The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. XII, Part 2

Author: Hazard, Samuel, 1784-1870
Publication date: 1828
Publisher: Philadelphia : Printed by W.F. Geddes ;
Number of Pages: 438

USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. XII > Part 2

Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).

Anthony Shermer, vs.

Joseph Rusling, George Thumlert, Alexander Ran- kin, Enoch Burnett, William Mager, Benton Costin, Thomas Mullin, Frederick Reel, John G. Wolf, John Gable, Abel Matthias, Isaiah Wharton, Jacob Zeigler, William Thomas, William Thomas, No. 2, Frederick Steinman, Benjamin Butterfield, John Little, Samuel Rinedollar, and Josiah Eadle.

JUDGE PETTIT'S CHARGE.

JUDGE PETTIT, after adverting to the patient attention of the jury, and the able arguments of the counsel, proceeded to deliver his charge, substantially as fol- lows :

This, gentlemen of the jury, is an action of trespass on the case brought by Anthony Shermer against Jo- seph Rusling and eighteen other defendants. It is ne- cessary, in order to arrive at a sound decision, that the precise case presented by the pleadings should be kept distinctly in view.

'The plaintiff alleges, in his declaration, first, the ex- istence of a corporation called " The St. John's Street Methodist Episcopal Church in the City and County of Philadelphia ;"-secondly, that he was a member of that corporation ; and thirdly, that he was a leader of a class in the congregation, according to the rules and discipline established by said corporation.

Ile complains, first, that the defendants by unlawful and malicious conspiracy among them, had, did, unlaw- fully, maliciously, and without any previous notice or just cause, remove him from his said office of class lea- der ; secondly, that they did unlawfully, maliciously and oppressively, and without any just or reasonable cause, expel him from the said corporation ; and thirdly, that they did by Joseph Rusling, openly and publicly in presence of the congregation, proclaim and declare that he was expelled from the said church.

For the injury thus alleged he claims damages. The defendants have pleaded not guilty.

taking issue on the merits ; but as they had waived that course, I would at present hold the law to be in favour of the plaintiff, so that a full decision on the merits of the cause might be bad, while the defendant would have the benefit of a review of the law hereafter, in case your verdict should be for the plaintiff. You will take the case therefore to be clear of all embarrass- ment of that kind. Should it become necessary the court will hereafter look to this question.

Before entering into the main case, allow me to make some general remarks which I deem applicable to the subject.

It is a universal rule, that wherever the legal rights of one individual are invaded by another, the law will furnish a remedy by suit or action. A plaintiff is not required to show as essential to a recovery, that the precise case has occurred before. If he has been de- prived of a legal right, if he has sustained a civil injury, he will find a remedy in the law, although it should happen that a like case is not to be found in the law books.

The right of the citizen to worship Almighty God according to the dictates of his conscience, is a natural and indefeasible one, and is recognised and unalterably established by the constitution of our commonwealth. As no man can of right be compelled to join any reli- gious society, or to maintain any ministry against his consent, so no man can be prohibited from leaving any religious association which he has voluntarily joined, on his complying with the conditions which he had himself agreed to by the act of becoming a member. That there might be no possible misapprehension on this subject, it is declared to be one of the great and essen- tial principles of free government, that no human au- thority can in any case whatever control or interfere with the rights of conscience.

While this is the rule as to individuals, corporations for religious purposes also have their rights; as they are created by the law, so they are authorised to do every . thing needful for their good government, not repugnant to the constitution and laws. In this country, religious societies are not only tolerated by the law, but in the faithful exercise of their powers, and in the honest en- joyment of their privileges, they are protected by it. In relation then to this plaintiff and these defendants, and the corporation referred to in the plaintiff's declaration, the law of the land is equal and just.

This suit is certainly a peculiar one. I said early in the investigation that I could recollect no such case in practice or in the books, and asked the counsel to re- fer to a precedent if one could be found. Their research- es have not enabled them to produce it. Still, how- ever,if a wrong has been done to the plaintiff, if any of his legal rights have been taken away by the unlawful and malicious conduct of the defendants; I lay it down to you as a rule for your government, under the reservation already mentioned, that the law will give him redress.

The action is trespass on the case. The distinction is, that where the act complained of is an immediate wrong, against all forms of law, trespass vi et armis is the proper action ; but where the forms of legal process are used, but used oppressively and maliciously, trespass on the case furnishes the appropriate remedy. In the

Whether this declaration sets forth a legal ground of action, is a question of some interest, The defendants' counsel were about to argue it, when I suggested that they could have raised the point on a demurrer before ) first case the immediate uct gives the party his action VOL. XII. 1

IMPORTANT TRIAL.

[JULI

for the injury sustained, without relation to the motive | that they were occasioned by the malicious conduct of of the act ; in the latter case the motives of the defen- dant must be inquired into as forming part of the very essence of the suit.

Though the plaintiff alleges that he has suffered injury through the conspiracy of the defendants, yet this is only an action on the case in the nature of a con- spiracy ; the words in the declaration "by conspiracy among them had, "are but matters of aggravation, and are not necessary to be proved to support the action. The dumoge sustained by the party is the substance of the action, and not the conspiracy. Hence a verdict against one defendant only, acquitting all the rest, would be good.

It is not to be overlooked that in actions of this kind, the plaintiff has some advantages in relation to the pro- duction and exclusion of testimony. Of the persons ac- quainted with the facts, he may select such as will suit his purposes for witnesses, and by inserting the names of the others in the writ and giving some evidence, no matter how slight, to connect them with the doing of the acts complained of, he may exclude their testimo- ny from the court and jury. The jury, however, while they will give a plaintiff just protection, will always take care that the defendants are not injured by an a- buse of this privilege.

It is also proper to remark, that while proper actions for malicious torts will be sustained by courts and ju- ries, still, as a general rule, such actions are not to be encouraged. We are not to be astute in looking for improper motives. The plaintiff in every instance must fully prove his case.

The cause before you is in many respects different from the ordinary action for damages sustained by a malicious prosecution in an alleged criminal matter, or an action for a malicious arrest under civil process. In those actions we refer to proceedings in the legal tribu- nals of the country ;- in this, the plaintiff shows proceed- ings against, him by the authorities (claiming to be duly constituted) of a corporation, and decisions against hini by those authorities :- namely, the minister in charge ;- the committee appointed to try him ; and the quarterly conference. Again, in those actions the plaintiff must allege and prove that the proceedings complained of, had actually terminated in his favour. In the present instance the plaintiff makes no such alle- gation, and it is part of the case that the removal from his place as class leader, and the expulsion from his membership in the corporation are in full force. In those actions, the persons constituting the tribunals, whether magistrates, judges, or jurors, cannot be assail- ed, while here-the plaintiff has included in his writ many of the individuals who composed the tribunals which decided against him.

I have already stated that the legal effects of this dif- ference need not be considered now ;- it being com- prehended in the matters for review hereafter, if you find for the plaintiff on the merits.

This action is however so far analagous to those just referred to, that the plaintiff alleges oppression, malice, and want of just or reasonable cause. On this subject the principles of law, which govern those actions, must control the present one also. The plaintiff admits this by his declaration and the course of the argument. It is yielding to him all that can possibly be asked, to regard him as standing upon the ground of a party brought be- fore the civil tribunals, and regularly acquitted and dis- charged. If his case cannot be made out upon these principles, it certainly cannot be made out at all.

The plaintiff must then prove the malice of the de- fendants, and the want of probable cause for their pro- ceedings in regard to him. No matter what errors in point of fact the defendants may have committed, yet if they were honest errors ;- if there was no malice, and no want of probable cause, this suit cannot be sus- tained.

Malice is a necessary ingredient. The injury and the damage to the plaintiff must be proved, and further

the defendants. The proof of malice may be either posi- tive, or it may be collected from the circumstances of the case. The jury are to judge of the testimony, and thence determine whether or not there has been malice. Among the circumstances from which the jury may infer malice is the want of probable cause. This, however, may or may not amount to sufficient evidence of malice. The jury are to judge.

In addition to the proof of malice, there must be proof of the want of probable cause. No matter how malicious the conduct of the defendants may have been; yet if there was probable cause, this action will not lie.

These are uncontrovertible rules of law ; and when the grounds of them are investigated, it is found that sound policy and good sense unite in giving a sanction to them. They cannot be too earnestly pressed upon your attention.

Doubts have been sometimes expressed as to the precise duty of the court and jury respectively, in re- gard to probable cause. In this case, however, no diffi- culty on that head need be felt. After explaining to you the meaning of probable cause, I will leave the ap- plication to the facts entirely to your own discretion and judgment.

I adopt the views of an eminent Judge, when I say, I understand the term probable cause, to mean, "a rea- sonable ground of suspicion, supported by facts suffi- ciently strong in themselves to warrant a cautious man in the belief that the person accused, is guilty of the of- fence of which he is charged."

An innocent man may become an object of suspicion and of a prosecution founded in motives of resentment ; but if he has intentionally acted in such a manner as to furnish to a reasonable mind ground for the suspicion, he must submit to the consequences of his own conduct. He cannot claim the aid of the law to compensate him for the losses to which he has exposed himself.

The general views having been stated, it becomes proper for us to look to the exact question to be de- cided.

The whole case will be found to be comprehended in two points.

I. The removal of the plaintiff from his station as a class leader.

2. The expulsion of the plaintiff from the church, and his consequently being deprived of his rights as a corporator.

The third allegation of the plaintiff, relative to a pub- lic declaration from the pulpit of his expulsion, is not relied on, and has not been proved.

Then as to the removal from the station of class lea- der.

What is a leader ?

A book has been given in evidence, and referred to by both parties, as containing " The doctrines and dis- cipline of the Methodist Episcopal Church."

In the first section of the second chapter of this work, it is stated that :

" Each society is divided into smaller companies, cal- led classes, according to their respective places of abode. There are about twelve persons in a class ; one of whom is styled the Leader-It is his duty,

I. To see each person in his class once a week at least ; in order,

1. To inquire how their souls prosper :

2. To advise, reprove, comfort, or exhort, as occa- sion may require :

3. To receive what they are willing to give, towards the relief of the preachers, church, and poor.

IT. To meet the ministers and the stewards of the so- ciety once a week ; in order,

1. To inform the minister of any that are sick, or of any that walk disorderly, and will not be reproved.

2. To pay thie stewards what they have received of their several classes in the week preceding."

In the second section of the second chapter, there is

IMPORTANT TRIAL.

1833.]

this question with the answer. " Ques. 2. Can anything more be done in order to make the class meetings lively and profitable ?

Answ. Change improper leaders."

And in the ninth Section of the first chapter it is de- clared to be one of the duties of a preacher in charge of a circuit, "to appoint all the leaders, and to change them when he sees it necessary."

The plaintiff, in joining this society, made all these provisions the law for himself. They formed, as to this matter, the rule between him and every other member of the Methodist Episcopal Church. As there is nothing in them inconsistent with the law of the land, he is not at liberty to come into a civil court and question either their expediency or their legitimate effects. He accept- ed his appointment as a class leader by virtue of them, and when Mr. Rusling became the preacher in charge. he, as such preacher, had the power to remove any lea- der when he saw it necessary.

Now, if Mr. Rusling honestly removed the plaintiff, it is not for us to inquire whether bis discretion was wise- ly and prudently exercised or not. If there was no malice in his act, and no want of probable cause for it, the court and jury have nothing to do with it. Indeed, as this office of class leader confers no civil rights, the question was made in the argument, whether, even sup- posing that the plaintiff had stated a sufficient ground of action on the other point, this could be made the sub- ject of a suit at law ; whether, in other words, the loss of such an office, under any circumstances, could pro- duce such a damage as the law would recognise. What- ever I might have deemed it my duty to say, had this been the only or the prominent question in the cause, I hold it right, considering the direction which the counsel on both sides have given to the case, to regard this also as a reserved question of law, and, for the pres- ent, to assume the position that the action will lie even on this part of the plaintiff's declaration.

But as the malice and the want of the probable cause must be shown, in order to sustain it, it will be neces- sary for you to look carefully at the facts.

The two principal witnesses on the part of the plain - tiff, who give us the account of the meeting at which this removal took place, are Jacob Zeigler and Jeremiah Walton.

[The Judge here referred to the circumstances under which these witnesses appeared, and the remarks of the counsel on both sides as to their credibility or accuracy, and after stating that these were matters exclusively for the decision of the jury, proceeded to read from his notes their testimony on this head. He then referred to the testimony of John H. Jumes, a witness on the part of the defendants, and after leaving the question as to his credibility and accuracy also exclusively to the jury, read from his notes, Mr. James' testimony also on this point.]

The amount of all this testimony seems to be, that Mr. Rusling, at a leaders' meeting, requested the plaintiff' to give some explanation of a charge which he said he understood the plaintiff had been circulating, that he, Mr. Rusling, had made a false statement. To a request so reasonable as this, and urged, as it appears, in a becom- ing tone and manner, Mr. Shermer repeatedly declared he would give no answer, until he (S. ) had a trial with Enoch Burnett. No reason for the trial with Burnett is given, and after consultation with the meeting, Mr. Rusling, in what he alleges to be the prudent exercise of his legitimate powers, removes the plaintiff from the station of class leader.

The subject of the false statement, and the claim for a trial with Burnett, subsequently present themselves again, and will, hereafter, require some further no- tice.

So far, it would be difficult to point out any evidence of malice, or want of probable cause, in relation to this removal. If the subsequent circumstances furnish any such evidence, it will be proper for you to consider it.

Mr. Shermer complains of injustice-the subject is kept alive, and a trial before a committee of the con- gregation is ordered. [The judge here read from his notes, some of the testimony of the witnesses. ]

A question was made in regard to the demand for this trial. From the record of its proceedings, and from the statement which Mr. Thatcher made to Mr. Shermer without contradiction, it would be fair to pre- sume that Mr. Shermer called for it. However, this cannot be of much importance.

The trial before the committee is the second feature of this transaction, and as it led to the expulsion of the plaintiff from the church, it furnishes, what his counsel have properly stated it to be, the main ground of this suit. If the trial before the committee had not taken place, it is not probable that an action would have been brought concerning the place of class leader. This be- ing undoubtedly the great question in the cause, the jury will give it the full investigation to which it is entitled.

The first matter in order is the accusation. Mr. Rus- ling charged the plaintiff with,

1. Slander, in these words : " Anthony Shermer has unjustly and falsely slandered my character as a minis- ter, by propagating that I had made a false statement.

2. " For falsehood also, inasmuch as he did, on Thurs- day evening last, before a class, declare that he did not know why his class was taken from him.

" Philadelphia, June 19, 1829."

The next step is the appointment of the committee. In the ninth section of the first chapter of the work before mentioned, it is laid down to be one of the duties of the elder, deacon, or preacher who has the special charge of a circuit,

"To receive, try, and expel members according to the forms of discipline."

In the seventh section of the second chapter, in an- swer to the question, " How shall an accused member be brought to trial ?" it is declared as follows :

" Ansı. 1. Before the society of which he is a mem- ber, or a select number of them, in the presence of a bishop, elder, deacon, or preacher, in the following manner : Let the accused and accuser be brought face to face ; but if this cannot be done, let the next best evidence be procured. If the accused person be found guilty by the decision of a majority of the members be- fore whom he is brought to trial, and the crime be such as is expressly forbidden by the word of God, sufficient to exclude a person from the kingdom of grace and glory, let the minister or preacher who has the charge of the circuit, expel him. If the accused person evade a trial, by absenting himself, after sufficient notice given him, and the circumstances of the accusation be strong and presumptive, let him be esteemed as guilty, and be accordingly excluded .- Witnesses from without shall not be rejected."

Mr. Thatcher testifies that, according to his impressions of his duty, where the contest was between a member and a preacher in charge, he, as the presiding elder, undertook to appoint the committee and preside at the trial. He therefore wrote to the plaintiff the note of the 19th of June, 1829, stating his views on this point, furnishing a copy of the charges, and requesting Mr. Shermer to attend before the committee at the time and place mentioned. Mr. Thatcher says, that when he delivered the charges to the plaintiff, he (the plain- tiff,) expressed high satisfaction that Mr. Thatcher should try his case, adding, that he now should have justice done him.

Mr. Thatcher explains the manner in which he made a selection of names for the committee, and Mr. Sher- mer, in his affidavit, submitted to the Supreme Court, which has been read to you, states the fact to be that Mr. Thatcher appointed the committee.

I have been thus minute on this topic, because, from something which fell from one of the witnesses, an effort

IMPORTANT TRIAL.'

[JULY

was made to show that Mr. Rusling and Mr. Matthias that Mr. Shermer refused to make any defence, threat- made the appointment of the committee. Their con-iened to appeal to the laws of his country, and with. drew.

nexions with it fully appears in the evidence of Mr. Thatcher.

The committee met.

Several witnesses, Messrs. Walton, Zeigler, Thatch- er, and others, gave an account of what took place be- fore them.

Mr. Thatcher's testimony has been attacked by the plaintiff's counsel, under circumstances which require some notice from the Court.

He held the station of Presiding Elder of the district; an office of high rank in the Methodist Episcopal church, conferred only on ministers of experience and elevated character, with powers and duties which ap- pear from the work already quoted to be of a very im- portant nature. He was produced as a witness by the plaintiff himself, and his testimony taken before arbitra- tors has now been read in his absence, under an agre(- ment of counsel comprehending this and other evi- dence. His statement is clear, consistent, and marked with intelligence. Why then should it be questioned ? It was not until it was found that it would not aid the it was Mr. Thatcher's only, or was shared by any or all cause of the plaintiff, who had thus produced him, that of these defendants ;- and whether it was honestly com- mitted or was wilfully and maliciously perpetrated to the actual oppression and injury of the plaintiff. an effort was made in the argument of the plaintiff, to throw doubts upon his motives and his accuracy. In this state of the matter, I deem it my duty to say, that Mr. Thatcher appears to me to be entitled to all respect and confidence at the hands of the court and jury. While I do this, however, I repeat what has been stated as to the other witnesses, that the degree of weight which will be given to his testimony, is still to be ultimately deter- mined by the jury.

[The Judge then referred to the record of the pro- ceedings of the committee, and read an extract from it. ]

Taking the whole testimony into view, it would seem, that the facts mentioned in the charges were strictly proved ; namely, that Mr. Shermer had propa- gated, that Mr. Rusling had made a false statement ; that Mr. Shermer had, in class, declared he did not know why his class was taken from him ; and again, that he did know why it was taken from him.

The offences charged to be the result of the facts, and which the Committee believed to be made out by the proof of the specifications, were slander and false- hood.

It would seem also, from the whole evidence, that Mr. Shermer objected, as soon as the charges were sta- ted before the Committee, to going on with the trial, for three reasons :

1. That one of the Committee, John Gabel, had pre- judged his cause.

2. That he was entitled, in the first place, to a trial with Burnett.

3. That two of the Committee had made out or sign- ed the annual report which furnished the ground of the statement alleged to be a false ore.

This third objection has been since ascertained to have been made under a mistake in point of fact, and the other two are the only points relied on here.

The objections were overruled, under the circumstan- ces and in the manner stated by Mr. Thatcher and oth- ers; Mr. Shermer withdrew ; the committee proceeded in the case, and gave their decision upon it.

It is contended on the part of the plaintiff that there was error in overruling these objections, and in the whole proceeding ; and that this furnished evidence of combination and malice in the defendants, some of whom were members of the Committee.

It is not enough that the plaintiff shows he made ob- jections ;- he must prove that he sustained damage by their being overruled ;- he must also exhibit something more than a mere error of judgment ; the malice and the want of probable cause should be made to appear.

Now when the question as to John Gable's having prejudged the cause is examined, it appears from the statement of John Ribble, as in evidence before you, that Gable had told him that A. Shermer ought to go out ; and it is somewhere in evidence that Gable alluded to this as having been spoken in fun. The true ques- tion would have been : Has Gable formed and expres- sed an opinion as to the guilt or innocence of A. Sher- mer in regard to the particular charges about to be tried ? If no proof that he liad formed such an opinion, could have been offered, the objection should have been overruled on its merits. You, Gentlemen, will, upon all this, determine for yourselves, how far there was error here at all. If there was any-then how far

Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.

The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. XII, Part 2

Author: Hazard, Samuel, 1784-1870 Publication date: 1828 Publisher: Philadelphia : Printed by W.F. Geddes ; Number of Pages: 438

Author: Hazard, Samuel, 1784-1870
Publication date: 1828
Publisher: Philadelphia : Printed by W.F. Geddes ;
Number of Pages: 438