CHAPTER VIII.

RELIGIOUS SOCIETIES-WHAT IS A RELIGIOUS SOCIETY-WHAT A RELIGIOUS CORPORATION-WHAT AN ECCLESIASTICAL CORPORATION HISTORY OF RELIGIOUS CORPORATIONS CREATED.

HOW

§ 100. A religious society is a voluntary association of individuals or families, taking a lively interest in the advancement of religion, united for the purpose of having a common place of worship, and to provide a proper teacher to instruct them in religious doctrines and duties, and to administer the ordinances of the church with which it is connected, or which may be accepted by the members composing the association, and generally to support the cause of morality and religion in the place where the society is formed. Although a church or body of professing Christians, is almost uniformly connected with a religious society, the members of the church have no other or greater rights than any other members of the society, who statedly attend with them for divine worship. (Baptist Church in Hartford v. Witherell, 3 Paige, 296.)

§ 101. The church is altogether a different body from that of the society, and we have but little to consider with reference to the church in its distinctive capacity, in a treatise upon the law of religious societies, though the matter will be referred to in another place, when the discipline and government of the several churches will be briefly explained. Over the church, as such the legal and temporal tribunals do not in general profess to have any jurisdiction whatever, except so far as is necessary to protect the civil rights of others, and to preserve the public peace. All questions

relating to the faith and practice of the church and its members, belong to the church judicatories themselves. (Ib.)

§ 102. The only religious societies recognized in law, are those which are incorporated, and thereby become bodies corporate, by special charters, or under the general incorporating act of a State. It has however been held that property may be granted to individuals for the use of a church not incorporated, in such a way as that when the society may be incorporated, it can take and hold it. It has also been held that trustees de facto of a religious society unincorporated, may maintain an action against a trespasser for an injury to the meeting house of the society. And in one case it was held that a bequest directly to an unincorporated Roman Catholic Church being of a highly meritorious character, and the objects of it being clearly expressed, should be sustained in a court of equity. The soundness of this doctrine, however, may well be questioned, within the principles enunciated in later cases in the Court of Appeals of the State of New York. But where there is no local statute contravening, property may be held by the trustees for the use and benefit of an unincorporated religious society, under the rule that, at common law, property may be granted to pious uses before there is a grantee in existence, competent to take it, in the meantime the fee being in abeyance. But an unincorporated religious society can neither hold or convey property, and in its collective capacity has no powers or rights whatever. (Reformed Dutch Church of Schenectady V. Veeder, 4 Wend. 494; Green v. Cady, 9 Wend. 414; Banks v. Phelan, 4 Barb. S. C. R. 80.)

§103. A religious corporation is an intellectual body politic, created by law, composed of several individuals, whose principal object is, to establish and regulate the congregation of a religious denomination, acting under a common

name, and endowed with perpetual succession, and vested with the capacity of acting in many respects, however numerous the association may be, as a single person. Like other bodies corporate, it is "an artificial being, invisible, intangible, and exists merely in idea, and has neither soul nor body," and cannot be deemed a moral agent, subject to moral obligation or personal suffering. It is reported that Chief Baron Manwood demonstrated that corporations have no souls, by the following curious syllogism: "None can create souls but God; but a corporation is created by the King; therefore a corporation can have no soul." (Angell & Ames on Corporations, § 7.)

§ 104. An ecclesiastical corporation in English law is, a body corporate, whose members are spiritual persons; and the object of the institution is also spiritual. The late Chancellor KENT, in his excellent Commentaries on American Law, denominates our religious corporations, ecclesiastical. Notwithstanding the high authority of this remark, technically speaking, it is probably incorrect, and particularly under the laws of New York. The Court of Appeals of this State, in an able and logical opinion, has decided that an incorporated religious society, under the statutes and laws of New York, does not belong to the class of ecclesiastical corporations, in the sense of the English law, but is to be regarded as a civil corporation, and governed by the ordinary rules of the common law. This is an important distinction in determining the powers and functions of the religious corporation. (Robertson v. Bullions, 11 N. Y. Rep. 243; 2 Kent's Com. 274.)

§ 105. Although a religious corporation, in some of its objects, embraces matters of a public nature, it is nevertheless regarded in law as a private body, in contradistinction to corporations relating to towns, counties, cities and parishes,

existing for public purposes; and the religious corporation is governed in general by the same rules which control other private civil corporations.

§ 106. Corporations to promote religious objects have existed from a very early period; perhaps as early as corporations of any other character. According to Sir WILIAM BLACKSTONE, the honor of inventing political associations for the advancement of religion, learning and commerce, belongs to the Romans; BLACKSTONE asserts upon the authority of Plutarch, that they were introduced by Numa, who finding, upon his accession, the city torn to pieces by the two rival factions of Sabines and Romans, thought it a prudent and politic measure to subdivide these two into many smaller ones, by instituting separate societies of every manner of trade and profession. They were afterwards much considered by the civil law, in which they were called universitates, as forming one whole out of many individuals; or collegia, from being gathered together. They were adopted also by the canon law, for the maintenance of ecclesiastical discipline. (1 Black. Com., 469.)

§ 107. From these ancient societies of the Romans, the English spiritual corporations were undoubtedly derived. though the laws of England have considerably refined and improved upon the original invention, according to the usual genius of the English nation; and there is no doubt that the American idea of religious societies is based upon the principle of the ecclesiastical corporation. Such, at all events, would seem to be the opinion of text writers upon the subject.

§ 108. Corporations, religious and others, by the civil law, according to BLACKSTONE, were created by the mere act and voluntary association of their members, provided the

convention was not contrary to law. If it were contrary to law, it was regarded as illicitum collegium-an illegal college or society, and the association was prohibited. The prince's consent was not actually necessary for the foundation of them, although a sharp lookout was exercised, to the end that the founders should not establish any meetings in opposition to the laws of the State. (1 Black. Com., 472.)

§ 109. In England, the consent of the sovereign, express or implied, must in all cases, be given to the religious corporation. The king's implied consent is to be found in such corporations as exist by force of the common law, to which former kings are supposed to have given their concurrence; common law being nothing else but custom, arising from the universal agreement of the whole community. The king's consent is also presumed in cases of such ecclesiastical corporations as have existed as corporations, time whereof the memory of man runneth not to the contrary, and they are therefore looked upon in law to be well created. (Ib., 473.)

§ 110. In the United States, corporations of all kinds, including of course religious corporations, are created by authority of the legislature, and not otherwise. Sometimes religious societies are incorporated here by special charters, but more frequently, under general incorporating laws. There are several religious corporations, however, existing in this country, which owe their origin, under the colony administration, to the English crown; and Chancellor KENT thinks there is no doubt that corporations, as well as other private rights and franchises, may also exist in this country by prescription; which presupposes, and is evidence of a grant, where the acts and proceedings on which the presumption is founded, could not have lawfully proceeded from any other source. There are but few cases here, however, where legislative authority cannot be shown and pro