dissenting from the opinion of the majority of THE COURT. DELIVERED THE FOLLOWING OPINION:
As said by appellants’ attorneys in their brief, this case involves “ no question concerning the identity of separate bodies, each claiming to be the true succession of the body known as the Third or Walnut Street Presbyterian Church, nor any question of ultimate title to the church property. Neither is there a question of apportionment according to numbers under our statute.”
But there is a question of the validity of the election, as elders by said church, of B. F. Avery, D. McNaughton, and James A. Leech, and their right to sit in the session of said church, which session has the control and direction of the church edifice.
Unfortunate disturbances haAdng arisen in said church, elder Thomas J. Hackney and deacon B. F. Avery were put under charge, specification, and process, by. the then sitting session; they objected to being tried by this ecclesiastical court as then constituted, but their objections were OAmrruled, and, before the day for their trial was fixed, the presbytery met at Louisville, August 30th, 1865.
*364McNaughton made a representation to this presbytery accompanied with the petition of thirty-five names, claiming to be members of said Walnut Street Church, praying that it should not sanction the employment of Rev. W. T. McElroy as the stated supply to said church, which the session had entered into against their desires. Said petition had previously been presented to the session of the church, and subsequently, and before presented to the presbytery, four other members indorsed it, and these claimed to be a majority of the congregation.
The committee to whom these papers were committed reported that they deemed them “ unsuitable to come before the presbytery, inasmuch as it relates to matters now pending before the session,” which was adopted. At the session of the synod held at Louisville, October 13th, 1865, McNaughton, by a paper styled by him a petition, presented to it the fact that a petition signed by thirty-five members had been presented to the church session August 23d, praying for a dissolution of the relation of stated supply with Rev. Mr. McElroy at the expiration of his then current engagement in October, 1865, and that the session having refused to act thereon, he had represented it to the presbytery, which had deemed it unsuitable to come before them ; that he had subsequently notified it of complaint against this decision and assigned the cause; but that, believing the time of synod would be taken up with more important matters, he had determined to present, instead thereof, his memorial of facts, and refers to an accompanying petition, signed, as he says, by forty-one members of said congregation, asking redress and praying for the appointment of a commission to investigate the condition of the congregation, hear the complaints and testimony of all parties, and to take such other action as in the wisdom of the synod *365it shall deem best to prevent the destruction and promote the edification of the congregation.
Hackney and Avery both presented papers setting forth their grievances, which they style “ complaint and appeal,” and wind up by asking a commission to adjudicate their case and to convene a meeting of the congregation to elect new elders. These two papers seem to have been referred to the judiciary committee, but were afterwards, on its motion, transferred to the special committee in possession of McNaughton’s papers. The committee made an adverse report, but the, synod adopted as a substitute for it a resolution appointing Rev. J. L. McKee, S. K. Wilson, J. O. Young, R. Knott, and W. Garvin, as a committee to visit the said congregation, with power to call a congregational meeting for the purpose of electing additional ruling elders, calling a pastor, or choosing a stated supply, and doing such other business as a congregation may be competent to, and with a direction that “ the session, when it shall have been constituted as above provided for, shall proceed, at as early a day as practicable, to adjudicate all the cases now pending in that congregation
Pursuant to a notice by this committee, a portion of the members of said congregation, claiming to be a majority, did afterward elect as elders Avery, McNaughton, and James A. Leech, who were ordained and installed ; also McPherson, who was neither ordained nor installed. These, together with Elder Hackney, proposed a joint session with Elders Watson and Gault, who had been acting as the old session, but who refused to recognize these as constituting any part of the session, or being at all office-bearers of said church, save Elder Hackney, who had been suspended, during his trial, from the privilege of acting as such. These *366four, claiming to be a majority of the church session, ordered the trustees and session to open the church house for worship at stated times, designated the minister to officiate, which they refused to do; hence this suit was brought to compel the opening of said house for worship, under the direction of said session, constituted in part of these elders, and to open it to all the congregation. During the pendency of this litigation, and before a final decree, the general assembly of the Presbyterian Church of the United States met at St. Louis, and, on May 30, 1866, declared that McNaughton, Avery, and Leech are to be recognized and acknowledged as ruling elders in said church, and all church courts and pastors subject to, or under the care of, this assembly, are solemnly enjoined to respect and maintain their authority as such.
It is contended by one party in the church that these proceedings by the sjniod to elect elders, and the recognition of their being duly elected and qualified by the general assembly, are contrary to the constitution and form, of government of the Presbyterian Church, and therefore null and void; while the other side contend that the action of both the synod and the general assembly are authorized by the fundamental laws of the church, and are valid.
The theories of these respective parties have been maintained by the ablest divines of the church, and with marked and signal ability.
The one theory is, that the higher church courts can only deal with cases that come up regularly from the lower courts by appeal, complaint, reference, or review of their records, &c.; that it is a government of fixed laws, and that the general assembly has only delegated authority; that to each tribunal is allotted its power *367and jurisdiction, and it can only interfere with the proceedings of inferior jurisdictions in one of the modes pointed out; and some liken it to the Constitution of the United States.
The other theory claims, that neither the assembly nor any of the inferior church courts derive their powers from the constitution, churches, presbyteries, or synods, but assert that all church power is of the Lord Jesus Christ; and every church court, existing- by divine authority, derives its power from Him, and not from the constitution or any church court; and they argue that the language of the constitution teaches this, not by way of granting, but of declaring, the power in each, as that “ the church session have power,” not that it shall have power. “Presbytery has power;” “The synod has power;” “To the general assembly also belongs the power not that these shall have power. It is argued, therefore, that the church constitution restricts the exercise of power inherent in every church judicatory, whilst the Constitution of the United States contains only grants of power by the people to the national government, hence that they are totally unlike. This theory asserts that the session has jurisdiction over a single church or congregation; that presbytery has an extended jurisdiction over a number of churches, and concurrent original jurisdiction with such session over its immediate church; that synod has a still more extended jurisdiction over a number of presbyteries, and concurrent original jurisdiction with the presbytery and each session over each individual church; that the general assembly is the aggregate of all the individual church presbyteries and synods, and has jurisdiction over all the synods, and concurrent original jurisdiction with each synod, presbytery, and session, down to each individual church.
*368And to establish this, they invoke the history, powers, precedents, and teachings of the mother church of Scotland, and many precedents and teachings in the history of the American Presbyterian Church.
And they also found it upon chapter 12, “Form of Government,” section 1: “ The general assembly shall represent in one body all the particular churches of this denomina.tion.”
“ Sec. 4. The general assembly shall receive and issue all appeals and references which may be brought before them from the inferior jurisdictions. They shall review the record of every synod, and approve or censure them.
“ Sec. 5. To the general assembly also belongs the power of deciding in all controversies respecting doctrine and discipline, of reproving, of warning, or bearing testimony against error in doctrine, immorality in practice, in any church, presbytery, or synod, * * * * of suppressing schismatical contentions and disputations, and in general of recommending and attempting reformation of manners, and the promotion of charity, truth, and holiness thi'oughout all the churches under their care.’’''
It is contended that the fourth section declares appellate jurisdiction in the general assembly, and the power to review the action of inferior judicatories, and that said fifth section fully declares original jurisdiction commensurate with the whole church and with each individual church, and their respective wants and necessities. The question whether these elders were elected strictly according to the constitution, discipline, and customs of the Presbyterian Church, is therefore one of strictly nice ecclesiastical law, and one upon which the ablest divines and judges of their ecclesiastical courts have differed; and starting, as they do, from different stand-points and premises, have sustained their respective sides with *369cogent arguments, fortified by imposing historical facts and church authority, scattered along the pathway of more than two centuries. The churches of the United States, unlike those of most other nations, are mere voluntary associations, with self-imposed governments, rules, and restrictiohs; all have their own voluntarily selected church tribunals and judicatories, and, like the civil governments of the American States, each has an ultimate final tribunal, from which no appeal can be prosecuted, because there is no higher power to appeal to; and, like the civil tribunals, these final courts must expound and determine their own jurisdiction as a part of the laws of their church; and, when so determined, on simply and purely ecclesiastical questions, the civil courts must take their expounding as final, conclusive, and binding.
By the fundamental rules and discipline of the Presbyterian Church the qualifications, eligibility, and manner of appointment of licensures, pastors, bishops, and commissioners, are as well defined as those of elders. If a civil tribunal can adjudicate as to the regularity of the appointment of an elder, it is not perceived why it may not do so as to any other of the above named office-bearers, and thus in one way and another all their appointments would constantly be subject to the review of the civil tribunal which may have neither the inclination nor opportunity of investigating the church law, nor indeed may be educated in it.
If, as contended by appellants, the proceedings of the inferior judicatories are binding until reversed by a superior one, and, therefore, the judgment of the presbytery deciding that it had no jurisdiction, because the matter was still pending before the session, was final until re*370versed, why is not the subsequent proceeding of the synod appointing the committee to call a congregational meeting to elect elders also binding until reversed? And which, instead of being censured and reversed or repealed by the general assembly, has been approved and confirmed by it.
There is an essential difference in the very foundation announcement between this church government and our civil institutions. In the former, the powers of government are not partitioned among three separate bodies of magistrates as in the latter; in the first the executive, legislative, and judicial functions are all vested in the same tribunal, whilst in the last, these are confided to three separate bodies, with an injunction that the powers of the one should not be exercised by the others, either jointly or separately.
As said in chapter 7, section 1, of the Presbyterian Discipline, “ in all governments conducted by men wrong-may be done from ignorance, from prejudice, from malice, or from other causes; and to prevent this wrong is one great design of superior judicatories, and that there must be a last resort, beyond which there is no appeal.” Any other doctrine is destructive of all law, order, and government, either in church or State.
It may be said that the supreme court of a State or church may err and may do unconstitutional things; but what other tribunal can undo these things ? Can an inferior judicatory, either in State or church, decide that the supreme judicatory has transcended its bounds and usurped a jurisdiction? Who is to determine the jurisdiction of a supreme and final court but its own body ?
In Gorham vs. Lucket (6 B. Mon., 146), this court reversed the order of the Franklin - county court removing Gorham as jailer and appointing Lucket to the office, *371and directed the county court to set aside the orders of dismissal and appointment.
The county court insisted that their acts in removing and appointing the jailer .were, not judicial, but executive, and that, therefore, this court had no jurisdiction of the case, and that they were not bound by its decision, and should not obey its orders.
On motion in this court a summons was issued against the county court justices te show why they had not carried into effect the mandate of this court; and on trial, same book, 641, it said:
“ It is the beauty of our system of government that all classes are subject to the authority of the laws, as expounded by the court of last resort, as well those who are clothed with the judicial ermine or the robe of executive power, as the humblest citizen — all owe obedience to its mandates, and due obedience may be enforced against all.”
It also said: “Who is to determine whether it had or had not jurisdiction, this court or the county court? If the latter, then the order of things should be reversed, and appeals hereafter taken from this court to the county court.”
Again it said: “ This court, <ts well as all others, must decide upon its own jurisdiction over cases brought before it, as well as upon the merits of the controversy, and its decision upon one or the other is final and conclusive (except when appeals may be taken to the supreme court of the United States). In deciding upon either, it may, and doubtless does, often err, as no human tribunal is exempt from error.” .
But the judges must decide according to the dictates' of their judgment and conscience. These remarks jfi tlyeir moral scope are generally applicable to ecclesiastical tribunals. V *
*372This church was represented in the synod that appointed the committee by one of the old session, and he there entered his objections, and the synod determined to appoint a committee. He notified an appeal, but it was not prosecuted in the general assembly; therefore the synod’s decision was not reversed, but remains in full force. The parties had an opportunity to be represented in the general assembly. The jurisdiction of the general assembly to declare as to these elders was considered and discussed, and a decision rendered.
And in Ableman vs. Booth, and United States vs. Booth (21 How., 516), wall be found a case in which the supreme court of Wisconsin decided a statute of the United States unconstitutional, and also decided the supreme court of the United States had no jurisdiction to review or reverse their decision; yet the supreme court of the United States took jurisdiction and reversed the judgment of the Wisconsin supreme court; and in alluding to this extraordinary decision, it said: “ It has not only reversed and annulled the judgment of the district court of the United States, but it has reversed and annulled the provisions of the Constitution itself, and the act of Congress of 1789, and made the superior and appellate tribunal the inferior and subordinate one.”
Whether the case was regularly or irregularly before the synod, it was there, and the synod determined its jurisdiction, whether as appellate or original it determined its action, and no inferior tribunal could annul it if the principle of inferior and superior jurisdiction is to be regarded; and so, too, of the general assembly.
Comprehensive original jurisdiction is claimed for synods under the last member of section 4, chapter 11, Form of Government, which is as follows :
*373“ The synod has power * * * generally to take such order with respect to the presbyteries, sessions, and people under their care, as may be in conformity with the Word of God and the established rules, and which tend to promote the edification of the church.” This is clearly an original jurisdiction, for the appellate jurisdiction had been provided for in the antecedent part of the section, and under it the synod has any original jurisdiction which is in conformity with either the Word of God or the established rules of the Presbyterian Church; and before we could declare its action null, we should survey the whole range of the vast field of the Divine Word, as well as the rules of the church.
It is conceded that the synod had appellate jurisdiction over every action of the presbytery as it had over the sessions, and that the general assembly has the same jurisdiction over the synod. Thus the jurisdiction of both the synod and general assembly are conceded; but it is insisted that this jurisdiction can only be exercised upon proceedings by appeal.
This statement of the case at once presents to the mind that, at last, this is not so much a.question of jurisdiction and constitutional power in these two bodies, as it is a question of the regularity of their proceedings; and we as a civil court are asked to review and pronounce these proceedings irregular and null, as though we were educated in the rules, laws, and proceedings of the church, and to set up our judgment as to the conformity of these proceedings to the customs and laws of the church in contrast and in opposition to these bodies, constituted as they were of the very ablest men and ministers of the church who had devoted their lives and labor to a study of the church cause, its rules of faith and government.
*374A secular court cannot review the regularity or irregularity of an ecclesiastical court, in matters strictly spiritual, as in the election and ordination of elders or any other office-bearers.
And on a question of jurisdiction upon such proceedings, like the civil courts, they must be permitted to adjudicate for themselves, subject alone to the revisory powers of their own superior judicatories, and finally their supreme court and legislative assembly must, for itself and all its inferior courts, like a supreme civil court, determine its own jurisdiction, as well as the regularity of the proceedings.
The old and new court controversy, so memorable in the history of Kentucky, is also illustrative of this principle.
In that controversy the Legislature, having attempted to repeal and remodel the appellate court, the court determined that it was a constitutional court, beyond the repealing and remodeling powers of the Legislature, decided the enactment unconstitutional and nugatory, and thereby preserved its own existence, which has been not only acquiesced in, but universally approved as sound- constitutional law ; and though some of the inferior courts of the State regarded its decision as unconstitutional and void, it still. maintained its supremacy.
These civil decisions are illustrative of the great principle that the decision of the courts, not only as to matters in controversy, but as to their own jurisdiction, must be regarded and are binding until reviewed by a superior tribunal; and then, when the final and highest tribunal is reached, however erroneous, its decision, it is binding upon the parties, for there must be an ultimate tribunal in every government, else inter*375minable, perpetual litigation and strife must ensue. If presbyteries can review and pronounce the decision of synods and assemblies null, their decisions in turn can' be carried to those higher courts and there reversed, which the presbyteries in turn could pronounce unconstitutional and void, and then again be reversed by the same courts, and thus no ultimate adjudication would be arrived at. This would be, of course, destructive of all government. It is believed, also, that appellate and original jurisdiction in the same tribunal has many illustrations in our civil polity. There is a class of cases, which may be brought and adjudicated in the State courts, but which may be removed to the circuit court of the United States before adjudicated in the circuit court of the State; and if so removed, it stands as an original case in the United States court, but parties may await the adjudication of the State court, and then take it by appeal to the same United States court. By second paragraph of section 2, article 3, United States Constitution, original jurisdiction is given to the supreme court of the United States over certain matters and appellate over others. Original and appellate might have been given over all enumerated subjects, had it been deemed wise to do so.
In 2 Duvall, 352, in ex parte O. S. Tenney, this court held that a practicing attorney by going into the rebellion, and having returned and taken the amnesty oath prescribed by the President of the United States, did not by reason thereof cease to be an attorney, nor forfeit the right to practice his profession. The circuit court had previously refused to admit him because of disqualification. Now, had he gone to another State where our attorneys are allowed to practice, and offered to do so, and the question had been raised against him, should the courts of *376such State determine his right by the judgment of the circuit or the appellate court? On the simple isolated question whether he was a qualified practitioner in Kentucky, can there be any doubt but that the decision of this court should prevail over that of the circuit court? yet the latter was not reversed. And can there be any doubt that Mr. Tenney could have brought up the decision of the circuit court for revision? Had Mr. Tenney been met with the argument that the decision against him in the circuit court was still unreversed and unappealed from, and that this court had only appellate and not original jurisdiction, he would have replied that the appellate and highest court of my State has decided that it had original jurisdiction, and that I was not disqualified from the practice of my profession. Which argument should the court of a sister State have yielded to ? For certainly none will contend that it would go into an examination to see whether this court had or had not original jurisdiction. And was not the decision of this court as authoritative as if it had been made upon an appeal from the circuit court’s judgment against him?
Or should an appeal be taken from quarterly courts to, and adjudicated by, this court, should any of the inferior or intermediate courts be allowed to disregard its decision because they might deem this court without jurisdiction, because the appeal was not presented first to the circuit or common pleas court.
As this is purely an ecclesiastical appointment, however irregular or unjust, it is beyond the power of secular courts to relieve against it; for, as said by this court in Shannon et al. vs. Frost et al., 3 B. Monroe, 261, “Self-doomed to the uncontrolled will of a majority of a church selected by themselves, they cannot obtain redress in this forum;” so these parties, self-doomed to the unlimited *377and omnipotent powers of their ecclesiastical courts, they can obtain no redress here. If it be said the written constitution' of this church makes a contract between its members, one of the stipulations of that contract is, that this church has a final tribunal from which there is no appeal, but that its decision is to be regarded as conclusive, and still they are not relieved from this correct and sound principle, that by their voluntary consent they have submitted all ecclesiastical questions to this forum, and that the civil tribunals carrying out this' self-imposed obligation, will take as conclusive the decisions of the church courts on all such questions.
I have not alluded to the subsequent proceedings of the newly-organized synod at Henderson, after its disruption, simply because it was a schismatical body.
The following are referred to as illustrative and sanctioning authorities for these views :
In Shannon vs. Frost, 3 B. M., this court adjudicated upon a case where a majority of the Baptist Church had expelled a minority without charges and without trial, and which also involved their property rights in and to the usé of the church edifice, and on an appeal by this minority to the civil courts to protect them in their property rights, this court said:
“ Whether right or wrong, the act of excommunication must, as to the fact of membership, be law to this court.”
The case of Gibson vs. Armstrong, 7 B. Mon., 481, was one growing out of the disruption of the Methodist Church in 1844; the plaintiff sought to get the church property, based upon the unconstitutional division of the church; the defendants relied upon the division for their protection to it.
This court said: “ It is for the authorities of the church, in the first instance, to judge of an infraction of its laws, and *378to determine whether the ecclesiastical jurisdiction belonging to any particular body or functionary of the association had been forfeited-by such infraction. * *
The party setting up a claim on the ground of such alleged invalidity, should at least plant itself upon some opposing act or judgment of some recognized organ or body in the church having the authority to act or to judge in the premises.”
Again it said:
“ There would seem to be due from the tribunals of the civil government to those of the church at least so much respect as to require that the acts done by the latter, in the name of the church, should be deemed valid under its law, and that the defendant’s right should be determined accordingly, until those rights were reviewed by the church, or at least until they were conclusively demonstrated to be against its law. * *■ * * * * * If the question of power were doubtful, we should be bound to regard the act of the church, and therefore as effectual.”
And in Deu vs. Bolton (2 Green’s C. R., 322) the court said:
“It belonged to the proper judicatories of the church to decide who are the spiritual officers of any particular congregation subject to their dominion; that the statute having vested the office of trustees in such spiritual officers, without any further designation, the court was bound to respect their decision; and that to determine the question who were legally such trustees, it had only to ascertain who had been constituted such officers, by the governing power of the church, according to its own rules.”
And this was approved by the supreme court of New Jersey, in the American Primitive Society vs. Pellings et al. (4 Zabriskie, 659). In the German Reform Churches vs. *379Scibert (3 Barr, 291) the supreme court of Pennsylvania said:
“ The decisions -of ecclesiastical tribunals, like every other judicial tribunal, are final, as they are the judges of'what constituted an offense against the word of God and the discipline of the church; any other than those courts must be incompetent judges of matters of faith, discipline, and doctrine ; and civil courts, if they should be so unwise as to attempt to supervise their judgment on matters lühich come within their jurisdiction, would only in~ volve themselves in a sea of uncertainty and doubt, which would do anything but improve religion and good morals.”
Nothing is perceived in this case to authorize a departure from these wise and conservative principles, which at once secures and preserves the freedom of religious liberty and independence of the church courts, in all purely spiritual matters, from the control of temporal courts or the baneful influence of partisan contest. Nor can the laws governing the rights of Baptist and Methodist be different from that regulating all other churches.
It is believed that not a single case referred to by the majority in anywise involves the legality of an ecclesiastical appointment by the regular church. In Sutter vs. The Trustees of the Dutch Reform Church (6 Wright, 503), referred to by appellants’ counsel, a majority of the congregation had voted to call as their paster a minister of another entirely different church; this call the classis of the church would not sanction, but rejected it, as was their right, and directed the consistory to proceed to call a pastor; whereupon a large number of dissenters from the decision called a meeting for the purpose of dissolving their connection with the church, and, by subsequent proceeding, actually became schismatics. The court said: “We have said nothing about the reason why the-classis *380refused to admit a strange minister into their denomination as the minister, because is is everywhere admitted that their reasons, so far as they are theological, are not to be reviewed by us.”
Commonwealth vs. Green (4 Whar., 599) was a case where, on the convocation of the general assembly of the Presbyterian Church, the moderator of the preceding assembly presiding temporarily, according to custom and their constitution, for the purpose of organization, and whilst in process of organization, by his instrumentality, a provisional moderator was suddenly chosen by a minority of those entitled to vote, including the exscinded commissionei’s. The question on the motion to elect was put by the mover, not by the presiding moderator, after which the seceding -party elected a permanent moderator and withdrew. The assembly then declared, as to them, that they “ be, and are hereby declared to be, out of the ecclesiastical connection of the Presbyterian Church of the United States; and that they are not, in form or fact, an integral part of said church.”
By an act of the Pennsylvania Legislature, a corporation had been created by the designation of the Trustees of the General Assembly, by virtue of which the general assembly of the Presbyterian Church had a right to elect certain trustees in the corporation. These -seceders having organized a general assembly, elected a trustee, and caused a quo warranto■ to be issued to try the title to the office against the trustee appointed by the old general assembly. This being the issue, we can understand what the court decided, and some extracts will place the whole matter properly before the legal mind.
The court said:
“ Could the synods, however, be dissolved by a legislative act ? I know not how they could have been *381legitimately dissolved by any other. The assembly is a homogeneous body, uniting in itself without separation of parts the legislative, executive, and judicial functions of government; and its acts are referable to the one or the other of them, according to the capacity in which it sat when they were performed.”
Again: “ But what matters it whether the facts were actually what the assembly supposed they would be ? If that body proceeded in good faith, the validity of enactments cannot depend on the justness of its conclusions. We have, as already remarked, no authority to rejudge its judgments on their merits j * * * * this was predicated of judicial jurisdiction, but the principle is necessarily as applicable to jurisdiction for legislative purposes.” •
It is, therefore, very clear the court referred said resolution to the legislative function of the assembly. As presbyteries, synods, and the general assembly all have legislative as well as judicial power, and as the fundamental rules of the church do not designate how congregational meetings to elect elders are to be called, the appointment of this committee by the synod was clearly within its legislative jurisdiction, and as a legislative act, I know of no power in a temporal court to declare it null, and a decision that it could not be done in the exercise of judicial functions does not meet the case, nor show that the power was unconstitutionally exercised.
And the approval and affirmance of the election of these elders, by the general assembly, can as easily be referred to its legislative as judicial power, and be regarded in the light of a legalizing enactment, so common in our civil government. If these actings come within either the legislative, executive, or judicial functions of these bodies, by what authority, and how, can this court fix the particular function exercised, and then declare it did not authorize the act done ?
*382It is all sufficient if it comes within either; and if it pertains to spiritual matters and appointment of officers in the church, its action is binding and conclusive on civil courts. Appeal indeed presupposes adjudication, and because the sessions had not adjudicated seems to be the reason why the presbytery thought the matter improperly brought before it. But were it a case pending before a civil court, in which the judge being implicated, he would not either grant the prayer of the petitioners nor desist from adjudication, and whilst in this condition the accused should appeal to the Legislature to give them another tribunal or change of venue or some other remedy, and it should constitute other judges to try the cause, would any one suppose this would be the exercise of appellate judicial jurisdiction, and therefore void? Much less should it be so where the same tribunal has appellate and original judicial and legislative power combined.
The case of Smith vs. Nelson (18 Vermont, 511) has been referred to by appellants and the court, yet I presume the majority does not mean to regard it as authoritative, unless they are prepared to abandon all that this court has heretofore decided. They cannot, as will be seen from the following extracts:
“ In England the ecclesiastical law and courts are established legitimate authority, and become a part of the law of the land. * * * * * * *
“In this State the case is wholly different. We have no religious establishment, no ecclesiastical law or courts established by authority..
“All their lawrs are wanting in this essential requisite to give them authority, that they are not prescribed by the supreme power in a State. And though they may form, constitutions, enact canons, laws, or ordinances, estab*383lish courts, or make any decisions, decrees, or judgments, yet they can have only a voluntary obedience, cannot effect any civil rights, immunities, or contracts, or alter or dissolve any relations or obligations arising from contract. When their proceedings are to be examined by ordinary tribunals of justice, their power is a phantom, and they can receive no other consideration than the regulations of any other voluntary association, formed for trifling or grave and important purposes.
“Obedience to the requisitions of any ecclesiastical societies may be required, under the penalty of spiritual censures; but this is the only penalty incurred by disobedience ; and whether one submits to or defies the proceedings of an ecclesiastical court, or any censures passed by them, depends on his conviction of the regularity or irregularity of their proceedings. In short, they can only affect the conscience of the individual; how far they affect this, he must be the judge. * * * * In a court of justice, sworn to administer justice according to lato, I cannot recognize any constitution, laxos, ordinances, or sentences of any ecclesiastical tribunal, or of any voluntai'y society, as having any efficacy or power over the civil rights,, immunities, or contracts of individuals.”
Thus putting the constitution, laws, usages, courts, and tribunals of a great body of Christians, with their learned divines and doctors of divinity, elders, pastors, bishops, and professors, and presbyteries and synods and general assembly, with millions of dollars’ worth of church property, all upon a par with the voluntary association of an insignificant base-ball club; and, on these premises, proceeded to disregard the action of presbytery and synod in excommunicating certain ministers.
But in this case all this was done to uphold the popular rights and wishes of a congregation, whilst in this State *384it is quoted as authority in derogation of the popular rights of the congregation.
But I heartily approve of some of the utterances of the court in the case relative to the free and impartial character which should attend all courts, as follows:
To any and every court there must be actor reus and judex. If the judge become actor or reus, it is plain there can be no impartial or regular judgment. In every trial for an offense, however trivial, the person accused is entitled to an impartial trial, by unbiased judges, who have no hostility or prejudice against him, and whose judgment is unfettered by previous conceived opinions. * * * * * I have no hesitation in saying that these proceedings, by which the minority transferred themselves into a majority, consisting of the persons against whose sitting in that case there were such strong and unanswerable objections, vitiate and render void the proceedings of the presbytery of Cambridge in relation to Dr. BullionsIn Day vs. Savage, Hob., 87, Lord Chief Justice Hobart declared an act of Parliament made against natural equity as to make a man a judge in his own case void — because this would disrobe the court of all dignity, render the introduction of evidence a farce, make its judgment a solemn mockery, and its punishment an arbitrary injustice.
These remarks apply, in all their length and breadth, to the session court as constituted with elders Watson and Gault, and moderated by Mr. McElroy. There is, however, a striking inconsistency in this Vermont decision, in repudiating the English and Scottish authorities in relation to the excommunicated congregation, but adopting these as to the excommunicated ministers, because ' there the civil courts claimed and exercised the jurisdiction to restore an excommunicated minister, *385but not as to a congregation. But I repudiate the whole of this decision as unsustained by American authority, in conflict with our own courts, and subversive of religious liberty, subjecting all the decisions of the spiritual courts and actings of their tribunals to review by the civil courts, and putting all their ecclesiastical rights at the disposal of the civil tribunals. Pai'taking, as it does, of the transcendentalism of that extremely radical and puritanical people, I regard it as an unreliable and dangerous authority.
But this Vermont case was expressly repudiated by the supreme court of New York, in Robertson vs. Bullions (9 Barr, S. C. R., 78), in which the very same matters came under review, and the appellee being the same Dr. Bullions; and after so doing, at page 134, after reviewing all the authorities through a labored opinion, the court said: “ I do not see how we can look beyond the decision of the synod. All the authorities agree that the civil courts cannot, upon the merits, overhaul the decisions of ecclesiastical judicatories in matters properly within their province. Dr. Bullions himself took the case to the synod, and the deposition of a minister is purely an ecclesiastical matter, though the effect of that deposition upon civil rights is quite another thing.”
So in this case the appointment of elders was purely an ecclesiastical matter, but the effect of their appointment on civil rights, when the title to the church property shall come to be tried, may be quite another thing.
In all these cases no question as to the appointment of church officers by the old and regular organization was raised of reviewed; and if there be such a case within all the range of American judicature, it has not been referred to nor found.
*386But in some of them the question of deposing officers and ministers did come under review; and the Vermont case has the distinguished honor of being alone in a disregard of the action and determination of the spiritual tribunals.
The appointment of trustees in a civil corporation, which in some instances have been involved, is a very different thing from the appointment to a purely ecclesiastical office, as that of elder; in the one it must be done according to the act of incorporation, and of this the civil courts must judge; in the other, it must be done under the church law, and of this the spiritual courts must judge.
If it were pennitted to secular courts to review the decisions and legislative acts of ecclesiastical bodies, there would be much of error and seeming injustice found in these proceedings.
Although the unfortunate difficulties of this congregation may have been previously germinating, yet the first tangible data is to be found in the church meeting of March 22d, 1865, which had been called by the appellants as a session to elect a pastor, and in which they had recommended the election of Rev. W. T, McElroy, but at which meeting the church refused, by an equal vote, to call him as their pastor, several not voting either way, though he had been acting as stated supply of this church for several years. Notwithstanding which action of the church members, the session, four days thereafter, determined to renew his employment as stated supply, and, contrary to the laws and usages of the church, renewed it for a year, when it can only do so by the consent of the presbytery from one of its meetings to another, which is every six months; thus both the session and minister violating the laws of the church, and this in *387utter disregard of both" the rights and feelings of a large portion of the congregation, if, indeed, not a majority.
The presbytery at its next meeting approved of this employment until its following meeting.
On the second Sabbath after the church had refused to call him as their pastor, Mr. McElroy delivered a sermon in a spirit of harsh censure of that portion of his congregation adverse, for their conduct toward him, which gave great dissatisfaction and caused a large number to absent themselves from the church at the future appointed times of worship.
July 25th, 1865, D. McNaughton addressed to the session a letter recounting the untoward circumstances by which the church seemed surrounded, and suggested that a full meeting be called, and their sentiments ascertained, otherwise he would consider himself justified in withholding any other payments on his subscription.
To this the session, August 2d, 1865, made a not very conciliatory reply, and declined to call a méeting of the congregation.
Some twenty days thereafter some thirty-five members, including two deacons, petitioned the session, asking that it would not renew the engagement with Mr. McElroy as their stated supply, after the expiration of the current six months; but should it determine otherwise, then that the delegate of the session to the presbytery be instructed to make known their objections to it.
Four other members joined in this petition, August 29th.
The thirty-five original petitioners, however, claim to, then, be a majority of the surviving and acting members of this congregation.
And in the following October, forty-one members petitioned the synod, asking that a congregational meeting *388be ordered by it to elect additional elders. After taking from the list of members furnished by the defendants and Mr. McElroy in his deposition those who had removed, such as had ceased to attend and co-operate for years, those then dead, and those who had joined other churches, a clear majority of the congregation were with the appellees.
McNaughton replied to the session’s response some three days after its date.
The session took the initiatory steps which resulted in charges and specifications at its own instance against B. F. Avery, August 2d, and which was formally adopted by it twenty-two days thereafter; and at the same meeting of the session it preferred charges and specifications against ruling Elder Hackney, all growing out of and connected with these same matters.
September 13th, 1865, the session, on motion of Elder Watson, suspended Elder Hackney from the privilege of deliberating or voting as a member of their body, in any case, until the final determination of his trial, whilst at the same time it failed to notice or in any manner to act upon charges preferred by two deacons of the church against Elder Watson. It also set Elder Hackney’s trial ten days later than Mr. Avery’s, as though determined to' try him before Elder Hackney could be relieved, even by a judgment of acquittal, so as to sit upon his case. Both Avery and Hackney objected to being tried by this court, as then constituted, with Elders Watson and Gault, and Mr. McElroy as clerk and moderator, by two written protests, the first of which was tabled and the other ruled „out of order. In these protests various reasons are assigned, prominently among which were the personal connection which these two elders and Mr. McElroy had had with the causes of difficulty from its inception, and *389because they were virtually trying the legality and purity of their own conduct; and being so connected and personally interested that in the very nature of things they could not make an impartial, unbiased tribunal, and because they had, in various specified ways, and on several occasions, manifested a great want of impartial, unbiased action.
It is most apparent that these church difficulties sprang out of the dissatisfaction of a majority of the congregation with the ministrations of Mr. McElroy, and with the action of the session in declaring him a stated supply in ¿itter disregard of their wishes, and a persistent refusal to call a congregational meeting, or in any other mode to consult with the church members aggregately, and the entire refusal to attempt to procure the ministrations of any other preacher by the session.
There were, therefore, many potent and prudential reasons why neither Elders Watson nor Gault should have persisted in sitting as a church court to adjudicate the conduct of others so intimately connected with their own, and why Mr. McElroy should not have persisted in sitting as moderator, virtually in his own case, especially as section 3, chapter 9, Form of Government, authorizes a session to call some other minister than their own pastor, when from any cause it is improper for him to moderate their session.
The persistent presiding of Mr. McElroy, and the continued adjudication of Elders Watson and Gault, in matters so seriously affecting their own conduct, notwithstanding the protestations of those under charges, manifests such an indelicacy, if not partiality and prejudice, as to impress the candid, impartial mind, that they were not possessed with that elevated, candid, impartial, free, and just sentiment and condition of mind and feel*390ing so essential to the pure and impartial administration of law, either sacred or secular, and which should ever characterize courts, whether civil or ecclesiastical; and this impression is not in the least relieved from the circumstance of postponing Elder Hackney’s trial subsequent to that of Avery’s, nor in debarring him from sitting on Avery’s trial, whilst they fail to put Elder Watson under- process, or to debar him from the same privileges, notwithstanding he was then under charges preferred by two deacons, nor in anywise to notice these charges.
Even-handed, exalted justice, the essence of Deity himself, meets out to every one the same measure under like circumstances; therefore, if it was proper to deprive Elder Hackney of the right to adjudicate, because he was under charges, this deprivation should have been extended to Elder Watson for the same'reasons.
By section 2, chapter 9, Form of Government of the Church, it is provided, “that two elders, if there be as many in the congregation, with the pastor, shall be necessary to constitute a quorum;” and as there were four elders, one not then acting, another under charges, may have been the reason why Watson was not put under process, nor the charges against him noticed, as Elder Gault would have alone remained, and could not constitute a quorum; but this only still manifests the predetermination and prejudging of those under charges, and rather strengthens than weakens the unfavorable impression of the other matters.
It is quite apparent that a suffering majority of the church, instead of being relieved from their troubles and burdens by their church session, was most despotically ignored, and their rights and feelings disregarded by two elders, who, by their own conduct and manage*391ment, became possessed with the entire ecclesiastical authority of the session court. The congregation sought a redress of its grievances and the vindication of its rights in no revolutionary manner, but by a respectful appeal to the instinctive justice and powers of the church tribunal. A more extraordinary case, strongly demanding the interposition, in some manner, of some church authority, inspired by a love of even-handed justice, has rarely happened, and never within our observation.
The preacher could not be sustained without salary; the session could look only to the members to contribute this, and, whilst they thus despotically substituted their own preferences of a minister, unacceptable, if not odious, to a very large portion, if not to a majority, of the congregation, why should they look to those member’s for contribution, or why complain if they refused?
In the United States the laity of a church are. not the vassals of its officers; and when an unacceptable and odious minister is foisted upon them, they are under neither a moral nor legal obligation to support him nor to hear him.
The civil laws of this and all our sister States, so far as is known to us, provide for the relief of those charged from being tried, from being adjudged, by either interested or prejudiced or partial tribunals; nor do these await the tardy and expensive and harassing process of appeal, but relieve them at once from the adjudications of such a court.
Whilst the Presbyterian discipline fully recognizes the interest, partiality, prejudice, and wrong, which all men may do whilst sitting as courts, yet it seems to have left with a sense of justice, propriety, and delicacy, the desisting from adjudication when those under charges *392shall object to those trying them, else to relieve by an exercise of original jurisdiction in the superior tribunals.
That those so situated must be entitled to relief without the delay, harassment, expense of being adjudged by such a tribunal; that they may get relief by appeal, will at once strike the moral sense and love of justice of all men everywhere, within or without the church. And, as said by appellants’ witness, Rev. S. R. Wilson, “ the practice of the church has allowed, in extraordinary cases, the passing over of the presbytery, and taking an appeal or complaint directly to the synod against a church session.”
If they could in extraordinary cases exercise this power, why not in extraordinary cases appoint a committee to call a congregational meeting of the members for the purpose of electing additional elders? Especially where both the constitution and discipline of the church is silent as to how and by whom such meetings are to be called > and more especially when a despotic session which has monopolized the powers of the court, refuses the congregation any relief, thus presenting the dernier alternative of continual suffering or relief by some superior power.
The parties charged must be tried by a session court; but those constituting the session were involved in the matter, and upon the plainest principles of natural justice and common honesty disqualified from sitting in the case.
The presbytery had failed to take jurisdiction, either appellate or original, or legislative, or in any manner to grant relief. Could a more extraordinary case for the interposition of synod in some manner be imagined ?
After the synod had appointed the committee, with power to call a meeting of the church to elect additional elders, Messrs. Avery, Crowel, Browning, Ashcroft, Me*393Naughton, Hackney, and Leech, proposed to compromise the difficulty by the session calling a church meeting to elect additional elders, and offering to pay their portion of McElroy’s salary for the current as for the past six months; but with the provision that no effort should be made for his re-engagement, but by the consent of the congregation. This paper is dated November, 1865.
This met with no response from the session; had the session been conscious of the approval of the majority of the congregation,.or had they supposed Mr. McElroy was an acceptable minister to it, or had they been conscious of the delicacy of their own conduct and the justice of their own position, here was an ample opportunity for triumphant vindication. Its non-acceptance affords food for reflection.
Instead of accepting the proposition of November, 1865, the session of December 2d put McNaughton under charges growing out of these same difficulties. Pursuant to a call of the committee- on January 2d, 1866, some thirty-five persons, claiming to then be a majority of the acting members of the church, met in front of the church edifice, and finding the house closed, organized a meeting, adjourned to a neighboring house, and proceeded to elect as ruling elders B. F. Avery, D. McNaughton, D. McPherson, and James A. Leech. This meeting adjourned to meet January 9th, to ordain and install the elders.
McNaughton, who had before been ordained an elder, was at this adjourned meeting installed. Avery and Leech were ordained and installed. McPherson seems not to have been either ordained or installed. It is insisted, that as Avery and McNaughton were under charges by the old session, that they were not eligible, as section 2, chapter 13, Form of Government, provides that “in all cases the persons elected must be male members in full *394communion,” and this may be so; but neither McPherson nor Leech was under disabilities, so that the latter’s ordination and installation, together with Gault of the old session, would have afforded a court not under charges; and had his election been recognized, there would have been a court to try elders Hackney, Watson, Avery, and McNaughton, or had it been desired that Elder Watson should sit, waiving all questions of delicacy, common justice required that Elder Hackney should have been relieved from the disabling resolution of the session, passed at Watson’s instance. Thus, like most violent church, partisan difficulties, both parties have erred and both violated the rules of their church; but the elders, being invested with judicial functions, and having the care and oversight of the congregation, have more responsibility, and are held more rigidly accountable than ordinary members. And it is to be deeply regretted, not only on account of the disastrous consequences to this individual church, but for the cause of Christianity in general, that in an unguarded hour and way, that these ruling elders should have permitted themselves to become implicated in conduct so reprehensible, so indefensible, and so antagonistic to that Christian forbearance and exalted justice and inexhaustive charity, taught by the Master they profess to serve.
By the polity of the Presbyterian Church, the session has the spiritual oversight and care of the congregation. The ruling elders constitute the session; these are elected by the congregation when called for that purpose. It has been the custom of the session to call such meeting at the'instance of the congregation.
But can it be that in this free country, within all. its broad domains, there is a laity under such hopeless, doomed spiritual vassalage, as to have no relief from an *395unjust and despotic session, save through the agency of the very nightmare which broods over their destiny ? Is it possible that the Presbyterian polity has set up an oligarchy as potential and irresponsible as- that of the Mohammedan or Pagan? Is it possible that in all the broad range of superior tribunals, with their almost unlimited jurisdiction, there is no power, judicial or legislative, to relieve a congregation from the incubus of such a session!
And must a laity remain under this doomed and hopeless vassalage until a sense of justice and delicacy shall pervade the session and give them relief? If all this be true, then indeed is the omnipotence of this, the most inferior tribunal of the church, so far as their immediate congregation is concerned, equal to the spiritual head of the Catholic Church, without its learning, dignity, and responsibility, and superior to either presbytery, synod, or general assembly. What other means of relief to a suffering congregation so situated than the appointment of additional ruling elders, and when the session persistently declines to call a meeting, and the presbytery declines to act because the session has not acted, what more appropriate remedy than the apppointment of a committee by a superior tribunal, headed by a divine of distinction and standing in the church, to call a congregational meeting for such purposes?
And when a session, through a long course of conduct, and by a series of acts, worked the spiritual destruction of a congregation, through persistent disregard of the desires and wants of a majority of its members, they assail the action of the spiritual power that relieves the congregation as violative of the church rules, and asks a civil tribunal to so determine. Should the civil court indulge them, save from the clearest and *396most indisputable rules of the civil law, they are bound to do so. And if done, it must be in utter disregard of the action and adjudication of the highest tribunals of the church, and a monstrous injustice and flagrant disregard of popular rights become sanctified in a civil court.
These times are too fraught with rampant, radical, revolutionary ideas to open a door so fraught with danger to all the southern churches and their church property. When the civil courts of their States majr soon receive their appointment from, and be imbued with this rampant radicalism now prevailing in their newly enfranchised political powers', and when these soon to be newly-created courts take cognizance of the ecclesiastical proceedings of the different church tribunals, and pronounce them all unconstitutional, and by a monstrous injustice strip them of their property, they may quote the opinion of the Kentucky court to sustain the monstrous iniquity, not in its genuine and true spirit, but in the important controlling fact that it has recognized the power of a civil court over the heads of the church courts to expound the church constitution. This omnipotent power in the State courts will endanger every church owned by the Methodists previous to their division in 1844, for nearly every church deed was then in the name of the “ Methodist Episcopal Church,” and was not provided for in the plan of division of the bishops, nor settled in the decision of the supreme court of the United States in (16 Howard, 298). Smith vs. Swormstead, but only the book concern.
These courts may take cognizance of the questions growing out of the church property now possessed by the Presbyterians, and under the control of their southern general assembly. And, indeed, if the civil courts *397can determine the constitutional appointment of elders, and declare such null because in conflict with the fundamental law of the church, it is not perceived why they may not review any other action of the church or its tribunals, and pronounce these also in conflict with it, and null, especially when they involve property. But however disastrous such results may be, if it be law, all should submit to it.
I dp not, however, regard it as law, and can but regret that my brethren do. I am satisfied that no exigencies of this case call for the establishment of a precedent so full of danger and disaster to the great interests of the churches of the Southern States. The decision now under review really adjudicates no property rights, but only that one portion of the ruling elders have no right to exclude another portion from consultation and official action, and that the trustees of the church must be governed in opening it for worsnip according to the direction of the session, or a majority of its members, as constituted of all these elders. Believing, as I most earnestly do, that this is a purely unmixed, naked, ecclesiastical question, coming exclusively within the jurisdiction of the spiritual tribunals, and that their action should be received by all civil courts as binding and conclusive, I cannot approve the announcement of the majority.
We have a statute regulating the rights of the parties on the disruption of a Christian congregation, just and wise in its provisions, and to this these parties should be turned without touching the ecclesiastical appointments of the church, or in anywise adjudicating the church law.
If the action of the synod in appointing the committee, and its affirmance by the general assembly, be *398regarded as judicial, they are beyond the control or review of the civil courts. If regarded as legislative, they are not only clearly authorized by the church law, and founded upon the high moral consideration of relieving the majority of the congregation from the unjust, arbitrary, and despotic conduct of its session; but if not, are equally beyond the control of our courts. So in any view the chancellor’s order was right, and should not be reversed.