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JUDGE SMITH'S OPINION.
On the 15th day of December, 1827, a motion was made in this court for a rule to show cause, why the certificate of the Judges of the Supreme Court, on the application of Levi Garrett, John M'Leod, and others, to a charter; as the First Baptist Church of Philadel- phia, should not be vacated. The case has been twice argued, and the last argument has taken a very wide range indeed: and although I'most readily acknowledge the ability with which the case has been argued, on the part of the applicants, as well as'on the part of those who oppose the granting of the charter, I must be per- mitted to say, that in my opinion it was not necessary to travel over so much ground in order to arrive at a cor- rect decision of the case, for the real merits of the ques- tion lie within a very narrow compass. It is truly, as the learned counsel for the applicants stated, a question of law; which admits of an easy solution, if we do not lose sight of the real question. True, it is an important one; and as such, I have approached and considered it, with all the attention in my power, and at length formed an opinion to the best of my understanding.
The reasons for my opinion, satisfactory at least to my mind, and which I trust I can hereafter, if necessary, repeat, repose upon, and be responsible for, I will now proceed to state .
The certificate was granted, in pursuance of the di- rections of an act of the General Assembly, passed on the 6th day of April, 1791, entitled "an act to confer on certain associations of the citizens of this common- wealth, the powers and immunities of corporations, or bodies politic in law." By this act it is made lawful for any number of persons, citizens of this commonwealth, and who are associated, or mean to associate, for any religious purpose, and who may be desirous of enjoying the powers and immunities of a body politic in law, to prepare an instrument in writing, in which the objects, articles, conditions and name, style or title of the associa- tion, must be specified, and exhibit the same to the attorney general, who is to peruse and examine it; and if, on examination, the objects, articles and conditions, VOL. III. 29
are in his opinion lawful, it is to be transmitted to the Supreme Court, with his certificate thereon endorsed. If the Supreme Court concur with the Attorney Gene- ral as to the lawfulness of the objects, articles and con- ditions, the instrument, with a certificate of the court thereon endorsed, testifying their opinion, is directed to be transmitted to the governor; who then only is to transmit the same to the roll's office, requiring it to be there enrolled; and upon the enrollment thereof, the persons associated according to the objects, articles and conditions set forth in the instrument, become a body politic in law and fact, to have continuance by the name, style and title in such instrument provided and declared.
It is admitted that the association in question is for a religious purpose. The preliminary steps necessary to obtain a charter have been taken, for an instrument in writing, specifying the objects, articles and conditions, and name, style or title of the association, was exhibit- ed to the Attorney General, who has duly certified that in his opinion the objects, articles and conditions therein set forth and contained, are lawful. In this opinion the Supreme Court have concurred, and have endorsed their certificate on the instrument; but the enrollment required by the act has not been made.
It appears that for more than eighty-five years, a re- ligious congregation has existed in the city of Philadel- phia, called at first the Baptist Church of Philadelphia, and then, in the year 1802, about sixty-six years after the establishment of this church, it was called the First Baptist Church. The association whose charter is now before us, were formerly members of the First Baptist Church, from which they have separated. They now worship at the Academy in Fourth street, and call them- selves also the First Baptist Church of Philadel- phia. It is certainly not surprising that in so flourishing a country, and with so rapidly increasing a population, members of one church should separate and form dis- tinct congregations. This has frequently happened in the counties of this state, as well as this city; the right to separate is not denied to the applicants in the present case, and is inleed indisputable.
The question then is, whether, under these circum- stances, the certificate of this court, testifying their opinion of the lawfulness of the objects, articles and conditions, set forth in this instrument, should be revok- ed? Before I proceed further in the consideration of this subject, let me remark, that in regard to the busi- ness of charters, the Act of Assembly requires that the Supreme Court should give their opinion, whether the objects, articles and conditions set forth in the instru- ment of association be lawful, and that is all. And that we are confined to this, is, I think, evident from what fell from the late chief justice, in 6th Sergeant and Rawle, 505, not particularly cited in the argument. There, in the case of St. Mary's church, the justly ve- nerated chief justice remarked that, " in this business of charters, the court acts under the grant of an extraor- dinary power, of a special nature, and confined to the cases described in the act of assembly." I admit that the authority vested in the Supreme Court by the above mentioned act is important; on in the language of the able and ingenious counsel who concluded the argument, "a vast power;" but it cannot be said to be a dangerous authority, restricted as it is, to associations for literary, charitable, and religious purposes.
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The reason for establishing the mode of creating cor- porations prescribed in this act, are stated in the pream- ble; and it cannot be doubted that the benefits antici- pated by the legislature, have been realized in the ope- ration of the law; but if it were otherwise, the power" to remedy the evil is not lodged in this court. The alarm, however, which has been often expressed by some of our wisest and best men, in regard to the mul- tiplication of corporations, and charter privileges, can- Dot extend to the increase of such associations as are contemplated in the act of 1791, the objects of which are essentially beneficial.
The members of the original or old Baptist church, in whose behalf this rule has been granted, object to the charter on account of the small number of those who have associated together. But this objection cannot be sustained. The act of Assembly does not require a thousand, a hundred, or fifty; or any particular number. The privilege is extended by the act to any number; and the answer to this objection is, that a number of persons, according to the act, demand that the Supreme Court should comply with the requisitions of this law.
A more plausible objection is this: The old church, denies the right of the applicants to the name, style or title of the "First Baptist Church of Philadelphia." -- "Upon consideration it does, however, appear to me, that there is more of feeling than of sound reason in this objection. What real inconvenience can the original church sustain? Surely it cannot be pretended that the history of the congregation can be blotted out, or coll- founded by this assumption of a name on the part of the association. Can the original church suffer any detri- ment in its rights of whatever description by reason of this assumption? unquestionably not. Can it effect the identity of the original congregation, or endanger their property? The third section of the 7th article of our excellent constitution protects them effectually when it declares that the rights, privileges, immunities, and es- tates of religious societies shall remain: and hence I conclude, these to them invaluable rights, as well as their estates, cannot be taken away by any name in a charter, such as the one before us. Besides it is not found in the transactions of society, that identity of names produces any confusion of right, nor can it be se- riously apprehended in this case, that the association would in consequence of the corporate name of "The first Baptist Church of Philadelphia" lay claim to any thing which belongs to the old congregation. But if they should, we cannot now decide on it for the act of assembly does not contemplate, that this court should in this way, decide claims or contested facts. We have no authority to do so in this stage of the business; they must be tried and decided like all other facts by Jury. Let me here observe that their friend and brother did really place this case in a strong and striking view be- fore the opponents of this charter-What said he to them, on the 28th of March, 1827, is the point in dispute? Is it the name? "Let them have it, and do you take it too, or take another. I would not care a fraction about it. Do they want your funds? This is a legal question, and may be brought before a legal tribunal by yourselves or them, as the case may be, or you may let them keep it if they have got it, and do without it .. Neither the name, nor the money have any thing to do with the sal- vation of your souls or the souls of your neighbors. In the mean time, while the controversy is going on, Satan will rejoice, religion will decline, and souls will be lost. Were it in my power, I would as soon as possible stay all proceedings, and quietly go on to save as many sin- ners as I could, and make my people as good as possi- ble. If you do this, God will help you with or without the money or the name. If he do not, neither the one or the other, will do you any good." As a christian, I must say, I could have wished the advice here given, by a good and pious minister of the gospel, had been follow- ed; if it had, we would not have been engageda whole week, in hearing a controversy so painful to many, and
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after all, perhaps satisfactory to very few. This epistle of their Rev. Brother Wayland, let me observe, contains sound legal doctrine, and it breathes the true spirit of the christian religion, and, I regret, that the precepts which it endeavors to inculcate, were not followed in 1827, when it was written; nay, I regret that in 1825, the gentlemen composing the majority of the church, did not pursue in regard to their brethren the minority, a similar course of conduct, perhaps it would have been infinitely better if they had done so, instead of which we find them in 1825, deposing their christian brethren from office, soon after, suspending them from the church privileges, and finally expelling them from the church and its rights altogether; and indeed but yesterday, we were told, within their hearing, that they deserved all this, because they were mere devils. Such conduct, to say the least of it, from christian brethren, towards brethren of the same church, is not calculated to bring about a christian reconciliation or to save the souls of sinners, at least not in my opinion. But in relation to this opinion, the sole question is, can this court pro- nounce the name, style and title of the first Baptist Church of Philadelphia, set forth in the instrument, to be unlawful? for if lawful, the court are required to cer- tify their opinion to that effect. The association have a right to choose a name for themselves, and there is noth- ing in the adoption of a name, which is borne by anoth- er, which infracts any known law. It neither deprives the other of his name nor of any thing else. I am there- fore of opinion, that this objection is without foundation.
At the close of the argument a point was made not mentioned before, that the 5th article in the charter was not lawful, nay, that it is palpably, flagrantly and fright-' fully unlawful, and I believe, it was even said it would establishra papacy in this state. If I really thought so, I would be the last man to sanction such a charter, but it does' not do so-let me approach this frightful mon- ster and see what it is." A copy of the 5th article of the charter is as follows :- "The secular affairs of said cor- poration shall devolve upon & be managed by deacons, John M'Leod, &c. naming the rest and their successors in office: who are declared a board of Trustees for that purpose, and shall at all times hereafter have full pow- er and authority to manage, transact, and dispose of all the estate and effects and temporal affairs of the church, in the most judicious manner, consistent with christian obligation and according to the bye-laws of the corpora- tion." It provides that they shall elect their Secretary and Treasurer, and make report of their doings to the church.
In my opinion there is not the colour of objection to any part of this article; or at least no objection which any other person than a member of the corporation can make. In the first place it provides that the secular af- fairs of said corporation shall devolve on, and be mana- ged by the present deacons (naming them) and their successors in office, and they are declared a board of Trustees for that purpose, and shall at all times hereafter have power and authority to manage, trans- act, and dispose of all the estate and effects and temporal affairs of the Church, in the most judicious manner, consistent with Christian obligation and the bye- laws of the corporation. I shall not mention objections made to this article on account of what is not in it .- Where a religious society, or a charitable, or a literary one, applies for an act of incorporation, one reason for this is always, for the easier and better arrangement of . its property; and this arrangement where the society is numerous is generally vested in a few of the members (who are sometimes named in the charter and some- times not) and their successors. Those in whom the management is invested may hold the appointment for one year, two, three, five or more, or for life. They may be indifferent persons, or it may be requisite that they or some of them should be of a particular descrip- tion, for example-The minister for the time being may always be one, or it may be requisite, that they should
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1829.]
be communicants of the Church, or deacons, or elders- and all these are equally lawful articles in the Charter. And we cannot reject an application for a charter, be- cause the managers of the fund, by whatever name they may be called, are to be elected more frequently or less frequently than we would advise, nor because they may be chosen from among those who held pews, or must be from those in full communion-and if a religious society choose it to be so, it is lawful, that their minister or their elders, or deacons, that those who are eminent and se- lected for piety and knowledge in ecclesiastical mat- ters, should also be intrusted with the management of the funds. I am therefore of opinion that the rule should be discharged.
Judge Tod then declared the following opinion, as containing the sentiments of himself and Judge Rogers. JUDGE TOD'S OPINION.
- Much new evidence has been produced; and new ar- guments have been offered; by which I must say that my opinion is not changed, but rather confirmed .- Some notice of this additional matter appears to be in- dispensable. We are asked, if we'ean well retract our approbation solemnly given to the charter? I would answer that to correct an error is not to retract our opin- ion. The usage had been to attend to this business of signing charters not in open court. It happened that the application in this case was made shortly after both the judges who resided in the city had unfortunately been removed by death. We might all have known, and probably did know, of the first Baptist Church of Philadelphia, without knowing that a number of gen- tlemen professing the Baptist faith had presented a charter for allowance, the first article of which is, "This corporation shall bei called and known by the name. stile or title of" The first Baptist Church of Philadelphia." When all those thus applying, without any exception, so far from being authorised by, or belonging, to, the real existing, first Baptist Church of Philadelphia, were not aliens only but enemies to that church and had been so for years.
Some matters doubtful before are no longer so .- What was then assumed as an historical fact is now prov- ed and admitted-the perfect equality of all the mem- bers of every Baptist church, and among the churches themselves the most entire independence of each other. Much new proof has been adduced as to the removal from office of the former deacons, and the expulsion from the church of them and their adherents. On this head the rankest injustice is charged. Were it admitted for a moment that the charge was made out by the proof, yet perhaps it might be asked what authority have we under the act of 1791, to try and punish these offences? If there has been any violation of the legal right, the suffering party might have had a legal redress in some mode, and a trial by jury. If there is no legal right in the case, but a matter of ecclesiastical discipline only, it might, I think, be asked of those gentlemen, who of their own free will have joined the Baptist church, why they should decline what every Baptist by becoming such agrees to submit to, the judgment of his peers, in all church matters, without appeal to any power on earth ?
vation; no more than is usually done in such cases in in- dependent churches. The same power is excr- cised by all religious communities. They proceed in their own forms, and not in the forms of criminal law. There appears nothing very intolerant in a majority re- fusing to be harrassed by endless broils and contention; nor any thing in the nature of liberty, inconsistent with a proper remedy against faction and disorder, when pro- ductive of mischiefs otherwise incurable. In cases of much greater magnitude, and those of the highest im- portance, how far the majority is permitted to go in sus- taining the rights and integrity of the whole body by necessary cocrcion, will appear evident from that law of the commonwealth which declares, "that if any per- son shall ereet or form, or shall endcavour to erect or form, any new and independent government within the boundaries of this commonwealth, or shall put up any notice written or printed, calling or requesting the pco- ple to meet together for the design or purpose of form- ing a new and independent government, and all who shall assemble themselves for that purpose, shall be ad- judged guilty of high treason," &c.
At any rate, the majority must govern in Baptist churches, or there is no government among them- equality among the members belonging to that faith is older than our present civil liberty, or our constitutions -not a few of our civil rights have perhaps been de- rived, from the religious reformers. When it is insisted that the minority have their rights also, I agree most heartily to that, but I do not agree that the right to gor- ern shall, by any means, be numbered among the rights of the minority. The schism in question appears to have arisen out of a mere squabble for power. The minority once offered in effect to aid the war if the new deacons would resign their posts; this offer was evaded, .they say, and on this point I incline to agree with the minority that there was an cvasion, but that is immate- rial to the question before us. Thus five or six gentle- men, respectable and estimable men no doubt, for a long time leaders & officers in the firstBaptist church, but who by the fundamental laws of the society held their office only during the mere will and pleasure of the majority, become indignant because the majority in the exercise of their lawful power, had elected additional deacons with co-ordinate authority. If there were other causes of dissention, they have not been specified. The Bap- tist association meet to settle the dispute. They decide nothing, nor had they power to decide. They recommend a mode of compromise and express an opinion,as I under- stand it, unequivocally favourable to the minority, but which opinion is admitted not to be binding upon the ma- jority any further than they think fit to be bound. The minority persist, and the church persists. The old offi- cers are joined by about one seventh part or one sixth part of the congregation. The church then went on with quite as much slowness, in my opinion, and with quite as much regard to all the forms and substance of justice, as is usual in such contests, to put the only end which probably could be put to the whole disturbance by expelling the malcontents. The minority thus ex- pelled, assume the appearance of the existing visible church. They propose a charter in name of the church, but in effect to themselves by investing their leaders as officers with very large powers. 'This is done without notice to the other side, of their intentions, or notice to us of the uncommon circumstances of the case. The existing church unanimously rejects and abhors this charter of incorporation. Our approbation thus obtain- ed, not having been conclusively acted upon, may yet be annulled, and in my opinion ought to be annulled. But as the court thinks differently, I shall do what, in my apprehension these applicants have not done, most readily submit to the majority.
Even suppose the majority to have acted unjustly, and the power of redress to be in us, yet we ought, in my opinion, to avoid, if possible, this sort of redress and this sort of punishment. I would hardly consent to do any thing against the first Baptist church of Phil- adelphia, which might have even the appearance of de- grading them from their stile and title, and putting them to the hard necessity of giving up their old name and taking a new one, or else encounter the risk of subju- gating to a self-nominated hierarchy, and a sort of revo- lution in the oldest Baptist church in Pennsylvania, from democracy to oligarchy. In point of fact the in- The chief justice then made some desultory remarks by way of advice to the majority, in which he recom- mended to them to grant to the minority their share of justice is not apparent to me from the evidence. It would seem that the majority has done no more than was required by their church rules, and by selfpreser- | the property, which was clearly the only matter in dis.
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pute. The cause of religion, he said, had nothing to do with the controversy. We did not understand the chief justice, as he has been reported, to say that there was any legal writ or process by which the property of the church could be divided; or that the majority of the church could be compelled to make partition; but that he re- commended this course as a fair and equitable mode of settling this controversy.
J. Rılıll, J. R. Ingersoll and C. J. Ingersoll, for the majority, Charles Chauncey and Horace Binney for the minority.
ST. PAUL'S CHURCH. The Commonwealth at the relation of Susanna B. Sho- ber, and others.
r's. Richard North, and others.
This was a rule to shew ca use why an information in the nature of quo warranto, should not be filed against the defendants, to inquire by what authority they exer- cise or claim to exercise, the office of Vestrymen of St. Paul's Church.
This church was incorporated by Act of Assembly passed 23d September, 1783, the 10th Section of which provides "that the Vestry of said Church, shall always consist of 20 persons, members of the said Church, of which number the Church Wardens are always to be two; and that the election of such Vestry shall be made every year on Easter Monday, or some day in the same week (of which the said congregation shall have notice) by a majority of such members of said church, as shall ap- pear by the vestry books to be contributors to the support & maintenance of the said Church, having & paying for a pew, or part of a pew, sufficient for one person at least, and to be of full age, who only shall have a right to vote for the Vestrymen of said Church."
It appeared in evidence, that at an election for Ves- trymen held on Easter Monday last, the relators and other females, coming within the provisions of this Sec- tion, offered their votes, which were refused by the Judges of the election; and that had their votes been received, other persons than the defendants, would have been elected.
The case was submitted at the March term by Mr. Kittera on behalf of the relators and held under advise- ment by the court until the present Session, when on motion of Mr. Chauncey for the defendants, a reargu- ments was ordered. Further proof was now offered, by which it appeared, that for the last 25 years the fe- males of this church had not exercised their right to vote. That during this period there were but two con- tested elections, of which the present was one, and that at the other the ladies attended at the Church in order to vote, but finding that their votes were unnecessary, retired.
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