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 3

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 3

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Then as to the claim of a trial with Burnett. It seems from some of the evidence that Burnett had declared that Mr. Shermer had said that Mr. Rusling had made a false statement. This is all the explanation we have upon this subject. This also will be finally passed upon by you ; but I cannot resist remarking that I am at a loss" to perceive how a demand for a trial with Burnett for merely making such a declaration, could have furnish- ed the slightest reason for a postponement of the trial before the Committee. No formal accusation appears to have been presented against Burnett, and the com- plaint alleged, would seem to have involved one of the very questions which were about to be investigated. A decision either that Mr. Burnett had, or that he had not, made such a declaration, would have determined nothing as between Mr. Shermer and Mr. Rusling.

It has been contended that the allegation of Mr. Sher- mer, even if not correct, did not amount to slander ; in other words, that the charge of making a false state- ment meant nothing more than the charge of making an erroneous or mistaken statement. The Committee gave a different construction to the words, and as he did not attempt to substantiate his assertion, they convict- ed him of slander.

I incline to the opinion, that, without consulting lexi- cographers, ninety-nine men in every hundred would agree with the Committee in their construction of the words " false statement ;" would feel that a charge against themselves of making a false statement, was an imputation upon their characters for integrity and hon- or ; would suppose that such an accusation contained an implication that the statement itself, and the thoughts of the party making it were not in harmony. If however a reasonable doubt could be ingeniously raised, courts and juries should require a very strong case indeed be- fore they would undertake to shield an individual from the effects of the obvious and usual inferences to be drawn from his own language. Even if the phrase had been ambiguous, would it not have furnished probable ground for mistake ? and if so, the law would not have awarded damages for any injury that might by possibili- ty have resulted, Every man employing such language, does it at his own risk.

How stands the matter ? Mr. Thatcher states that he But further, one of the counsel for the plaintiff has contended that Mr. Rusling had actually made errone- ous statements, both on the 14th of April, 1829, as to certain temporal affairs of the church, and on the 28th day of December, 1828, relative to the pay of the Rev. told Mr. Shermer that ifhe had asked the names of the Committee at the time of the notification of trial, and then objected, he (Mr. T. ) would have done any thing in his power to have got those to whom he would not have objected, but that the discipline did not admit of Mr. Miller, designated by the witnesses as father Mil- objections at that stage of the business. He adds, Iler. The facts do not appear to have been investigated

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1833.]

by the Committee, but they have been thoroughly ex- amined here.

It would seem from Mr. Walton's testimony, confirm- ed on this point by other proof, that the statement in question on the trial of Mr. Shermer before the Com- mittee, was that of the 14th of April, giving an outline of the annual report.

Mr. Walton and Mr. Hulzert substantially agree in their accounts of this statement. Among other things, Mr. Rusling said, "the gallery built cost $900, and all " paid ; the blinds $100, and paid ; the fixtures, bench- "es, lamps, building a front wall cost about $500, and " this was all paid but $150, and that was in a note not " yet due and supposed it would be met." These are the very words of Mr. Walton the principal witness for the plaintiff. He adds, "the Church certainly owed "upwards of $3000 at that time ; this was the state- " ment as ; to which the dispute arose ;" and again, " there was no general balance for and against the " Church stated at that time by Mr. Rusling."

Now it is very clear that when Mr. Rusling said "this was all paid but $150," he expressly referred to the sum of $500 mentioned immediately before, and to no- thing else ; and it is in evidence by the books of the Church that he was so far right.

Under these circumstances, Mr. Shermer insisted that Mr. Rusling had made a false statement, because there was a much larger sum than $150 due by the Church on a general balance of its accounts. And it struck me as not a little extraordinary that Mr. Walton appeared to labour under the same error, even while giving his evidence here, and furnishing a history of Mr. Rusling's statement, having the effect (though not so designed) of preventing misconception in any im- partial mind.

As to the statement about father Miller, I will refer to it presently.

The next step was the decision of the Committee.

They unanimously pronounced him guilty of the charges ; which were slander and falsehood.

Mr. Thatcher testifies as follows : " Having received their decision, and taking the discipline in my hand, I wrote the language " guilty of crimes expresssly for- bidden by the word of God, and sufficient to exclude him from the kingdom of grace and glory ;" (Sect. 2. Chap. 2.) Further than this I could not go, these are the terms of the judgment."

The presiding elder having given his opinion in wri- ting that slander and falsehood as proved against Mr. Shermer were crimes, " expressly forbidden," &c .- pursuing the words above quoted, refers any further action to Mr. Rusling the minister in charge, whose duty, by the same section, is declared to be, in the case of a conviction of any such crime, to expel the party.

What does the expulsion amount to? In the same sec- tion of the second chapter it is laid down that "After such forms of trial and expulsion, such persons shall have no privileges of society or of sacraments, in our church, without contrition, confession, and proper trial."

As soon as Mr. Thatcher had reduced his opinion to wri- ting, he delivered the document to the minister. This was on the 23d of June, 1829. He adds "I went over imme- cliately and notified Mr. Shermer, and added that there would be a space allowed him to consider and propose terms of peace to the Church, and save his expulsion. There was no imperious necessity to his being expelled if he had made terms. As he appeared agitated, I ob- served that he had demanded the trial and must take the consequences. He then said no terms would satis- fy him but his being restored to his leadership."

After some intermediate proceedings, which will be noticed in a moment, Mr. Rusling, on the 1st of July, 1829, writes a note to Mr. Shermer, in which he says, " I do hereby according to the discipline of the M. E. Church, pronounce you expelled from the aforesaid Church."

And here it may be well to notice an argument of the plaintiff's counsel, charging the committee and presid- ing elder with having boldly undertaken to denounce the plaintiff to eternal punisliment. It is due to a re- spectable religious denomination, to these defendants, to the plaintiff himself, and to the cause of candor and truth, that we should scrupulously avoid suffering our judgments to be influenced by misconception or error on such a point as this. A fair statement of the matter exhibits it thus: The committee having declared Mr. Shermer guilty of slander and falsehood, the presiding elder gives his opinion that these are crimes "express- ly forbidden by the word of God, and sufficient to ex- clude a person from the kingdom of grace and glory." The expulsion by the minister consequent thereon, de- prives Mr. Shermer of "all privileges of society or of sacraments, in the Church, until after contrition, confes- sion and proper trial." The legal effect is to deprive him of his rights as a corporator.

There was a suggestion on the part of the plaintiff that the conviction was under a wrong clause of the se- venth section of the second chapter of the discipline; that the proceeding, if attempted at all, should have been under the provision relative to "indulging sinful tempers or words." This is denied on the other side. It would seem that a similar expulsion might have re- sulted to an individual obstinately persisting in offend- ing even under this clause. You will determine here also, whether there was error or not; and if there was, how far it attached to the members of the committee, or any other of the defendants; and whether it was com- mitted in good faith, or was wilfully and maliciously perpetrated to the actual damage of the plaintiff.

Now it is, clear, that if, so far, no cause of action ex- ists, nothing that took place after this stage of the transaction could possibly create one. The subsequent proceedings consisted of an unsuccessful effort to have the decision of the committee, and the expulsion grow- ing out of it, reversed; the very expulsion which forms the basis of the plaintiff's suit. If the conduct of the defendants up to this period was right, then there is an end of the case. If that conduct was wrong, and yet was without the ingredient of malice, still the plaintiff has no legal cause of action. If again that conduct was wrong, and there was malice in it, yet if the par- ties had probable cause for their proceedings, the plain- tiff is not entitled to a verdict. Should you adopt either of these views of the case, you need hardly trou- ble yourselves with a further examination of the facts relative to the appeal to the quarterly conference. Should you however adopt neither of them, and believe that the plaintiff is entitled to your verdict, then the subsequent occurrences become important as furnishing matter either in mitigation or aggravation of the injury done to the plaintiff, and may seriously affect the ques- tion of damages.

Some attention is therefore due from the Court to this part of the case.

The doubt at first expressed as to Mr. Shermer's right of appeal to the conference, was waived on the part of Mir. Thatcher and Mr. Rusling.

It is alleged on the part of the defendants that Mr. Rusling refrained, for several days, from expelling Mr. Shermer, in the hope of an arrangement of the difficul- ty; and that it was not until the first of July, after a note had been received from the plaintiff's counsel, propos- ing a full hearing before another tribunal constituted according to the laws of the Church, that Mr. Rusling pronounced the expulsion, which was deemed necessa- ry in order to give Mr. Shermer another trial before the only proper tribunal, namely, the quarterly conference. Of all this and its effect you will form your own opin- ion. "The expulsion being declared however on the 1st of July, Mr. Shermer on the 3d of July "enters his ap- peal to the next quarterly conference."

The conference met. How is it constituted?

In the fifth section of the first chapter of the Disci-

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[JULY

hline, it is said, that a quarterly meeting conference to receive and try appeals, shall consist " of all the travel- ling and local preaches, exhorters, stewards, and lea- ders of the circuit, and none else."

Mr. Thatcher and three of the committee appear to have been members of this conference; several other defendants were also members.

You have heard the testimony of Messrs. Walton, Zeigler, James and others, relative to the proccedings of the conference; and you have before you the record kept by the Secretary. The decision of the committee was approved of and confirmed. You have had the bene- fit of a full discussion at the Bar as to the character and duty of this body, and can determine for yourselves up- on every question which seems to me to be essential to be decided. Believing that on this part of the case there is no legal point requiring an opinion from me, it is submitted to you to say upon the principles already presented touching mere error of judgment, malice, and probable cause, whether the doings of the confer- ence affect the plaintiff's case at all, and if they do, to what extent.

I have thus, gentlemen, noticed the whole case, as is presented by the pleadings. Various other matters, not embraced in the issue formed between the parties, have been given in evidence, and freely discussed, as bearing upon that issue or some branch of it. I will briefly notice some of these.

1. The topic of Reform has been adverted to. Though I refused to allow a general inquiry into it, yet I feared we should be obliged to hear incidently more of it that has actually reached us through the evidence. I need only remark that we have nothing to do with it.

2. Much has been said relative to a statement made by Mr. Rusling, in December 1828, that his predeces- sor the Rev. Mr. Miller has not been paid.

Mr. Miller's allowance was to consist partly of salary and partly of board. In truth the salary was all paid, but the board was not all paid.

There was some testimony, though it was denied to be true, as to a complaint by Mr. Shermer, at the con- ference held within a day or two afterwards, that Mr. Rusling had made an incorrect statement on this point; and as to the matter being taken up and acted upon in the conference.

Again it appears that Mr. Walton accused Mr. Rusling of telling a lie on this subject; and that a committee, after trial, convicted Mr. Walton of having falsely ac- cused Mr. Rusling of telling a l.e.

Mr. Shermer being the present plaintiff and Mr. Walton his leading witness, it is alleged on the part of the defendants that the conduct of the plaintiff in this business of Mr. Miller, evinced a disposition to seize and distort every expression of Mr. Rusling which could by possibility be misconstrued; and that it there- fore exhibits the plaintiff as entitled to no favour with this jury; and that as to Mr. Walton, his conduct mani - fested a similar disposition; and that this transaction presents, in the conviction to which he was subjected, a ground of resentment on his part against Mr. Rusling, which tends to disqualify him from speaking impartial- ly as a witness in this case.

These positions have been commented on by the Counsel on both sides, and the effect of the whole is for your decision.

3. Then as to the sermon of the 8th of August 1830, in which Mr. Rusling used these words "vagabonds on the face of the earth."

This was after the present suit was brought. Both Mr. Rusling and the plaintiff have agreed that the plain- tiff was not alluded to. It is by no means clear, from the evidence, what was the exact language of Mr. Rusling in that sermon, or what was its application. But in connexion with it, a printed circular signed by J. Walton, J. Shermer and J. Biddle, was put in evi- dence on the part of the defendants, and it is alleged that it shows prejudice and animosity on the part of

those three witnesses, and thus affects their testimony. Of the weight of all this you will judge.

4. One word as to the alleged refusal of the Books. The witnesses do not agree exactly as to what was re- fused to Mr. Shermer, or at what precise time his de- mand was made. It seems that he was not allowed to take with him the books of the church, but that copies of any parts he desired were offered to him. A mem- ber of a corporation like this has a legal right to inspect its books, but he cannot of his own authority take them from the custody of the person regularly entrusted with them. Mr. Shermer's object was to prove that Mr. Rusling was in error as to the statement of the 14th of April. The books have been produced here, and they plainly sustain Mr: Rusling when his language is fairly understood.

5. The plaintiff offered in evidence the declarations of George Thumlert one of the defendants. I received them as evidence at least against himself. It seems, however, that he is the brother-in-law, and the avowed friend of the plaintiff, and that he was guilty of the in- defensible and undefended act of going with other de- fendants to the office of their counsel, in the confidence of the relation of a co-defendant, and immediately communicating to the plaintiff what had taken place. It further appears that he made declarations for the ex- pressed purpose of having them given in evidence to affect the other parties, while he avowed he would not come into Court and be a witness. He doubtless was aware that in Court he would be put upon his oath, and be subject to a cross-examination. I need hardly ad- vise you that any thing proceeding from such a source, under such circumstances, should be wholly rejected. The plaintiff's counsel have very properly refrained from relying on his declarations.

6. This dispute with Mr. Burnett at the love feast, growing ont of Mr. Shermer's attempt to enter without a ticket and without permission; the circumstance that on Shermer's own testimony the Grand Jury in the Quarter Sessions refused to find a bill against Burnett for assault and battery; the attempt of Mr. Shermer to vote at the election for trustees; his letter to Mr. Kirk in connection with his order to his child; his language to Mr. Fraley and to Mr. Samuel Miller, have, with other matters, been adverted to,to prove a spirit of bitter- ness and determined hostility on the part of Mr. Sher- mer towards Mr. Rusling and his friends, and to show that this suit is brought not for the purpose of obtaining justice, but with a-view to harrass and vex the defen- dants.

On the other hand, the acts and language of the de- fendants, on various occasions, particularly those of Mr. Rusling at the leader's meeting, before the committee, and before the conference, have been minutely noticed, as manifesting a settled purpose to remove Mr. Sher- mer from the station of class leader, and expel him from the Church, whether liis conduct would warrant it or not.

Upon all these suggestions you have heard the able remarks of the counsel on both sides.

In reviewing the whole case, Gentlemen, an impor- tant and interesting duty devolves upon you. In rela- tion to the credibility of the witnesses, I repeat that you are the exclusive judges. In the discharge of your obligation on this head, you will consider as to each witness, the degree of intelligence which he exhibited, his opportunities of knowledge, his temper, his man- ner, his consistency, and every actual or probable ground of bias or impartiality in regard to him. When you have done all this you can safely decide.

The question of damages is entirely for your decision. The plaintiff contends, that by reason of the acts of the defendents, he has suffered pain and distress of mind, has lost the good opinion of his friends and neighbours, has been deprived of his share of the real estate of the corporation, and has been put to great expense in the

1833.]

EARLY OPINIONS RESPECTING ARDENT SPIRITS.

prosecution of his claim. All this will be carefully weighed by you.

The plaintiff's counsel have carefully designated the several parts of the evidence which they deem to affect the defendants respectively. If you determine that the plaintiff is entitled to a verdict, you will consider whether it shall be against all or only some of the de- fendants, and will discriminate accordingly.

There is another point which it is my duty to notice, as it is controlled by the settled rules of law. This be- ing an action for a Tort, the damages cannot be severed. If you deem the plaintiff entitled to damages, you will ascertain how much the most culpable of the defendants ought to pay, and assess that amount against all whom you may hold to be guilty. If you find that there is no cause for action, your verdict will be generally for the defendants.

VERDICT-For the defendants.

PHILADELPHIA COLLEGE OF PHYSICIANS. Its early opinions respecting Ardent Spirits.

As part of the history of Temperance Reform, and serving to show the opinions held even at that time by many estimable and learned physicians, we publish the following extract from the minutes of the College of Physicians of Philadelphia, for which we are indebted to its present Secretary, Dr. Bond .- Journal of Health.

On the 4th of September, 1787, it was resolved by the College of Physicians that a committee be appoint- ed, consisting of Doctors Jones, Rush and Griffitts, "to draw up a petition to the Assembly of this Common- wealth, [Pennsylvania, ] setting forth the pernicious ef- fects of Spirituous Liquors upon the human body, and praying that such a law may be passed as shall tend to diminish their consumption."

On the 6th of November, this committee made a re- port which was adopted, as follows, the following mem- bers being present:

Doctors John Redman, President; John Johns, Wil- liam Shippen, Jr., Adam Kuhn, Benjamin Rush, Tho. mas Parke, George Glentworth, James Hutchinson, Benjamin Duffield, Nathan Dorsey, Samuel P. Griffitts, Benjamin Say, John Carson, William Currie, William W. Smith, John R. B. Rodgers.

" To the Honourable the Legislature of the State of Pennsylvania:

The Memorial of the College of Physicians of the ci- ty of Philadelphia, respectfully sheweth,-

That your memorialists have seen with great concern the numerous evils which have followed the intemper- ate use of distilled spirituous liquors in the State of Pennsylvania. They decline taking notice of the bane- ful effects of these liquors upon property and morals, and beg leave to confine this memorial to their influence upon the health and lives of their fellow citizens, and the population of their country.

That among the numerous diseases which are produ- ced by the use of distilled spirituous liquors, they would only mention, the dropsy, epilepsy, palsy, apoplexy, melancholy, and madness; which too seldom yield to the power of medicine.

That where distilled spirituous liquors do not produce these terrible and obstinate diseases, they generally im- pair the strength of the body, so as to lessen its ability to undergo that labour, either in degree or duration, which it is capable of without them.

That the prevailing ideas of the necessity and advan- tages of using distilled spirituous liquors to obviate the injurious effects of extreme heat or cold upon the hu- man body, are altogether without foundation, and that they increase the evils, which they are taken to remove. 'That the inconvenience arising from excessive labour,

heat or cold, are to be removed with much more safety and certainty by the use of cider or malt liquors.

Your memorialists, therefore, pray, that your Honour- able House would take the facts herein stated, into their serious consideration, and as the guardians of the health and lives no less than of the liberties and morals of their constituents, that they would enact such a law, for the checking the improper use of distilled spirituous liquors, as to their wisdom and humanity may seem proper."

On the 7th of December, 1790, the college appoint- ed a committee consisting of Doctors Jones, Rush, and Parke to draught an address to "be presented to the Senate and House of Representatives of the United States, praying them to take speedy and effectual means to discourage as much as possible the importation and use of distilled spirituous liquors." On the 27th of the same month the following Address was adopted and or- dered to be presented.

"To the Senate and House of Representatives of the United States in Congress Assembled,

The Memorial of the College of Physicians of the ci- ty of Philadelphia respectfully sheweth,

That they have seen with great pleasure the opera- tion of a national government, which has established order in the United States.

They rejoice to find amongst the powers, which be- long to this government, that of restraining, by certain duties, the consumption of distilled spirits in our coun- try. It belongs more peculiarly to men of other pro- fessions to enumerate the pernicious effects of these liquors upon morals and manners .- Your memorialists will only remark, that a great proportion of the most obstinate, painful, and mortal disorders, which affect the human body, are produced by distilled spirits-that they are not only destructive to health and life, but that they impair the faculties of the mind, and thereby tend equally to dishonour our character as a nation, and to degrade our species as intelligent beings.

Your memorialists have no doubt, that the rumor of a plague, or any other pestilential disorder, which might sweep away thousands of their fellow citizens, would produce the most vigorous and effectual measures in our government to prevent or subdue it.

Your memorialists can see no just cause why the more certain and extensive ravages of distilled spirits upon human life should not be guarded against with corres- ponding vigilance and exertions by the present rulers of the United States.

Your memorialists beg leave to add further, that the habitual use of distilled spirits, in any case whatever, is wholly unnecessary-that they neither fortify the body against the morbid effects of heat or cold, nor render labour more easy, nor more productive-and that there are many articles of diet and drink, which are not only safe and perfectly salutary, but preferable to distilled spirits for each of the above purposes.

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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 3

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