriate person to preserve order is the priest. He can call upon others to aid him. The defendant was such a priest, and had tried to re- move the plaintiff. CHAPTER XXII. THE DISMISSAL OF MINISTERS. The important point of the dismissal of ministers is much influenced by the special regulations of different denomina- tions. These will be noticed to some extent in considering the subject. We should, however, first recollect the decided assertion of the permanence of the relation of rector and parish found in the English law. The tie cannot be broken ex- cept by judicial sentence or resignation to, and acceptance by, the Ordinary. ^ It is stated by Bishop Gibson that the Ordinary is not bound to accept, but is the judge of the motives for the application, and that there is no remedy if he will not accept, more than if he will not ordain.^ The eloquent language of Lord Stowell ^ as to the relation of husband and wife, may well be applied here. " When peo- ple understand that they must live together, except for a few reasons known to the law, they learn to soften, by mutual accommodation, that yoke which they know they cannot shake off. They become good husbands and good wives, from the necessity of remaining- husbands and wives, for necessity is a powerful master in teaching us to bear the duties it imposes." See also a striking passage in Hume's " Essay on Polygamy and Divorce," Essay 19. The following are the strong expressions of the Rev. Mr. Thatcher of Massachusetts. No description of men under 1 Burns' Ecclesiastical Law, vol. iii. p. 540, etc. 2 Codex, p. 822. Marchioness of Rockingham v. Griffith, 3 Burrows, p. 543. As lonj^ afi-o as the year 740, it was declared that priests he neither constituted to any church, nor ejected from it, without the authority and consent of the Bishop. Egghright's Exceptions, Johnson's Laws, etc., vol. i. j). 158. 8 Evans v. Evans, 1 Haggard's Cons. Rep. 36. The Dismissal of Ministers. 2G1 the government of Jews, Turks, or Pag-ans, were so badly off as the clergy of New England, on the supposition that the power of dismission lies with the people.^ § 1. The Supreme Court of Massachusetts thus declares the law of that State : " It has been the uniform opinion of all the judges of the higher courts, that where no tenure was annexed to the office of a minister by the terms of set- tlement, he did not hold his office at will, but for life, de- terminable for some good and sufficient cause, or by the consent of both parties.^ But the Courts have sanctioned such special contracts, and also modes of effecting a dissolution plainly agreed upon. Where no special contract existed, the Cambridge platform had prescribed that there must be the sanction of a council, and the Courts have recognized this rule of the Church."^ The nature of these councils will be found in Bucks' " Mass. Ecc. Law," p. 211, etc. I refer to a few authorities as to the office of these councils. They are distinguished as ex imrte and mutual councils. It is only when a mutual council has been proffered and de- clined, that an ex jxirte council can be called. Such refusal must be positive and unconditional. (Thompson v. Relio- both, 7 Pick. 163 ; Whitmore v. Fourth Cong. Society, 2 Gray, 306 ; Burr v. Sandwich, 9 Mass. 277.) I judge that the earlier cases held, that the conclusion of an ex parte council duly convened, if accepted by one party, bound the other in the civil courts, much more that of a mutual council. But the later authorities appear to estab- lish these points. That the determination of a council is not a judgment, unless accepted by both parties, and until this has taken place, the Supreme Court has no power to enforce it It is said in one case, that there was neither common law nor equity power to enable it to do so, as the parish had not, in the opinion of the Court, upon the evidence, accepted the 1 Quoted Bucks' Ecclesiastical Law, p. 90. " Avery V. Tyringham, 3 Mass. Rep. 160. 8 Cochran v. Camden, 15 Mass. Eep. 304 ; Sheldon i'. Easton, 24 Pick. 286. 262 Ecclesiastical Law in the State of New York. result. An action, therefore, for the recovery of a sum ad- judged by the council to be paid to the minister, could not be supported. (Stearns v. Bedford, 21 Pick. 214.) Again, the Court looks behind the adjudication. It must appear: (1.) That the cause for calling the council was suf- ficient. (2.) That the members were properly selected. (3.) That they proceeded impartially, and with due respect to the rights of all parties. (4.) That their conclusion, besides being formal and explicit, is based on grounds that will support it; and finally, that the result of a council, even thus unexceptionable, is only jjn'ma Jade evidence, and de- rives its binding force mainly from the consent of parties. (Stearns v. Bradford, and Mr. Bucks' Summary, Mass. Ecc. Law, p. 244.) § 2. Reformed Dutch Church. By section 18, article 1, chapter 1, of the Constitution of the Reformed Dutch Church of North America, " for the reg'ular dismission of a minister, who has received and accepted a call from another place," it is required, " that a neighboring minister of the same Classis to which the congregation belongs, be invited to be present and superintend the dismission of the minister from his congregation, couutersign the instrument of dis- mission, and to deliver the same, with a report upon the subject, to the Classis, which report and document shall serve as a basis upon which the final dismission and certifi- cate of the Classis shall be founded. Section 10 of article 3 is identically the same as the above, omitting the words " who has received and accepted a call from another place." The form. Appendix No. 4, states that the undersigned was present at a meeting of the Consistory of , on, etc., when it was resolved, that an application be made to the Classis of for a dissolution of the pastoral connection between the Reverend , and the said church ; and that the said Reverend declared his concurrence in such application. I doubt, therefore, whether these provisions cover the case of a hostile dismission by the congregation with the sanction The Dismissal of Ministers. 2G3 of Classis. Amoug the powers enumerated as belonging to Classis is that of dismissing ministers when called elsewhere. The cases provided for, seem to be those of a voluntary resignation upon a call elsewhere, or without it, sanctioned and recorded by an ecclesiastical authority. When any minister shall be duly convicted of any offense which implicates the purity of his clerical character, and shall, in consequence of such conviction, be suspended from his office, and the conviction and suspension shall be sus- tained on a final appeal, his pastoral connection with the congregation in which he was settled, shall (if the Consis- tory so elect), be ipso facto dissolved. (Art. II. § 14.) The case of The Reformed Dutch Church of Albany v. Bradford (8 Cowen's Rep. 457), is an instructive decision upon this, as upon several other points. The call of Dr. Bradford under the corporate seal, was made in 1805, and stipulated that the church would pay him the sum of fifteen hundred dollars yearly, and every year, " so long as you continue our minister in the said church, and remain unmarried," and upon his marriage, to pay the further sum of 8250 annually. In 1813 the salary was fixed at $2000. It had been paid up to the 2d of December, 1820, but not afterwards. The action was for the arrears. Proceedings had been instituted by the elders and deacons of the Consistory of the church, before the Classis for an inquiry into rumors affecting the minister's character. The Classis had met. The plaintiff, upon notice, appeared before them, took objections to the regularity of the proceedings, which were overruled, and an investigation took place as to whether the reports were of such continuance and extent, as to constitute what is called common fame. The Classis determined that they were so. The Consistory was then directed to make specfic charges against the plaintiff, with the names of the witnesses. This was done, and the charges openly read to the plaintiff, who put in a general denial of their truth, and asked for time to prepare his defense. This was granted with liberty to the Consistory to furnish other specifications and names of witnesses, serving a copy four- 264 Ecclesiastical Laio in the State of New York. teeu days before the next meetiug of Classis appointed for hearing the cause. After a full hearing, the Classis resolved, that the plain- tiff had been guilty in repeated instances of intoxication. That he be, and he is, hereby suspended from the office of the ministry, until he shall give Classis evidence of his re- pentance and reformation. This was on the 27th of Novem- ber, 1820. An appeal was taken before February, 1821, to the partic- ular Synod, which rejected it on the 16th of May, 1821. An appeal to the General Synod was also disallowed. On the 22d of February, 1821, Classis resolved, that the pastoral connection between the parties be dissolved. Au appeal was taken from this decision, ultimately to the Gen- eral Synod. The appeal was sustained, on the ground that Classis could not proceed to a dissolution pending an appeal from the sentence of suspension. But at the same time (14th June, 1821), the General Synod advised Classis to proceed to such dissolution, the appeal from the judgment of suspension being disallowed. This was done by a formal act of the 26th of June, 1821. It was decided in the Supreme Court that the minister's salary, for the period between the sentence of suspension and that of the dissolution of the pastoral connection, could be recovered. The contract was to pay him so long as he remained their minister, not so long as he performed the duties. Savage, Ch. J. dissented. The Court of Errors held, that the plaintiff below was not entitled to recover his salary for the period between his suspension and final dismission. The contract was to be considered as implying the actual continuous discharge of pastoral duties. If the inability arose from his own fault, he could not support his claim. Many members of the Court, and of high authority, took a different view. § 3. The Presbyterian Church. By the regulations of the Presbyterian Church (Form of Government, chaps, xv. xvi.), there can be no removal of a pastor from one church The Disimssal of 3Imisters. 265 to another, nor shall he receive any call for that purpose, but by permission of the Preshyteiy. The mode of pro- curing this is pointed out. " And when a minister shall labor under such g-rievances in his congregation as that he shall desire leave to resign his pastoral charge, the Presbytery shall cite the congrega- tion to appear by commissioners, to show cause wdiy the res- ignation should not be accepted." That body passes upon the case. " And if any congregation shall desire to be re- leased from their pastor, a similar process, mutatis mutandis, shall be observed." A Presbytery consists of all the ministers, and one ruling elder from each congregation within a certain district. By chapter 11, section 14 (Forms of Process), as soon as a minister is deposed, his congregation shall be declared vacant. Is this to be interpreted as requiring some further official declarative act ? If so, by what body ? Perhaps in the sen- tence of deposition, a clause to that effect could be inserted. In the Dutch Reformed Church, as we have seen, dismission is a formal official act consequent upon deposition. [Ante, § 2.) § 4. Protestant Episcopal Church. The first regulation of the Protestant Episcopal Church upon this subject, was the canon of 1804.^ Whenever any minister has been regu- larly inducted or settled in a parish or church, he shall not be dismissed without the concurrence of the ecclesiastical authority of the diocese or State ; and in case of such dis- mission without his concurrence, the vestry or congregation of such parish or church shall have no right to a represen- tation in the convention of the State, until they have made such satisfaction as the convention may require. Nor shall any minister leave his congregation against their w ill, without the concurrence of the ecclesiastical au- thority aforesaid ; and if he shall leave them without such concurrence, he shall not be allowed to take his seat in any convention of the church, or be eligible unto any church or parish within the States which have acceded to the consti- 1 Hawks' Constitutioti and Canons, p. 305. 266 Ecclesiastical Latv in the State of Neio YorJc. tiition of this church, until he shall make such satisfaction as the ecclesiastical authority of the diocese or State may require." The change made in 1808 was by substituting the word instiiuted for " inducted," and adding the following clause : " This canon shall not he obligatory upon those States or dioceses with whose usages, laws, or charters it interferes." The canon of 1832 (Canon 33), was the same. In the Convention of 1865, it was amended, so as to read as follows : — " In case a minister, who has been regularly instituted or settled in a parish or church, be dismissed by such parish or church without the concurrence of the ecclesiastical au- thority of the diocese, the vestry or congregation of such parish or church shall have no right to a representation in the convention of the diocese, until they shall have made such satisfaction as the convention may require; but the minister thus dismissed shall retain his right to a seat in the convention, subject to the approval of the ecclesiastical authority of the diocese. "• And no minister shall leave his congregation against their will, without the concurrence of the ecclesiastical au- thority aforesaid ; and if he shall leave them without such concurrence, he shall not be allowed to take his seat in any convention of this church, or be eligible into any church or parish, until he shall have made such satisfaction as the ecclesiastical authority of the diocese may require ; but the vestry or church shall not thereby be deprived of its right to a representation in the convention of the diocese. " This canon shall not be obligatory in those dioceses with whose canons, laws, or charters it may interfere." There are some points of importance arising under these provisions. The office of institution is, in the judgment of the author, not necessary to entitle the minister to the rights which he possesses by virtue of his call and admission as rector.^ That office contains this clause : " And in case of any 1 Law of the Church, p. 291. The Dismissal of Ministers. 2G7 difference between you and your congreg'ation as to a sepa- ration and dissolution of all sacerdotal connection between you and them, we, your Bishop, with the advice of our presbyters, are to be the ultimate arbiter and judge." In Hoffman's " Law of the Chnrch," p. 331, is a statement of a case which occurred in 1848, in New York. The stand- ing committee (the Bishop being suspended), upon an ajjpli- cation of a vestry, required a statement in writing of the reasons for seeking a dissolution, and a request for concur- rence, holding that an absolute dismission and then a re- quest was premature. This being laid before them, and proof of reasonable notice of its presentation being made, and the minister not appearing, it was resolved, that the concurrence of the committee as the ecclesiastical authority of the diocese be given to the dismission of the Rev. Mr. , from the church of . Two cases in Connecticut are also noticed, in which it was decided that a formal resignation accepted by the congrega- tion, should receive such approval. The acceptance was by the body of parishioners, at a regular meeting. From this review of our Church legislation, it follows — That undoubtedly, the power to dissolve the connection between minister and congregation, resides in the cong-re- gation {or in the vestry), with the sanction of the ecclesias- tical authority. And I cannot question, that such a dissolution, regularly made, will discharge all obligations and contracts between the parties. See j^ost, chapter 23. But what are the consequences if the dismissal is without such concurrence ? The alteration of the canon in 1865, was in consequence of a resolution instructing the committee on Canons to re- port such an amendment as will remove the ambiguity which exists as to the effect of a dismissal by a parish of its min- ister, without the consent of the ecclesiastical authority. (Reporter, p. 57.) It was stated, that cases had arisen in which the question was. Whether after such dismissal and exclusion from convention, the connection absolutely ceased ? That eminent connsel had differed upon the point. 2G8 Ecclesiastical Laio in the State of Neiv York. An argument upon that question (before the amendment) maybe thus stated. The canon forbade the dissohition with- out consent, in express terms, and in an independent propo- sition. Then a penalty was dechired, namely, exchision from a place in convention, of the congregation acting without the concurrence. Was this — could this be anything more than the ecclesiastical punishment for the disobedience to the rule ? The General Convention either could not, or deemed it unwise to go further, but left the effect of the act upon the contracts and obligations of a civil nature, for decision by the civil courts. (Hawks' Const, and Canons, 309, 310.) To the canon of 1808, relating to Institution, was added the following : But it is to be understood that this Church designs not to express any approbation of any laws or usages which make the station of a minister dependent on anything else than his own soundness in the faith, or worthy conduct.^ Again in the Institution Office, after recognizing a separa- tion by mutual consent, we find this language : " And in case of any difference between you and your congregation as to a separation and dissolution of all pastoral connection between you and them, we, your Bishop, with the advice of our Presbyters, are to be the ultimate arbiter and judge." In Young v. Ransom (31 Barbour's N. Y. Rep. 49), Mr. Justice Emmot expressed the opinion, that the concurrence of the ecclesiastical authority was essential. But it must be admitted, that the amendment of 1865 appears to recognize the power to dismiss, if the congrega- tion are ready to submit to the penalty. It will deserve great consideration whether this can be ac- cepted as law (in the civil courts at least), when the pastoral relation was formed before the amendment of 1865. In a case in Michigan in 1866, after the amendment, some questions of moment arose. The assent of the authority had been given. Hence the amendment did not influence the case. 2 1 Hawks' Constitution and Canons, p. 276. 2 Journal (»f the Convention, 1866. Panijililct by a former member of the vestry. Detroit, 1867. The Dismissal of Ilinisters. 2G9 There the vestry after requesting a resignation by the rector, which was declined, passed a resohition of dismis- sion. The Bishop, after consulting the standing commit- tee, approved of it. In the pamphlet referred to, a com- mittee of the congregation state that a large majority of the pew-holders expressed their unaltered confidence in the rector. It is said that although only i)ew-holders and com- municants were solicited, two hundred and fifty-seven names were attached to a paper containing a strong approbation of his conduct. It deserves consideration whether the true sense of the present canon is not, that the act of dismission must be the act of the congregation or parishioners, not of the vestry. In the case of the Rector of St. Peter's Church, Salem, Massachusetts, in April, 1865, the congregation, at the an- nual Easter meeting, adopted by a vote of 37 to 9, a resolu- tion that the pastoral relation between them aiul the rector be dissolved, and applied to the Bishop for his concurrence. Any attempt to cast reproach upon the rector was disavowed, and the Bishop stated it would be an act of great injustice to concur. The language of the canon as amended in 1865, gives strength to the above suggestion : " In case a minister settled in a parish or church, be dismissed by such parish or church, without, etc." The language before was, "A minister settled, etc., shall not be dismissed, without, etc." Hence the vestry as a representative of the congregation, may have been treated as competent to dismiss. But the phraseology now used seems to imply that the power is in the parish or church, parishioners or members, entitled to vote. § 5. Proceedings. Another point appears to the author to be quite clear. When the sanction of the ecclesiastical au- thority is sought, a duty is imposed, as well as a power con- ferred. It cannot concur upon any ex parte statements, or without an examination. The right to be heard is a com- mon law right, and must be observed, before any penalty of any description can be lawfully inflicted. If the couse- 270 Ecclesiastical Laiv in the State of Ncio York. queuce of a dismission with coucuiTeuce is to dissolve, and discliarge the civil relations and contracts of the parties, it can only be so permitted when the essential rules of the law are observed. A competent authority to hear and decide — a proper reasonable notice of the matters objected to — an opportunity to meet and reply to them, are fundamental. The opinion of that sound lawyer and canonist, Mr. G. M. Wharton, upon the case in Michigan, was, that a vestry had no right to dismiss a rector without accusation or trial. The legislation of 1865 prevents the dismissal of a minister by a vestry with the assent of the Bishop, from being unca- nonical, and relieves the parties from the penalties of the canon. I do not think, however, that it makes good a dis- missal without trial, or that it dissolves the contract between him and the parish. Such a result would be a violation of general principles, and, I think, the law of 1865 should be construed in subordination to these.^ This was given in December, 1866. In the case before the standing committee of New York, in 1848, before noticed, a written statement of the grounds of the application was required, a copy served upon the minister with notice of the day of presenting it, and action was had upon his neglect to appear. The subject was brought before the Convention of Ohio by the Bishop in 1865. He apprised the Convention that a particular vestry had notified him of the dismissal of their regularly settled minister, and without the consent of the ecclesiastical authority. The committee to which the communication was referred, including distinguished lawyers, reported that they were clearly of opinion, that the action of the vestry was a viola- tion (unintentional in their judgment) of Canon 4, title 11, of the General Convention. They had received communi- cations which led to the belief of an accommodation l)eing effected. But another and very important and valuable action of this Convention was had. 1 Pamphlet before quoted. At page 28 is a very sensible letter of the Rev, A. DeWolfe Howe, expressing similar views. The Dismissal of Ministers. 271 The Bishop in his address noticed that there had been until 1859, two canons of the General Convention relating to the dissolution of the pastoral connection. One, the ex- istiug Canon 4 of title 11, and the other of differences be- tween ministers and their congregations ; that in 1859, a substitute for this canon had been reported by the joint com- mittee on canons, which was not acted upon, while the orig- inal canon was repealed. The last clause of the substitute proposed, declared that it should not be binding where a diocese had made or should thereafter make provision by canon on the subject. The Bishop forcibly points out the evil of a vestry dis- missing a rector, and then asking a concurrence. The standing committee of New York, in a case referred to in Hoffman's " Law of the Church," p. 330, held that the ap- plication for concurrence must precede the act of dismission. The Bishop then notices as a sound principle that where the rights and interests of both minister and congregation are concerned, the body to judge should be composed of clergy and laity. And he refers to the suggestion that the standing committee of a diocese would be a proper body to collect the facts and present the result to the Bishop. The Convention acted by adopting an admirable canon which is as follows : — § 1. Whereas it is provided in Canon 4, title 11, of the digest of canons of the General Convention, that when a minister has been regularly settled in a parish or church, he shall not be dismissed without the concurrence of the eccle- siastical authority of the diocese ; it is hereby provided that in cases of controversy between any rector or assistant min- ister of any church or parish which cannot be settled by the parties themselves, the said parties or either of them may make written application to the Bishop of the diocese, who shall thereupon nominate four presbyters and four laymen of the diocese, and cause a list of their names to be served upon the rector or assistant minister, and also upon the clerk or secretary of the vestry, upon one or more of the applicants on behalf of the congregation, who shall, within 272 Ecclesiastical Laiu in the State of Neio York. ten days after such service, return their respective lists to the Bishop, each party having* the right of striking- off the name of one clergyman and one layman ; and should this right not he exercised, or both parties strike off the same names, then the Bishop shall reduce the number in the man- ner above prescribed to four, three of whom shall constitute a quorum, and shall meet at such time and place as the Bishop may designate, and of which due notice shall be given to the parties concerned, in order that the grounds of the controversy may be fully stated and the case fully heard. § 2. If it shall appear to a majority of the board thus summoned, after a full examination of the case, that there is no hope of a favorable termination of such controversy and that a dissolution of the connection is necessary, tbey shall recommend to such rector or assistant minister, to re- linquish his connection with such parish, on such conditions as shall appear to them proper and reasonable. § 3. The said recommendation shall be submitted in writing, and in duplicate to the Bishop, who, if he shall clearly disapprove of the same, may set aside said recom- mendation, and nominate a new board which shall proceed in the manner hereinabove mentioned, and whose recom- mendation and finding shall be final. Tbe Bishop shall make known to the parties the said recommendation if not set aside, or if set aside, then the said final recommendation, within ten days after the receipt of the same, and he shall report all proceedings to the Convention at its next annual meeting, with a statement of the grounds of his action in case he shall have disapproved of the first finding in any case as aforesaid. § 4. Should the rector or assistant minister refuse to comply within ten days after the decision shall have been made known to him, he shall be liable to suspension from the exercise of all ministerial functions until he submit to such decision. § 5. And if the vestry of the church or the congregation refuse or neglect to comply on their part with the decision aforesaid, the said parish shall be prohibited from a repre- The Dismissal of Jlinistef^s. 273 sentatioii in tlie Convention of the diocese, until they shall have performed their duty in accordance with the same. It is submitted, that a canon framed upon the followinj^ basis, would be expedient : Making the assent of the eccle- siastical authority to the dissolution of the connection and dismission of a minister, absolutely essential. If, upon written statements of the parties, such authority cannot produce a reconciliation, or obtain a consent to the dissolution, a commission shall be ai)pointed of two presby- ters and two laymen, to inquire and report upon the case, upon notice to both parties. Upon the written request of either party, the ecclesias- tical authority shall nominate four presbyters and four lay- men, etc. [Adopting the Canon of Ohio as above.] 18 CHAPTER XXIII. THE INTERPOSITION OF CIVIL TRIBUNALS. In no part of the world is the great principle of the ex- clusive rule of the Church in matters ecclesiastical, and of the State in matters civil, more generally recognized than in the United States. The provision in the Statute of 24 Henry VIII., is almost universally admitted : " Causes spiritual must be judged by judges of the spirituality, and causes temporal by temporal judges." I cite some leading cases to show the adoption and application of this maxim. § 1. Sentences. In Den v. Bolton (7 Halstead's N. J. Rep. 206), the Court say : " All disputes arising in the Dutch Reformed Church respecting the validity of an appointment, or call of elders and deacons, must be referrred to the church judicatory, to which the congregation is subordi- nate ; that is, first the Classis, next to the particular Synod, and lastly to the General Synod. At a meeting of the Classis to which the congregation, of which the Reverend Mr. Demarest was pastor, was subject, he was suspended from the ministry. The question is, Was this suspension within the jurisdiction of the Classis? It appears to be given expressly in the 39th Article. The shortness of the notice was the subject of some forcible remarks, but I find no rule in the constitution of the Church ; and of course, it is within the discretion of the Classis. The suspension, then, appears to be the judgment of a competent court, within its jurisdiction, having authority over the party and the subject, with an appeal to a higher tribunal by any one aggrieved ; from which no appeal was taken, and to which, therefore, we are bound, sitting in another judicatory, to give respect and effect, without inquiring into the sufficiency of the grounds of the sentence." The Interposition of Civil Tribunals. 275 In the German Reformed Church v. The Commonwealth (3 Barr's Penn. Rep. 282), upon a mandamus to restore the relator to the standiug and rights of a minister of the Church, the Court say : " If the relator is injured by the decree of the Consistory, his remedy is by appeal to a higher ecclesiastical court. The decisions of an ecclesiastical court, like every other judicial decision, are final, as they are the best judges of what constitutes an offense against the Word of God, and the discipline of the Church. The civil courts? if they should be so unwise as to attempt to supervise their judgments on matters which come within their jurisdiction, would only involve themselves in uncertainty and doubt. Until a final adjudication by the Church judicatories, we think the relator is without remedy by mandamus." This case indicates, that had the appellate tribunal established the right of the relator, a civil court might have been re- sorted to for restitution to possession of temporal rights or property. In Harmon v. Desher (1 Spear's Eq. Rep., South Carolina, p. 80), the Synod of the Lutfieran Church had expelled Mr. Desher, a minister. The Court observe : "He stands there- fore, convicted of the offenses alleged against him, by the sentence of the spiritual body of which he was a voluntary member, and whose proceedings he had bound himself to abide by. It belongs not to a civil court to enter into or review the proceedings of a spiritual court. The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interfer- ence ; and on the other hand, it has secured religious lib- erty from the invasion of the civil authority. The judg- ments, therefore, of religious associations upon their own members, are not examinable here." In Wilson v. The Presbyterian Church of Johns' Island (2 Rich. Eq. Rep. 192, S. C), the distinction as to the prov- inces of the tribunals is thus drawn by the Chancellor : " I regret that suits relating to ecclesiastical affairs have be- come common in our courts, and that undefined and mis- taken views have been entertained in relation to the powers 276 Ecclesiastical Laiv in the State of Neiv York. of civil and ecclesiastical tribunals. I think it necessary to repeat, what other judges have thought it necessary to say, that the civil tribunals possess no authority whatever, to determine on ecclesiastical matters, on questions of heresy, or what is orthodox in matters of belief; and so the ecclesi- astical authority may not entertain any civil questions or in any manner affect a disposition of property by the decisions of their judicatories. The Court cannot interfere with the determination of the majority, in any manner, except to correct a misappropriation of trust property or funds." A very important case (Forbes v. Eden) was decided in the House of Lords, in 1867. It was an appeal from the Court of Sessions in Scotland, by the Rev. Mr. Forbes, minister of an episcopal congregation at Buutisland, the defendant being the Primus of the church. The question depended upon the obligation of the appellant to obey the canons adopted in 1862 - 63, He objected to the introduc- tion of portions of the English Book of Common Prayer, particularly the Burial of the Dead, Ministration of Baptism to Infants, and the Visitation ^ the Sick. The Lord Chancellor said : " That no civil court could take cognizance of the rules of a voluntary religious society made for the regulation of its own affairs, except so far as they related to collateral questions affecting the disposal of prop- erty. The appellant had not shown that he had sustained any injury for which a civil court could give redress." He proceeded to examine the ecclesiastical portion of the case, although he thought that in strictness the House was not called on to deal with it. He considered it was entirely within the competency of the Synod to enact the new can- ons, and they bound the appellant. The appeal was dis- missed. But while full effect is given to the sentence of an eccle- siastical tribunal, certain fundamental rules of law must have been observed ; and when civil rights as to property are involved, the secular tribunals will examine so far as to see that these have been obeyed. There must be an unquestionable jurisdiction in the tri- bunal over the subject-matter, and over the party. The Interposition of Civil Tribunals. 277 The nature of the iiceusation against him must liave been specified with reasonable precision, and he must have had reasonable opportunity to answer it. He must have had notice of the trial or proceeding, an opportunity to produce his own, and examine the opposing witnesses ; the right to the aid of counsel. And it is always open to impeachment as haviug been ob- tained by connivance or fraud. (Story's Conflict of Laws, chapter 15.) The case of Brinsley v. Davison, 4 Scammon's Keports, 539, is valuable on this head. When the record of a court of general jurisdiction shows either that the defendant was personally served with pro- cess, or personally appeared to the action, the defendant is estopped from showing a want of jurisdiction over him. Otherwise it is hwt prima facie evidence of jurisdiction. When the record shows that there was no service, per- sonal or virtual, and no appearance, it is a nullity. If service or appearance, other than personal is shown, it is presumptive evidence that by the laws of the State giving the judgment, jurisdiction was acquired. But this may be rebutted. In the case of Hatcher v. Rochelau (18 N. Y. Rep. 86), it was held that where the Court is of a limited jurisdiction, it is enoug'h if the record states that the jjrocess w as served, and the party appeared by attorney. In the case of a court of general jurisdiction, it was unnecessary to prove services or appearance, though the defendant was at liberty to con- trovert the facts. It was not competent to show that the judgment was erroneous, or damages awarded were too great. § 2. Pending Proceedings. In Walker v. Wainwright (16 Barbour's N. Y. Rep. 486), an application was made for a perpetual injunction to restrain the defendant, a bishoj) of the Protestant Episcopal Church, from carrying into eifect a sentence of an ecclesiastical tribunal against the plaintiff, a minister of that church. By the Court : " The only ground on which the Court can exercise any jurisdiction in this case is, that the threatened action of the 278 Ecclesiastical Laiu in the State of New York. defendant may affect the civil rights of the plaintiff, for the protection of which he has a proper recourse to the civil courts. The rights here invoked for that purpose are, his exemption from taxation, and the performance of certain civil duties. Conceding (though without ruling the point) that here is ground enough for the action of the Court, it becomes material to say, that the only cognizance which the Court will take of the case is, to inquire whether there is a want of jurisdiction in the defendant, to do the act which is soug'ht to be restrained. I cannot consent to review the exercise of any discretion on his part, or to inquire Avhether his judgment, or that of the subordinate ecclesiastical tri- bunal, can be justified by the facts of the case. I cannot draw to myself the duty of revising their action any further than to inquire whether, according to the law of the asso- ciation to which the parties belong, they had authority to act at all." In Hagar v. Whitehouse, Bishop of Illinois, and others (Superior Court of Chicago, 1863), Chief Justice Wilson de- livered the opinion. The case arose on a motion to dissolve an injunction which restrained the Bishop and the other defendants from proceeding in the investigation of charges preferred against the complainant, a presbyter of the Church. It sought also a commission to take evidence. Upon the statements of the bill there could be no doubt of the duty of the Bishop to proceed. Such duty was im- posed upon him by the canons. It would have been incum- bent upon him to do so without them. An investigation was necessary for the sake of the Church, as well of the complainant. His triers would be his peers, standing in the same church relation as himself, naturally anxious to save the Church and him from disgrace. No civil court will interfere with the legitimate exercise of the functions of Church judicatories. A church was a voluntary association, and its constitution, laws, and canons are stipulations between the parties, defining their duties and obligations. The civil rights of the members are still protected by the civil tribunals, except so far as they have The Interposition of Civil Tribunals. 279 been voluntarily submitted to the adjudication of the associ- ation of which they are members. The courts will not interfere to prevent the association from deciding' any matters which the parties have ag-reed to sub- mit to their decision, except where some principle of public l)olicy is contravened, or it is against good morals. . In no case has a civil court interfered to prevent an ecclesi- astical tribunal from trying an officer of a church for the purpose of discipline, according to the canons and rules of such church. Nor does the fact that the probable sentence of the ecclesiastical tribunal may incidentally aifect his civil rights, give a court of chancery jurisdiction. His rights under contract will still be vindicated in common-law courts. Whether in the contract of a rector, it is imjMed that lie shall do no act ivhich, hij the law of the Church, disqualifies him from officiating as rector, it is unnecessary to decide. The results of the opinion are thus stated : That civil courts will not interfere to prevent an investigation before an ecclesiastical tribunal of a voluntary religious association, when proceeding according to its constitution, canons, or rules, aud when the subject-matter and person are within its jurisdiction. That a court of chancery will not issue a commission to take depositions to be read before tribunals not established by law. § 3. Salaries and other Provisions for Support. The effect of an ecclesiastical sentence upon civil rights is frequently tested in actions for salaries or subscriptions. Thus in The Reformed Dutch Church v. Bradford, stated in full, ante, chap. 20, § 2, the validity and finality of a sen- tence of an ecclesiastical tribunal was recognized. The question upon which great differences of opinion arose among the judges was, whether, the sentence of suspension in the court below being appealed from, impaired the right to the salary for the period before its affirmation. It was strongly urged that the right continued until a valid final dismission, which could only be, and actually was fornnilly had, after the affirmance. The dismission by Classis peud- 280 Ecclesiastical Laio in the State of Neio York. ing the appeal from the suspensory decree, was held void by the Synod. The majority of the Court of Errors considered that the suspension was sufficient to defeat the claim. The peculiarity of this part of the discipline of the Dutch Church gives its strength to the argument of those members of the Court who sustained the claim for the salary in the intervening period. A formal official act of dismission is prescribed as a consequence of a conviction. But in other cases, the general doctrine of an appeal has great weight upon the question. The sentence is an absolute judicial decision, which may be reversed, but whose force and execu- tion is only so far interfered with as is necessary to make an appeal available. Indeed, in ecclesiastical courts in England, an inhibition is necessary to stop the Court below from pro- ceeding. In the cases in Massachusetts, we find the claim to salary rigorously supported, unless the case is controlled by some special contract, or the dismission has been effected by the sanction of a competent mutual council. {Ante, chap. 20 §1.) In Diffendorf v. The Reformed Calvinistic Church (20 Johns. Rep. 12), the action was upon a subscription for the support of the minister of the said church, " so long as the Rev. John I. WacJi is, and remains our regular preacher." WacJc had been deposed by Classis for immoral conduct ; but on appeal, the sentence was reversed. The Court held the final decision to be conclusive ; that the pastoral relation had not been dissolved, and sustained the action. I presume few lawyers would hesitate in saying that a sentence of a competent tribunal of the church with which the clergyman was connected, fairly, and on proper notice obtained, deposing or suspending him, annulled any civil contract as to salary or property, unless something of express provision controlled the point. § 4. Dedication of Prajjcrty in trust for Religious Purposes. The case of the Rev. Dr. Bullions in Vermont, and our own State, is a leading case. The Interposition of Civil Tribunals. 281 A will contained the following- provision : " I will and de- vise the sum of one hundred and fifty dollars, as a donation to the Associate Cong-regation of Rygate, to be placed under the direction of the trustees of said society, and the interest thereof to be annually paid to their minister forever." (Smith V. Nelson, 18 Vermont Rep. 511.) One branch of the proceedings related to the Rev. Mr. Pringle. This requires but little attention. The point was, that the Synod which had dissolved a Presbytery, had no jurisdiction to do so at the time. But if it had that power, it could not delegate it to others (even part of its own body), and authorize them to depose the ministers. Now the existence and competence of jurisdiction is a prerequisite upon which a civil tribunal insists, before it will regard a sentence as of any force. The case as to the Rev. Dr. Bullions presented the diffi- culties. The Presbytery to which he was subject, pronounced a sentence of deposition on the grounds of slander and con- tempt of court, and contumacy. An appeal was taken to the Synod, but not duly prosecuted. However, the whole case was, by consent of the parties, brought before the Sy- nod, where the judgment was confirmed. The Supreme Court of Vermont entered into an examina- tion of the proceedings of the ecclesiastical tribunals, and concluded that the deposition was illegal. The principle is thus laid down. The proceedings of the Synod of the Asso- ciate Church as a court of last resort, are not to be held con- clusive when they come in question directly or collaterally in courts of law; but their regularity and effect may be exauiined and determined, upon the same principles which subject the proceedings of inferior courts or voluntary asso- ciations, to inquiry and adjudication." I need advert to but one, and the strongest objection the Supreme Court acted upon. Several members of the Presbytery which tried him had been of those slandered by him. Dr. Bullions interposed a declinature to the jurisdiction 282 Ecclesiastical Law in the State of Neiv York. of the Presbytery on this gToiiud. The Synod overruled it. The Supreme Court of Vermont held the last decision incon- clusive, and the objection good. Vice-Chaneellor Willard, and I consider the whole Bench of the Fourth Circuit of our State, held the decision conclusive, recognizing- the force of the objection, but holding that by his appeal and the decis- ion against him, he was barred. (See, particularly, Justice Hand's Opinion, 9 Barbour's Rep. 134.) One point much less open to doubt, was also decided in Smith V. Nelson, namely : That there was nothing in the terms of the bequest which indicated that the testator in- tended to make the bequest depend upon the continuance of the society in the particular connection then existing, or with any particular tenets. One other point is to be noticed. Nothing can be added by implication to the express terms of the contract between a minister and society. But if a minister ceases to be able to perform his duties by reason of immorality, or other suf- ficient reasons of his own creating, it may furnish a ground for the parties to dissolve the relation, or for one of them to consider it as forfeited by the other. To make this consistent with the other points determined in Vermont, we must understand, that the reasons for such forfeiture must be tested upon facts and law, by trial in the civil courts. • This case, Robinson v. Bullions, came before Vice-Chan- cellor Willard in 1850.1 He decided — (1.) That the property was devoted to the support of preaching the gospel and administering the ordinances in the congregation, according to the fiiith and discipline of the Associate Church of North America ; and no minister under sentence of deposition or excommunication, could per- form such services in the Associate Church of Cambrid NOTICE OP SUBSEQUENT ELECTIONS.^ Notice is hereby given, that an election for two church-wardens and vestrymen of this church, will be held at this place on the day of , at o'clock,^ the poll to remain open one hour, or longer if required. No. 4. NOTICE FOR A VACANCY. The difference will be in stating that the election is to fill a vacancy of a warden or vestryman. It must be given in the time of Divine service, and ten days before the day fixed for the special election. No. 5. ENTRY OF ELECTION ON BOOK OF MINUTES. An election was held on the day of , immediately after morning service, for the purpose of choosing wardens and 1 To be read for two Sundays next previous to the election day. 2 The hour must be specified in the notice, and the election is to be immediately after morning service. It is best to fix the hour, so as to admit the service beingf completed, and as nearly after as practicable. , 326 Appendix. vestrymen for the ensuing year (or for filling a vacancy in the office of church-warden or vestryman). The presided and received the votes, and signs his name to this minute of proceed- ings, and we electors present have signed and certified the same. [Signed by the presiding oflScer and the electors called by him to sign.] No. 6. CERTIFICATE OF ADOPTION OF ACT OF 1868. This is to certify that at a regular meeting of the vestry of Church, a church incorporated under the first section of the Act of the legislature passed the 5th of April, 1813, and its amendments, a resolution of which the following is a copy, was adopted by the vestry, and entered upon the minutes. Resolved, that this church doth hereby determine to adopt the provisions of the ninth, tenth, eleventh, twelfth, thirteenth, four- teenth, fifteenth, sixteenth, and seventeenth sections of the Act of the legislature passed the 9th day of May, 1868, entitled " An Act to amend the Acts for the Incorporation of Religious Societies, so far as the same relate to churches in connection with the Protestant Episcopal Church." [To be signed by the presiding officer and two of the wardens or vestrymen, and acknowledged (or proven by a witness) before a judge of the Supreme Court, or of the Court of Common Pleas of the county, and to be recorded in the clerk's office of the county where the church is situated, but in the register's office if situated in the city of New York, or in Kings or Westchester county. See Appendix C] No. 7. CERTIFICATE OF INCORPORATION UNDER THE THIRD SECTION OF ACT OF 1813, ETC. We, whose names are hereto subscribed, two of the elders (or members) of the church or congregation known as The , in which divine worship is celebrated according to the rites and discipline of the Presbyterian Church, do certify that on Appendix. 327 the day of , the male persons of full age who have statedly worshiped in such church or congregation, and not already incorporated, met at , the place where they statedly attend for divine worship, and did then and there elect by plurality of voices,^ as trustees to take the charge of the estate and property belonging to such church or congregation, and to transact all aftairs relative to the temporalities thereof. And further, that the name or title by which the said trustees and their successors should be known was, The Witness our hands and seals this day of } No. 8. CiiRTIFICATE OF INCORPORATION OF DUTCH REFORMED CHURCH. "We the undersigned, the minister, elders and deacons (or if no minister), elders and deacons of the Reformed Protestant Dutch Church, known as , worshiping in the of , county of , State of New York, and trustees of such church, do hereby certify that on the day of , we assem- bled at our place of worship in said {town), for the purpose of forming ourselves, and our successors, into a body corporate, under the act or acts of this State, in such case provided. And we did thereupon fix upon the name or title of the by which we and our successors, trustees, shall be known and designated. In witness whereof, etc. [To be acknowledged or proven before an officer authorized to take acknowledgments, and to be recorded in the register's office of New York, or Kings, or Westchester county. And in the clerk's office if in any other county. See Appendix C] No. 9. CERTIFICATE OF ROMAN CATHOLIC CHURCH. We the undersigned, to wit, A. B. the Roman Catholic Arch- bishop (or Bishop) of the diocese of , C. D. Vicar-General 1 Not less than three, nor more than nine. 328 Appendix. of such diocese, and E. F. pastor of the church of in such diocese ; and laymen, members of the said church, duly selected and appointed, hereby certify, that the name or title of the , is that by which they and their successors shall be known and distinguished as a body corporate, by virtue of the act of the legislature entitled " An Act supplementary to an Act entitled ' An Act to provide for the Incorporation of Relig- ious Societies, passed April 5, 1813,' passed March 25, 1863." Witness our hands, this day of Witness : [Acknowledged or proven in the same manner as deeds of real estate and filed in the office of the county clerk, and a copy in the office of the Secretary of State. See Appendix C] No. 10. CERTIFICATE OF INCORPORATION OF FREE CHURCHES. We whose names are hereto subscribed, male persons of full age, citizens of the United States, and a majority of whom are res- idents of the State of New York, do hereby certify that we have associated ourselves together for the purpose of founding and con- tinuing a free church in the city of , State of New York ; that the name or title by which such society shall be known in law was determined to be the Free Church of the , in the of . That the purpose of its organization is the ministering of the Word and Sacraments according to the doctrine and worship and discipline of the Protestant Episcopal Church in the United States of America. That the following are the names of seven trustees who are to manage the affairs of the said church and body corporate, Jive of whom are not ministers of the Gospel or priests of any denomination, namely : [Signed in duplicate by all, and to be acknowledged, not proved, and to be approved by a judge of the Supreme Court of the dis- trict, or of the Superior Court in New York, and filed in the office of the county clerk, and a duplicate in the office of the Secretary of State. No recording is directed.] Appendix. 329 No. 11. PETITION FOK ORDER TO CHANGE NAME. Supreme Court. In the matter of the application of fur a change of name. The petition of the Street Baptist Church, respectfully showeth : — That your petitioners are trustees of the above named church, a religious body incorporated under the act of the legislature of this State, in such case provided, and became so incorporated by the name and title above stated. That it became desirable to change the location of its place of public worship, and an order has been obtained for selling the same ; that by reason thereof, the said name has become incongruous. Your petitioners therefore pray that an order may be made, al- lowing the above corporation to change such, its corporate name, and to assume the name of the [Affidavit of the truth of the facts to be made by one of the trustees.] ORDER. (See form No. 12.) {Another form.) Supreme Court. In the matter of the application of the rector, church-wardens, and vestrymen of the Church of the Intercessor, for a change of name. The petition of the rector, church-wardens and vestrymen of the Church of the Intercessor, in the city of New York, respectfully showeth : — That your petitioners have become incorporated under the laws of this State, as a church in communion with the Protestant Epis- copal Church in the United States of America, and as such corpo- ration located in the city of New York. That by reason of the similarity of their corporate name to that of another corporation in the said city and county, to wit, the Church of the Intercession, the corporate name of your petitioners has become incongruous and inconvenient, and that the location of such corporation will be more correctly and effectually designated by a change of name. 330 Apjpendix. Your petitioners pray that their said corporate name may be changed to " The Rector, Church-wardens, and Vestrymen of St. Alban's Church in the city of New York." Signed by the rector and attested by the clerk. [The petition was sworn to by the rector, and there was a certifi- cate attached by the clerk of the vestry, of a resolution being adopted by such vestry, authorizing an application for such change.] No. 12. ORDER FOR CHANGE OF NAME. Supreme Court. In the matter of the application of, etc. At a Special Term of the Supreme Court, etc., held 14th Febru- ary, 1867, — Present, , etc. It appearing from the pe- tition of " The Rector," etc., a corporation incorporated under the laws of this State, hereto annexed, that the name by which such church and corporation is now known and designated, has become and is incongruous and inconvenient, and that by a change of its name the character and location of the same will be more correctly and effectually designated : It is ordered that on compliance with the provisions of the Revised Statutes, and of chapter 323 of the laws of 1853, and of chapter 464 of the laws of 1847, the said cor- poration be authorized to assume the name of " The Rector, Church- wardens, and Vestrymen of St. Albans' Church in the city of New York," and from and after the 20th day of March, 1867, be known by such new and assumed name and no other. [This order is to be published within ten days after it is granted, in one of the public newspapers printed in the county in which the church is located. And within twenty days the petition, affidavit or affidavits, order and affidavit of publication, must be filed and re- corded in the clerk's office of the county in which the church is located. Act of December 14, 1847, §§ 4, 5. See Appendix C] " When the requirements of this act shall be complied vdih, the applicant shall from and after the day specified for that purpose in such order, be known by the name which, by such order, he shall be authorized to assume, and by no other." (Act of December 14, 1847, § G.) Appendix. 331 No. 13. PETITION FOB THE SALE OF REAL ESTATE.^ In the matter of, etc. To the Justices of the Court : The petition of the undersigned respectfully showeth : — That they are trustees of the , a religious cor- poration incorporated under the laws of the State of New York. That they own two parcels of real estate, one the lot of ground on which their place of worship stands, and another, a lot, a parcel in the town of , bounded and described as follows : All, etc. That the said incorporation have incurred a debt of hundred dollars in necessary repairs made to their church. That they have no personal property to pay the same. That such lot of ground is worth about the sum of $ . That at a meeting of said soci- ety, held at their said house of worship, on the day of , at which there were present and voting, a majority of the legal voters of the said religious corporation, a resolution was passed in- structing the said trustees to make this application, and effect a sale of such parcel of land ; and that at a meeting of your peti- tioners, as a board of trustees, a resolution was passed to make this application accordingly. [The petition should be verified by the president of the board, or clerk. The conveyance, under the corporate seal, should, I think, be recorded in the register's office in New York, "Westchester, or Kings county ; and in the county clerk's office elsewhere. See Appendix C] No. 14. PETITION FOR LEAVE TO CONVEY TO TRUSTEES OF A FREE CHURCH. To the Justices of the Supreme Court : The petition of the rector, church-wardens, and vestrymen of the Church of the , in the city of New York, respect- fully showeth : — That on or about the 3d day of November, 1853, in pursuance i From Mr. Tyler's book, with slight changes. A good form. 332 Appendix. of an act of the legislature of the State of New York, entitled " An Act to provide for the Incorporation of Religious Societies, passed April 5, 1813," they became a body corporate in communion with the Protestant Episcopal Church, in the United States of America ; that on or about the day of , 1853, they pur- chased four lots of ground situate, etc. That subsequently, they caused to be erected a church upon such lots, which has since been occupied and used for public worship, according to the rites and ceremonies of such Protestant Episcopal Church, and that the seats in such church have always been free to all worshipers. That the value of such church and property is about the sum of twenty thousand dollars. Your petitioners further show that on or about the 28th of February, 1856, the said corporation was indebted in the sura of twelve thousand dollars, of which the sum of ten thousand five hundred dollars was secured by mortgages upon such property. That measures were taken to raise money by voluntary contribu- tions, to enable your petitioners to discharge such indebtedness, with the engacrement and understandinor that, if a sufficient sum for such purpose could be procured, your petitioners would convey such property to trustees, to be incorporated under the act of the legis- lature entitled " An Act for the Incorporation of Societies to estab- lish Free Churches, passed April 13, 1854." That upon such stipulation and engagement, sufficient funds have been contributed to enable your petitioners to pay off the whole of such indebtedness. That on or about the 8th day of March, 1855, the Rev. J. J. E. and L. M. H, etc. (seven in all), were duly incorporated trustees, under the provisions of the said act for the establishment of free churches, under the title of " The Trustees of the Church of the , in the city of New York." And for the purpose of taking the title to the said property of your petitioners, to be held by them in trust, under such last mentioned act. Your petitioners further show, that for the purpose of better se- curing and perpetuating their said church and property as a free church, and for the purpose of carrying into effect the condition and engagement before mentioned, they are desirous of conveying the said church property to the last mentioned trustees, on the con- dition that the same shall be used and occupied for public worship as a free church, in comnnmion with the Protestant Episcopal Church in the United States of America. Appendix. o o o Your petitioners therefore pray that an order may be granted allowing them to make such conveyance for the purpose, aforesaid. [This was signed by the rector, wardens, and vestrymen, and sworn to by the rector.] ORDEE UPON SAME. In the matter of the application of the rector, etc., for leave to convey property to the trustees of the Church of, etc. At, etc., 20th June, 1857, — Present, J. J. R., one of the judges, etc. On reading and filing the petition of the rector, etc., duly verified, and on motion of, etc., ordered that the said rector, etc., be authorized and empowered to convey these four lots of land situ- ate and lying in, etc. (description), together with the church erected thereon, to the Rev. E. J. G., etc. (the trustees), as trustees under an act of the legislature of the State of New York, entitled " An Act for the Incorporation of Societies to establish Free Churches," passed August 13, 1854, to be held by them and their successors in trust, as a free church in communion with the Protestant Episcopal Church, in the United States of America. INDEX. < A. Page ASSISTANT MINISTER 89 Selection not to be made without consent of rector 90 Vestry to decide as to necessity for period of employ- ment and salary of 90 ASSOCIATE REFORMED CHURCH . . . .152 B. BRICK CHURCH, Sale of 134 Vaults of 240 BURYING-GROUNDS. Act of April 11, 1842 219 Misapplication of land 219 When may be mortgaged 220 Removal of bodies ..*.•• 220 Associations ....••• 221, 230 Trustees of 220 Certificate 222 Land may be taken for 223, 230 Supervisors of Westchester, King's, and Queen's Counties to make regulations concerning burials in 230 Act of May 7, 1847, as to purchase of lands for, by trustees of villages 230 Private cemeteries .....•• 233 Birds in cemeteries 234 Removal of bodies 235 Church-yards 236 Vaults 238 C. CEMETERIES 219 Private 233 336 Index. CERTIFICATE 50, 163, 190, 209, 312 Forms of 326 (See Protestant Episcopal Church, Incorporations, Free Churches, Burting-grounds, Appendix C.) CERTIFICATES OF INCORPORATION, Recorded in wrong county, (Appendix) . . 317 CHAPELS, Of ease 34 Parochial . ... 35 Act of 1860 as to erection of . . 206 Act of 1867 207 CHARTERS, To churches of the Church of England 14-39 Particular charters .... 14 Trinity Church .... . 14 (See Appendix, 295.) Protected by Constitution 15 Alteration of name .... 15 St. George's, Hempstead 15-20 Titles in charters .... . 21 Power to hold lands .... 21 If they could take by devise . 21 Acts of warden and vestrymen valid in absence of rector 22 Right of minister to preside, etc. . 22 St. Peter's, Westchester 23 Trinity Church, New Rochelle . 23, 24 St. George's, Flushing .... . 23, 24 St. James', Newtown .... 23, 24 Elections and qualifications of voters 24 Grace Church, Jamaica . 26 Inhabitant, what . 26-29 Tow^ns voter to be inhabitant of . 29 In communion, etc., meaning of 29 Chapels of ease, worshipers in . . 34 Parochial chapels, worshipers in . 35 Notices of election .... . 37 Time of polling 38 Class from which officers to be chosen . 38 Tenure of office 38 Quorum and majority . 38 Index. 337 CHARTERS.— Confwiterf. Vacancy 39 Call and settlement of ministers of chartered churches 39 Charters to the Dutch Church 102 CHURCHES, Associate Reformed 152 French 138 Lutheran 139 Methodist Episcopal 155 Presbyterian 130 Protestant Episcopal Church 44 Quakers 157 Reformed Dutch 98 Reformed Presbyterian 149 Roman Catholic 141 Shakers 159 True Reformed Dutch 128 Associate 206 Incorporation of^ under section three .... 161 CHURCHES, FREE, Organization of ...... • 209 Certificate . 209 Vacancies in Board of Trustees .... 210 Seats or pews to be free 210 Sale of real estate 210 Corporate powers 210 To hold real estate 211 By-laws 211 Elections 211 Name . . . 212 Liability for debts 213 Canon of Episcopal Church as to . 214 Appointment of delegates to Convention 215 Change to renting pews 216 CHURCH OF ENGLAND, ;' In the Colonies 1-13 In South Carolina, Virginia, and Maryland, establish- ment complete . 1 Laws of Duke of York, of 1864 2 Eight overseers to be chosen 2 Two church-wardens chosen 2 338 Index. CHURCH OF ENGLAND. — Continued. Duties of minister ...... 3 Instructions to governors of the colony . . . 4, 5 Acts of the Colonial Assembly .... 5-13 Church at Jamaica, Queen's County .... 8 Statutes of uniformity and toleration in the colonies 13 Churches in colonies organized under special charters 14 Particular charters 14 Trinity Church 14 Act of 1814 concerning 15 (See Appendix, 295.) CHURCH- WARDENS, Their position under English law . . . .90 CHURCH-WARDENS AND VESTRYMEN. (See pp. 49 to 81 ; also Protestant Episcopal Church, and Appendix A, p. 311.) CIVIL TRIBUNALS, Interposition of 274 In sentences of ecclesiastical courts . . . 274 In pending proceedings 277 In salaries ........ 279 In dedication of property in trust for religious pur- poses ......... 280 In elections 291 CLERK. (See Protestant Episcopal Church Incorpo- rations, Etc.) COFFINS 241 CONGREGATION, Rights of, as to occupation of church building . 86 « Belonging to " .46 CONSLSTORY • • 119 CONSTITUTION OF 1777 40 30th article as to free religious worship ... 40 31st article. No minister or priest capable of holding military or civil office ...... 40 36th article. No grants of land to be affected or charters annulled 41 CONSTITUTION OF 1822 43 CONVENTION, Delegates to 215 COURTS. (See Civil Tribunals.) Index. 339 D. DELEGATES TO CONVENTION DEVISES TO INCORPORATIONS . DISMISSAL OF MINISTERS In Massachusetts ..... In Reformed Dutch Church In Presbyterian Church In Protestant Episcopal Church DISTURBANCE OF RELIGIOUS WORSHIP DUTCH CHURCH, THE REFORMED, Historical account of . Charters of Charter of 1696 to church in New Will of Harpending . Act of 1753 . Constitution of 1777 Act of 1783 . Act of March, 1784 . General Act of 1784 . Act of March, 1788 . Act of February, 1792 . Act of February 1, 1798 . Act of February 15, 1800 Act of April 9, 1819 Act of April 7, 1819, General Synod Act of April, 1813 . Incorporation of . Election of trustees in Act of April, 1835 Constitution of . Consistory of .... General remarks ... Dismissal of ministers in DUTCH CHURCH, The True Reformed . . . York E. ELECTIONS, In Protestant Episcopal Church, (See Protestant Episcopal Church.) . 215 178-185 . 260 261 . 262 264 . 265 255 98 102 102 107 108 109 109 110 111 111 112 112 113 114 114 115 115 115 117 119 119 120 262 128 340 Index. ELECTIONS. — Continued. In Dutch Church 115 In incorjjorations under section three . . .161 In free churches . 209 Interjjosition of civil tribunals as to .... 291 F. FORMS. Notice of meeting to incorporate a Protestant Episcopal Church ........ 323 Certificate ........ 324 Notice of subsequent election .... 325 Notice for a vacancy . . . . . . .325 Entry of election on book of minutes . . . 325 Certificate of adoption of Act of 1868 . . . 326 Certificate of incorporation under third section of Act of 1813 326 Certificate of incorporation of Dutch Reformed Church 327 Certificate of Roman Catholic Church . . . 327 Certificate of incorporation of free churches . 328 Petition for order to change name .... 329 Order for change of name ..... 330 Petition for sale of real estate . . . . .331 Petition for leave to convey to trustees of a free church ........ 331 Order upon same ....... 333 FREE CHURCHES. (See Churches) ... 209 FRENCH CHURCH 138 H. HOSPITALS, Erection of 207 L INCORPORATIONS, General provisions applicable to, under Act of 1813, and amendments . . . . . . .173 Common seal ....... 173 Power to take the property ..... 173 Trustees to sue and be sued 175 Authority to purchase and hold lands . . .176 Index. 341 176 178-185 184 . 185 186 . 187 188 . 189 INCORPORATIONS.— Continued. Acquisition by deed Devises to . Act of April, 1860, as to devises and bequests Repairing and altering buildings Powers of trustees ..... By-laws ....... Appointment of clerk ..... Reduction of trustees .... Duty of treasurer to make account and inventory 189-192 Corporation to commence from time of recording certificate 190,318 Form of certificate 326 Dissolution of 191-195 Omission to elect trustees, etc 192 Change of dav of elections 195 Change of name 196 Sale of real estate 198-204 ]Mortgages by 204 (See Appendix A, 311.) Under section three 161 First election of trustees • 161 Notice of election ....... 161 Persons entitled to vote . . . . . 162 Certificate 163 Form of 326 Meetings of trustees 165 Presiding trustee 165 Trustees must meet as a board to bind society . .165 Tenure of office, classes, vacancies . . . 165 Voters at subsequent elections 166 Clerk to keep reports of attendants . . . 167 "Stated attendance on Divine worship " . . .167 Salary of minister 167 Increase or reduction of trustees . . . .169 Trustees holding over . . . . . . 169 Con £f relations have no denominational character , 170 Powers of trustees 171, 172 INHABITANTS, What constitutes 26-29 INTERPOSITION OF CIVIL TRIBUNALS . • 274 342 Index. J. JESUITS, Act against ........ 141 L. LUTHERAN CHURCH 139 M. MEETINGS OF VESTRY, TRUSTEES, Etc. (See Protestant Episcopal Church, Incorporations, Etc.) METHODIST EPISCOPAL CHURCH . . . .154 MINISTERS, Salary of, in Pro. Epis. Church .... 83 Salary of, under section three 167 Resignation and dismissal of .... 260 MISSION HOUSES 207 MUSIC, Under control of rector 88 NAME, CHANGE OF CORPORATE . . . .196 Opinion as to recording papers on . . . . 319 O. ORGANIZATION OF CHURCHES. Protestant Episcopal . . . (Appendix, 311) 47 Under section three . . . . . .161 P. PEWS, Rights in 243-254 PRESBYTERIAN CHURCH, Under the Colonial Government, .... 130 The Brick Church 134 Act of 1867 respecting ...... 136 Dismissal of ministers in 264 PRESIDING OFFICER. (See Protestant Episcopal Church, Incorporations.) PRIESTS, Acts against Popish . . . . . . 141 PROPERTY OF CHURCH, Title to in vestry 83 Index. 343 PROPERTY OF CHURCH.— Continued. Conveyances and bequests for support of rector No disposition of to be made in absence of rector . PROTESTANT EPISCOPAL CHURCH.^ Act of 1784 unsuitable to system of ... Act of 1795, preamble, provisions similar to act of 1813 Section 4 as to qualification of voters . Act of 1813 First election. ....... Belonging to a congregation ..... 83 314 (Appendix, 311) Organization Notice of object of meeting How given ..... Presiding office!- .... Certificate ..... Vestry trustees and corporate body Subsequent elections Qualification of voters at . . No proxies at When held Notice not essential .... Duties of presiding officer at Tenure of office of church-wardens and vestrymen ..... Calling rector ..... Notice of meetings .... Rector to be present at meetings . " Vacancies ......" ; Equality of votes at meetings Rector has no power to adjourn meetings, etc. . Presiding officer at meetings to have casting vote Rights in property ..... Title to property in vestry .... Rights of rector in ..... Use of sacred buildings Music ........ Assistant minister ...... Church-wardens ...... Dismissal of ministers . ' . 44 44 45 45 45 46 47 « 48 « 48 « 48 312 50-58 313 314 !13 58 59 64 64 65 65 66 68 70 70 70 71 72 . 72 79-82 83 . 83 85 . 87 88 . 89 70 , 265 1 Attention is particularly called to the Act of 1868, in Appendix A. 344 Index. PROTESTANT EPISCOPAL CHURCH. — Continued. Adoption of Act of 1868 by organized churches . 315 (See Act of 1868, Appendix 311, and notes to 316.) Q. QUAKERS 157 R. RECORDING, Opinion as to proper office for certificates and other church documents, (Appendix) . • . .319 RECTOR, To give notice of and preside at elections, and receive votes, etc. . . (Appendix. 311-313) 65 Has no casting vote at . . " 418 To cfive notices of meetings . " 314 70 To preside at meetings • . " . . 314 Has no power to adjourn meetings .... 75 Or to withdraw from them to prevent business . 77 Refusing to attend . . . (Appendix, 314) 78 To have casting vote at . . " " 79 Riglits in property ....... 83 Salary ......... 83 Control of church buildinor ..... 85 Control of music ....... 88 Assistant minister not to be chosen without assent of . 90 No disposition of property to be made in absence of 314 (See Act of 1868, p. 311 ; and Notes ox, p. 316.) REFORMED PRESBYTERIAN CHURCH . . . 149 REGISTER, Office of, place for recording certificate of incorporation in County of New York 55 (See Appendix, 317.) ROMAN CATHOLIC CHURCH, Under the Colonial Government . . . .141 St. Peter's Church 142 St. Patrick's Church 144 Act of 1855 as to conveyances, etc., for religious purposes . . • 145 Provisions of Act of 1863 as to incorporation of churches . 146 Index. 345 S. SALARY 83,167,279 SCHOOL-HOUSES, Erection, etc., of 206, 207 SENTENCES OF ECCLESIASTICAL COURTS . 274 SHAKERS 159 STATUTES, Of Elizabeth 178 Of Equality ......... 41 Of Mortmain 178 Of Uniformity and Toleration in the Colonies . 13 T. TREASURER OF INCORPORATIONS ... 189 TRINITY CHURCH 14 (See Appendix, 295.) TRUSTEES, In incorporations under section three . . .161 Increase or reduction of . . . • ■ 1 69 Holding over 169 Powers of 171,172 Generally under Act of 1813 173 Powers of, under Act of 1813 .... 186 Of free churches 209 Of burying-grounds ...... 222 V. VAULTS 238 VESTRY, (See Protestant Episcopal Church and Appendix, p. 311.) VOTERS, Qualifications of, at first elections in Protestant Episcopal Church 45, 311 Subsequent elections in Protestant Episcopal Church 59, 313 Qualifications of, in incorporations under section three at first elections . . • • • .162 Subsequent elections . . . • • • 166 346 Index. W. WILL, Law of 1860 prohibiting devise or bequest of more than half testator's estate in certain cases 147, 184, 212 Devises to incorporations 178 THE END. DIVERSITY OF CAyF^F^^il^;^ AT LOS ANOr^tiUig UBMm UNIVERSITY OF CALIFORNIA AT LOS ANGELES THE UNIVERSITY LIBRARY This book is DUE on the last date stamped below HAY i 1 !5l96* IB I4» m # 121970 1970 JUNl LD-m ^^^25i9g4 Form Ij-9 20m.-l,'42<851tt) Lie SOUTHERN REGIONAL LIBRARY FACILITY AA 000 628 797 3 3 1158 00936 2905 ■'•:t'_^^^-.'.mj ^'-i-vW^i