Presbyterian Congregation v. Johnston

The opinion of the Court was delivered by

Gibson, C. J.

This ejectment is brought in the name of the corporation by a minority of the congregation, who, having withdrawn from its stated worship in the church building, insist that the majority have forfeited their corporate rights by dissolving the connexion of the congregation with the Presbytery of Carlisle, and the primitive General Assembly ; and to understand the grounds on which they have placed the controversy, it is necessary to state the case with its circumstances.

The congregation was formed in 1762; for it was proved at the trial that ministerial supplies were furnished in that year by the Presbytery of Donegal, and subsequently by the Presbytery of Carlisle, under whose care it remained till the late convulsion of the Presbyterian body induced it, while disclaiming all intention to become an independent church, to decline for the present the jurisdiction of the conflicting judicatories. Its pulpit seems not to have been regularly filled till the installation of the Reverend Doctor Cathcart in 1793. Such were its origin and ecclesiastical relations. The property in contest was conveyed by John Penn, Sen. and John Penn, Jun., late proprietaries of the province of Pennsylvania, to George Irwin, William Scott, and Archibald M’Lean, “ in trust for, and as a site for a house of religious worship, and a burial place for the use of the said religious society of English Presbyterians and their successors, in and near the said town of York in the county of York; and in confidence that they, the said George Irwin, William Scott, and Archibald M’Lean, and the survivor of them, their and his heirs and assigns, shall and will permit and suffer the said lot or piece of ground and premises and the buildings thereon hereafter to be erected, to be from time to time, and at all times hereafter, at ,the disposal and under the care, regulation, and management of the said religious society and their successors in and near the town of York aforesaid; and to and for no other use, intent, or purpose whatsoever.” The church seems to have been built shortly afterwards, but it was not finished before the installation of Doctor Cathcart. The congregation obtained a patent of incorporation in 1813, by the style of “ The Trustees of the English Presbyterian Congregation in the borough of York ;” but the legal title of the original trustees has not been conveyed to it, and the corporation is now, what the congregation were before, the party beneficially entitled. It will be perceived therefore that the minority attempt to use the corporate name in order to oust the majority for an.alleged forféiture of their corporate rights, incurred, as it is supposed, by an application of the property to uses differing from those which the founders prescribed.

By the common law he who gives the first possessions to a corporation is the founder of it, and entitled to the rights which the foundership gives. Viner’s Abr. Tit. Corporations H. 1. These consist in visitation, and correction of any misapplication of his bounty to purposes foreign to its original destination. What then was the purpose prescribed by the Messrs. Penn? It was no more than to carry out the generous policy of their ancestor, the founder of the province, who, though rigidly attached to the principles of the society of Friends, was bigoted to no'particular sect; but munificent to all; and’ who left each to apply his gifts to such pious uses as it might think fit. That his descendants followed his example in this instance, is shown by the terms of the trust, which prescribed no form of doctrine or discipline, the beneficiary being described as the English Presbyterian Congregation, evidently to individuate it; and that subjection to a particular assembly, was not a condition of the grant, is proved by the fact that there was at that time no such assembly in America. The conveyance was executed in 1785; and the General Assembly of the American Presbyterian Church was constituted by the synod of New York and Philadelphia in 1788. It may be said that this congregation was'connected with the elements of which the General Assembly was formed, and that it is bound to conform to those subsequent changes to which its representatives in the synod assented. But were the founders, or the subject of their bounty bound by terms to which the founders did not originally assent ? The original terms could not be altered even with their own consent ; for that they are as incompetent as any one else to add to, or take away from them, was ruled in Philips v. Bury, Skin. 513, in which it was agreed that the founder having given statutes to a college, can not alter them unless he has reserved a right to do so. As tests of sectarian denomination and character, therefore, the divisions that have since taken place about the constitution of the .General Assembly must be laid out of the case. The founders foresaw them not; and had they foreseen them, they would have left them to be dealt with by the congregation at its pleasure. The members of the congregation who erected the building may be thought to have had a separate interest of thejr own in the purpose to which it was to be dedicated; but even they cannot be said to have erected it with a view to a particular union, for though it was not finished till after the assembly was constituted, it was begun, and the pecuniary responsibilities incident to the plan were contracted previously. But by the common law, even subsequent contributors have no other right of direction than that which the founder has prescribed; for they come in and give their money on a basis already established, and they can neither add to it nor take any thing from it. If then the Messrs. Penn necessarily gave the ground in contest, subject to the direction of a majority bearing the name of Presbyterians, subsequent contributors with particular views, could not change the destination of it. But though no standard of discipline or faith be prescribed in the conveyance or charter of incorporation, I entirely concur in what Lord Eldon said in the Attorney General v. Pearson, 3 Meriv. Rep. 353, that “ when a house is created for religious worship, and it cannot be discovered what was the nature of the worship intended by it, it must be implied from the usage of the congregation; and that it is the duty of the court to administer the trust in such a.manner as best to establish the usage, considering it as a mattqf of implied contract with the congregation.” I understand by this, that contemporaneous usage is evidence of an implied contract betwixt the founder and the congregation, and consequently of the purpose intended by him; but when, as here, neithér the usage nor the purpose could possibly have existed at the time material to the question, subsequent usage cannot add to that which he intended. I agree with him also, “ that when the members of a congregation become dis-sentient among themselves, it is not in the power of individuals to say, we have changed our opinions, and you who assemble in this place for the purpose of hearing the doctrines and joining in the worship prescribed by the founder, shall no longer enjoy the benefit he intended for you unless you conform to the alterations which have taken place in our opinions.” With all this and much more, I promptly agree when predicated of a congregation adhering as nearly as it can to the principles of its original faith, and not, as in that case, swerving from the tenets of trinitarianism and embracing the hostile tenets of unitarianism. I concede also that subjection to a particular judicatory may be made a fundamental condition of a grant, as it expressly was in Duncan v. The JVinth Presbyterian Congregation, in which the trust was declared to be for “ such congregation of persons as shall belong to the present reformed synod to which the Reverend Robert Annan’s church in. Spruce street belongs”—a case which was ultimately settled by the parties, but in which I differed from some of my brethren who thought the congregation had not lost its property in the trust by putting off its distinctive character and merging itself in the mass of the Presbyterian church. That was a strong case; but it is altogether unlike the present, in which no such condition was expressed or implied. Even without an express condition, it might be a breach of the compact of association for the majority of a congregation to go over, to a sect of a different denomination, though it were different only in name. For instance, the majority of a congregation of seceders could not carry the church property into the Presbyterian connexion, though these two sects have the same standards and plan of government. But this principle is inapplicable to a change of connexion as regards different parts of the same denomination or sect.

Now, since the foundation of this congregation, an event has happened which the founders did not contemplate, and which would not have been provided for, had it been foreseen. This was no less than a dismemberment of the Presbyterian body, not indeed by disorganization of it, or an entire reduction of it to its primitive elements, but by an excision, constitutional though it was, of whole synods with their presbyteries and congregations. There was not merely a secession of particles, leaving the original mass entire, but the original mass was split into two fragments of nearly equal magnitude; and though it was held by this court, in the Commonwealth v. Green, 4 Whart. Rep. 531, that the party which happened to be in office Dy means of its numerical superiority at the time of the division, was that which was entitled to represent it, and perform the functions of the original body, it was not because the minority were thought to be any thing else than Presbyterians, but because a popular body is known only by its government or head. That they differed from the majority in doctrine or discipline, was not pretended, though it was alleged that they did not maintain the scriptural warrant of ruling elders. But the difference in this respect had been tolerated if not sanctioned by the Assembly itself, which, with full knowledge of it, had allowed the heterodox synods to grow up as part of the church; and it could not, therefore, have been viewed as radical or essential. We were called on, however, to pass, not on a question of heresy, for we would have been incompetent to decide it, but on the regularity of the meeting at which the trustees were chosen. I mention this to show that we did not determine that the excision was expurgation and not division. Indeed, the measure would seem to have been as decisively revolutionary, as would be an exclusion of particular states from the federal union for the adoption of an anti-republican form of government. The excluded synods, gathering to themselves the disaffected in other quarters of the church, formed themselves into a distinct body, governed by a supreme judicatory, so like its fellow as to pass for its twin brother, and even to lay claim to the succession. That the old school party succeeded to the privileges and property of the Assembly, was not because it was more Presbyterian than the other, but because it was stronger; for had it been the weaker, it would have been the party excluded, and the new school party, exercising the government as it then had done, would have succeeded in its stead, and thus the doctrine pressed upon us, would have made title to church property the sport of accident. In that event, an attempt to deprive the old school congregations of their churches, for an act of the majority, in withdrawing from the jurisdiction of the assembly, would have loaded the new school party with such a weight of popular odium as would have sunk it. Here then was the original mass divided into two parts of nearly equal magnitude and similar structure; and what was a congregation in the predicament of the one before us to do ? It surely was not bound to follow the party which was successful in the conflict, merely because superiority of numbers had given it the victory.

Before the American revolution, the church of England in America, as it was called, was annexed-to the diocess of the Bishop of London; and it will scarce be pretended that, after its separation from it as a natural, but not inevitable consequence of our political independence, a single American parishioner might have recovered the church with its parsonage and glebe, when there was any, from his dissentient brethren, by insisting on a continuance of the ancient connexion. Public opinion would not have borne it. Yet every Episcopal congregation in America had been founded on the basis of that connexion, and our independence in other matters had raised no unanswerable objection to its permanence, especially, after the Bishop of London had procuréd an act of Parliament to dispense with engagements by the American Episcopal clergy that would have interfered with their political allegiance. It is true that the separation was effected with the assent of the mother church; but it was the parishioner here, and not the church abroad, whose consent was necessary to a dissolution, of his ecclesiastical relation, in order to impair his civil rights. Besides, the consent of the mother church was only formal, and given to the separation as to a measure which she could not prevent. She indeed conferred the episcopate, and thus secured a continuance of the apostolic succession to the American Episcopal church; but that might have been had from the nonjuring bishops in Scotland, as it was by Doctor Seabury, or from the Danish Episcopal church, which indeed offered it on terms of signing the thirty-nine articles of the church of England, with the exception of their political parts. Had the offer been accepted, there would have been an adverse withdrawal of ecclesiastical allegiance — in principle the very case before us — and it will not be pretended that the majority of an Episcopal congregation here would not have been at liberty, in that event, to form a connexion with an independent Episcopal church government, without forfeiting the interest of each in the church property.

The revolution led to ho severance of the Presbyterian church in America from the church of Scotland, for there had been neither connexion nor correspondence between them, and no illustration of the principle proposed, can be had from that quarter; but might not one of these very congregations which were severed from the primitive General Assembly here, have formed a new connexion when driven from the old one, without forfeiting its interest in the church property? or could a strictly orthodox minority strip them of it by organizing themselves as a congregation, on strictly Presbyterian principles, and regaining the former connexion? To cut off the dissenters in the first instance, and to confiscate their property for what was declared to be a heresy for the first time, would be an act of power, not of justice. It will not be denied that they were Presbyterian in doctrine and discipline, or that if they were not, they had been received as such into the bosom of the church; and what is the difference betwixt such a congregation and the one before us ? It is, that the one was turned out of the connexion, and that the other withdrew from it voluntarily; but the minority of the one has as much right as the minority of the other to seize the church property for a violation of conditions supposed to be implied by the act of association. It will not do to say the Assembly sanctioned the separation in the one case and not in the other; for the Assembly had no power over the civil rights of the parties, and could not impair them. Nor did it mean to impair them. On the contrary, it allowed what it considered to be the sound parts of those congregations to attach themselves to the nearest orthodox presbytery. This was done, most assuredly, not to enable them to despoil their congregational brethren; but had they attempted to do so, it is hazarding little to say they would have been disappointed.

In a case like the present, it may be demanded, to what is the minority of a dissentient congregation to appeal ? It might be replied, that for the contingency of revolution, it made no provision in its articles of association, and the law makes none; but that to the justice and forbearance of the majority of the association, whose very object is to deal justly, love mercy, and walk humbly, it is to be supposed that the minority cannot appeal in vain. Nor has.such an appeal in any instance been unsuccessful. The schism which a few years since shook the Methodist church to its centre, is heard of no more; and perhaps this happy termination of it has been effected in a great measure by the good sense of the parties in following the advice of this court in the Methodist Church v. Remington, 1 Watts 227, “ to part in peace, having settled their claims to the property on the basis of mutual and liberal concession.” And the same thing has been done with like effect by the original Presbyterian congregation in Carlisle.

In conclusion, we are of opinion that no particular Presbyterian connexion was prescribed by the founders, or established by the charter; and that if such connexion had been prescribed, there has been no adhesion to a connexion essentially different, and that the breaking up of the original Presbyterian confederation, has released this congregation from the duty of adhering to any particular part of it in exclusion of another. Instead of examining each specific error, it has been thought better to examine the principles on which the title depends; and though the jury were inaccurately instructed that an action could not be maintained by the corporation on its equitable title, yet as other principles in the cause are decisive against its right to recover, the record is free from any error which could do the party an injury.