Religious Liberty Archive : Rothgerber Johnson & Lyons LLP, Colorado Springs, CO

20 L.Ed. 666, 13 Wall. 679

U.S. Supreme Court

WATSON v. JONES

80 U.S. 679

December Term, 1871

APPEAL from a decree of the Circuit Court for the District of Kentucky, made May 11th, 1869.*681

This was a litigation which grew out of certain disturbances in what is known as the 'Third or Walnut Street Presbyterian Church,' of Louisville, Kentucky, and which resulted in a division of its members into two distinct bodies, each claiming the exclusive use of the property held and owned by that local church. The case was thus:

The Presbyterian Church in the United States is a voluntary religious organization, which has been in existence for more than three-quarters of a century. It has a written Confession of Faith, Form of Government, Book of Discipline, and Directory for Worship. The government of the church is exercised by and through an ascending series of 'judicatories,' known as Church Sessions, Presbyteries, Synods, and a General Assembly.

The Church Session, consisting of the pastor and ruling elders of a particular congregation, is charged with maintaining the spiritual government of the congregation, for which purpose they have various powers, among which is the power to receive members into the church, and to concert the best measures for promoting the spiritual interests of the congregation. [FN1] This body, which thus controls in each local church, is composed of the pastor and ruling elders. The number of elders is variable, and a majority of the Session governs. It acts, however, but as representing the congregation which elects it. The elders, so far as the church edifice is concerned, have no power to dispose of its use except as members of the Session.

West Headnotes

Abatement and Revival k8(2)

2k8(2)

On a plea of the pendency of a prior action, it must appear that the parties, the relief sought, and the case made were identical, so that, if judgment were recovered, it would be a bar to a subsequent action for the same cause.

Abatement and Revival k16

2k16

On a plea of a prior action pending, the proceedings on appeal are to be considered as part of such action, and orders made by the appellate court, to be enforced by the lower court, are also a part of the case in the first suit, which may be relied upon as lis pendens in reference to the second suit.

Religious Societies k12(5)

332k12(5)

In the case of a religious congregation which is itself part of a large and general organization of some religious denomination with which it is more or less intimately connected by religious views and ecclesiastical government, questions of discipline, or of faith, or ecclesiastical rule, custom or law which have been decided by the highest of the church judicatories to which the matter has been carried, must be accepted as final and as binding by legal tribunals.

Religious Societies k14

332k14

Where property is dedicated by way of trust for the purpose of sustaining, supporting and propagating definite religious doctrines or principles, it is the duty of the court to see that such property is not diverted from such trust so long as there are persons qualified within the meaning of the original dedication who are willing to teach the doctrines or principles prescribed in the act of dedication, and so long as there is any one so interested in the execution of the trust as to have a standing in court.

Religious Societies k17

332k17

An individual or an association of individuals may dedicate property by way of trust to the purpose of sustaining, supporting and propagating definite religious doctrines or principles, provided that in doing so they violate no law of morality and give to the instrument by which their purpose is evidenced, the formalities which the laws require.

Religious Societies k23(3)

332k23(3)

In the case of schism in an independent congregation, the right to its property claimed by the opposing factions is to be determined by the majority of the society, or by such organization of the society as, by its own rules, constitutes its governing power.

Religious Societies k23(3)

332k23(3)

Where there is a schism in a church of a strictly congregational or independent organization governed solely within itself, leading to a separation into distinct and conflicting bodies, the rights of such bodies to the use of such property must be determined by the ordinary principles which govern voluntary associations.

Religious Societies k23(3)

332k23(3)

Where property is confided in trust to a religious congregation of the independent or congregational form of church government, it is not in the power of the majority of the congregation, however preponderant, by reason of a change of views on religious subjects, to carry the property so confided to them to the support of new and conflicting doctrine.

Religious Societies k24

332k24

Where a right of property in a civil court is dependent upon a question of ecclesiastical cognizance within an associated religious denomination having an ascending series of judicatories, and it has been decided by the highest tribunal within that organization having jurisdiction of the case, such decision will be accepted as conclusive by the civil court.

Religious Societies k24

332k24

Controversies in the civil courts concerning property rights of religious societies are generally to be decided by inquiring-First, was the property or fund in question devoted by the express terms of the gift, grant, or sale by which it was acquired, to the support of any specific religious doctrine or belief, or was it acquired for the general use of the society for religious purposes with no other limitation? And, second, is the society which owned it of the strictly congregational or independent form of church government, owing no submission to any organization outside the congregation, or is it one of a number of societies united to form a more general body of churches subject to ecclesiastical control, invested in the general association over the members and societies of which it is composed?

Religious Societies k24

332k24

Where property is devoted to a specific doctrine, the court will, when necessary to protect the trust to which the property has been devoted, inquire into the religious faith or practice of the parties claiming its use or control, and will see that it shall not be diverted from that trust.

Religious Societies k24

332k24

If the property was acquired in the ordinary way of purchase or gift, for the use of a religious society, the court will inquire who constitute that society, or its legitimate successors, and award to them the use of the property.

Constitutional Law k84

92k84

In the United States everyone has the full and free right to entertain religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property and which does not infringe personal rights, and the law knows no heresy and is committed to the support of no dogma and the establishment of no sect.

Courts k494

106k494

When the pendency of a suit in a court of concurrent jurisdiction is set up to defeat a suit, the case must be the same and there must be the same parties, or at least such as represent the same interest, and the same rights must be asserted and the same relief prayed for, and such relief must be founded on the same facts and the title or essential basis of the relief sought must be the same.

Courts k494

106k494

As between courts of concurrent jurisdiction, the court which has first obtained jurisdiction in a given case must retain it exclusively until it disposes of it by a final judgment or a decree.

Courts k508(1)

106k508(1)

The circuit court of the United States will not issue an injunction which will in any way interfere with the jurisdiction of a state court having concurrent jurisdiction with the federal court over the subject-matter in litigation, where the state court obtained jurisdiction prior to the federal court.

Injunction k110

212k110

Orders made by the appellate court of a state, to be enforced by a court of primary jurisdiction, are, while unexecuted, a part of the cause in the lower court; and hence, where an unexecuted order of this kind had been made by a state court to restore possession of property to parties who had been deprived thereof by a decree which had been reversed, injunction could not be granted by a federal court, interfering in any way with the execution of such order.

Connected with each local church, and apparently without any functions in essence ecclesiastical, are what are called the 'Trustees;' three persons usually, in whom is vested for form's sake, the legal title to the church edifice and other property; the equitable power of management of the property being with the Session. These Trustees are usually elected biennially; they are subject to the Session, and may be removed by the congregation.

The Presbytery, consisting of all the ministers and one *682 ruling elder from each congregation within a certain district, has various powers, among them the power to visit particular churches for the purpose of inquiring into their state, and redressing the evils which may have arisen in them; to ordain, and install, remove, and judge ministers; and, in general, power to order whatever pertains to the spiritual welfare of the churches under their care. [FN2]

The Synod, consisting of all the ministers and one ruling elder from each congregation in a larger district, has various powers, among them the power to receive and issue all appeals from Presbyteries; to decide on all references made to them; to redress whatever has been done by Presbyteries contrary to order; and generally to take such order with respect to the Presbyteries, Sessions, and people under their care as may be in conformity with the world of God and the established rules, and which tend to promote the edification of the church. [FN3]

The General Assembly, consisting of ministers and elders commissioned from each Presbytery under its care, is the highest judicatory of the Presbyterian Church, representing in one body all of the particular churches of the denomination. Besides the power of receiving and issuing appeals and references from inferior judiciatories, to review the records of Synods, and to give them advice and instruction in all cases submitted to them in conformity with the constitution of the church, it is declared that it 'shall constitute the bond of union, peace, correspondence, and mutual confidence among all our churches.' [FN4] 'To the General Assembly also belongs the power of deciding in all controversies respecting doctrine and discipline; of reproving, warning, or hearing testimony against any error in doctrine or immorality in practice, in any Church, Presbytery, or Synod; . . . of supperintending the concerns of the whole church; . . . of suppressing schismatical contentions and disputations; and, in general, of recommending and attempting reformation of *683 manners, and the promotion of charity, truth, and holiness through all the churches under their care.' [FN5]

The Walnut Street Presbyterian Church, of which we have spoken, was organized about 1842, under the authority and as a part of the Presbyterian Church in the United States, and, with the assent of all its members, was received into connection with and under the jurisdiction of the Presbytery of Louisville and the Synod of Kentucky. It remained in such connection and under such jurisdiction, without any distribance among its members, until the year 1865, when certain events took place in Kentucky which will be stated presently.

After the organization, to wit, in 1853, the said local church purchased a lot of ground in Louisville, and a conveyance was made to the church's trustees to have and to hold to them, and to their successors, to be chosen by the congregation.

In 1854 the trustees of the church were incorporated with power to hold any real estate then owned by it; the property to pass to them and their successors in office. By the act it was declared that the trustees, to be elected by the members of the congregation, should continue in office two years, and until their successors were elected, 'unless they shall sooner resign, or refuse to act, or cease to be members of the said church.' The trustees were charged by the act with the duty of providing for the comfort and convenience of the congregation, the preservation of the property, and passing such regulations relative to the government and control of the church property as they might think proper, not inconsistent with the Constitution of the United States and the laws of Kentucky.

Though neither the deed nor charter said this in terms, it was admitted that both contemplated the connection of the local church with the general Presbyterian one, and subjected both property and trustees alike to the operation of its fundamental laws.*684

We now pass to some history of the disturbances to which we have referred as matter to be related.

With the outbreak of the war of the insurrection, and the action of it upon the subject of slavery, a very excited condition of things, originating with and influenced by that subject, manifested itself in the Walnut Street Church. One of the earliest exhibitions of the matter was in reference to the re-engagement as minister of a certain Reverend Mr. McElroy. The members of the church were asked by a majority of the Session, at this time composed of three persons, named Watson, Galt, and Avery, [FN6] to make a call upon Mr. McElroy to become the pastor, but at a congregational meeting the majority of the members declined to make the call. The majority of the Session (that is to say, Watson and Galt) renewed, notwithstanding, the engagement of Mr. McElroy for six months. In August, 1865, the majority of the congregation asked the Session that on the expiration of the then current six months of Mr. McElroy's engagement no further renewal thereof should be made. In connection with these efforts of the majority of the Session (Watson and Galt) to maintain Mr. McElroy as preacher, charges were preferred against three members of the congregation, named B. F. Avery, T. J. Hackney, and D. McNaughtan, who had co-operated with the majority of it in the movements to obtain another minister. And about the same time, by way of counteraction, apparently, charges were preferred by some of the majority against Watson and Galt. While these troubles were existing, some of the members of the church appealed to the Synod of Kentucky, which body, on the 20th of October, 1865, appointed a committee to visit the contregation, 'with power to call a congregational meeting for the purpose of electing additional ruling elders, calling a *685 pastor, or choosing a stated supply, and doing any other business competent to a congregational meeting that may appear to them, the said congregation, necessary for their best interests.' The synoldical committee thus appointed called a congregational meeting for the purpose of the election, in January, 1866. Watson and Galt refused to open the church for the meeting, but the majority organizing themselves on the sidewalk, elected a certain J. A. Leach, with B. F. Avery and D. McNaughtan (which last two names have already appeared in our history), additional ruling elders, who went through what they deemed a valid process of ordination and instalment. The other admitted elders were Watson, Galt, and Hackney. They trustees of the church were Henry Farley, George Fulton, and B. F. Avery, and they had they actual possession of the church property. Fulton and Farley, uniting with Watson and Galt, denied the validity of the election of Avery, Leach, and McNaughtan, and refused to allow them any participation as elders in the control of the church property. Hackney admitted the validity of such election, and recognized Avery, Leach, and McNaughtan as lawful elders.

In this state of things, Avery and his associates filed a bill, on the 1st of Februar, 1866, in the Louisville Chancery Court, against Watson, Galt, Fulton, and Farley, for the purpose of asserting the right of Avery, Leach, and McNaughtan, as elders, to participate with the other elders in the management of the church property for purposes of religious worship.

In the progress of that case the three trustees, Farley, Fulton, and Avery, were appointed, on the 20th of March, 1866, receivers 'to take charge of the church building, and all property belonging to the said church,' during the pendency of the suit, or until the further order of the court; and they were 'ordered to keep and preserve the said property, and keep it in repair to the best of their ability, and to open the various portions of the building ready for worship, and others services of said church, according to the laws and usages of the Presbyterian Church; and not to prevent any *686 part of the congregation from attendance upon the meetings of said church, and enjoying the use thereof according to their rights and privileges as members thereof.'

At a subsequent date--June 15th, 1866--the chancellor delivered an opinion recognizing Avery, Leach, and McNaughtan as elders, and entered an order that the trustees, Farley, Fulton, and Avery, now receivers, open the church for divine worship and congregational meetings whenever ordered to do so by the Session of the church, constituted of the said Avery, Hackney, and McNaughtan, Leach, Watson, and Galt, or a majority thereof.

The execution of this order was, apparently, so far interfered with by Watson, Galt, Fulton, and Farley as practically to prevent religious services in the church edifice. At all events, on the 23d of July, 1866, it was ordered:

'That the MARSHAL OF THIS COURT do take possession of the church property until the further order of the court, and that the same be opened: 1. For Sunday-schools and other like purposes. 2. For the meeting of the Session when notified thereof. 3. For public worship, and such using of the pulpit and the house generally as the Session shall order. And it is ordered that he be respectful to the order of the Session, as this court said on the 15th of June. The Session, according to the decision of the General Assembly, at Peoria, Illinois, has control of the church buildings, &c. The keys of the church, &c., are ordered to be delivered to the marshal.'

The marshal took possession by virtue of this order. Thenceforward Watson, Galt, Fulton, and Farley abandoned connection with the property and participation in its control.

Thus matters stood, so far as the church property was concerned, up to the final decree in Avery et al. v. Watson et al., made May 7th, 1867, when it was decreed that Leach, Avery, and McNaughtan, with Hackney, Watson, and Galt, were ruling elders that constituted the Session of the Walnut Street Church, and the management of the said property for the purpose of worship and other religious service was committed to their care, under the regulations of the Presbyterian Church in the United States of American; and it was ordered *687 that the defendants, Watson and Galt, pay to the plaintiffs their costs.

It will be observed that the marshal was not, by the terms of the decree, directed to give up his possession; nor was any motion or order afterwards made requiring him to give up or discharging him as receiver. Nor did he, in fact, so far as appeared from the record, ever abandon possession, although the property continued, as it had been since July 23d, 1866, subject to the exclusive control of Avery and his associates.

From this final decree an appeal was taken to the Court of Appeals of Kentucky, but Watson and his friends did not supersede that decree, nor take other step to prevent its immediate execution.

The decree of the chancellor was reversed by the Court of Appeals of Kentucky. [FN7] The language of the order of reversal was thus:

'And the judgment of the chancellor, which commits the management and control of said church property to said Avery, McNaughtan, and Leach, in conjunction with said Watson, Galt, and Hackney, is therefore deemed erroneous. Wherefore the judgment is reversed, and the cause remanded for proper corrective proceedings respecting the possession, control, and use of the church property, and for final judgment in conformity to this opinion.'

As to the nature of the issues in this case of Avery v. Watson, the Court of Appeals of Kentucky said: [FN8]

'As suggested in the argument, and apparently conceded on both sides, this is not a case of division or schism in a church, nor is there any question as to which of TWO BODIES should be recognized as the Third or Walnut Street Presbyterian Church; nor is there any controversy as to the authority of Watson and Galt to act as ruling elders; but the sole inquiry to which we are restricted, as we conceive, is whether Avery, McNaughtan, and Leach are ALSO ruling elders, and therefore members of the Session of the church.'*688

On the 21st of February, 1868, the opinion and mandate of the Court of Appeals was filed in the Louisville Chancery Court, and the defendants moved the court 'to restore to them, and those entitled under the said opinion, the possession, use, and control of the church building and property, which was taken from them by the marshal of the court, under orders of court, during the pendency of the action, and to dismiss the plaintiffs' petition with costs.'

On the 28th of February, 1868, the complainants in the case of Avery v. Watson filed a petitioner in equity against the defendants, and moved the court for an injunction 'enjoining them from any further prosecution of their said motion made on the 21st of February, 1868, and from all proceeding by motion, suit, or otherwise to obtain possession, control, or use of the property of the Walnut Street Presbyterian Church of Louisville.'

The petition in equity thus presented averred that subsequent to the original decree of the chancellor, Watson, Galt, and the others adhering to them, had voluntarily withdrawn from the Walnut Street Presbyterian Church, and from the Presbyterian Church in the United States of America, and had thereby ceased to be members of the said church, or to have any interest in the property held by that church; that the plaintiffs in that injunction suit, together with those united in interest with them, constituted at that time the only beneficiaries of the trust property; and that therefore the attempt of Watson and his friends, under a mere order of restitution, based upon the reversal by the appellate court of the chancellor's decree, to obtain the possession of the property, as elders and trustees, was a fraud upon the rights of the beneficiaries of the property. And it charged that Watson and his friends intended to use the property as the property exclusively of their party and to deny the rights of all others as members.

On the 20th day of March, 1868, the chancellor granted upon this petition an injunction against the defendants in the action, enjoining them from any further proceeding on their motion made on February 21st, 1868; the former decree *689 being at the same time so far reversed that the original petition was dismissed, and costs awarded to the defendants.

Watson and his friends now obtained from the Court of Appeals of Kentucky a summons against the chancellor of the Louisville Chancery Court 'to appear and show cause why he has refused to carry into effect the mandate of said court,' and the chancellor having appeared, an opinion upon the rule was delivered. [FN9]

In the last-named case it was decided:

1. That the opinion and mandate in the previous decision in the appellate court, [FN10] imported a direction to restore to the defendants such rights of possession, control, and use of the property as the former judgment had erroneously taken or withheld from them.

2. That 'no undecided question was reserved for further litigation in the court below.'

3. That the Chancery Court must enter the proper order directed by the Court of Appeals; and 'if there be any equitable reason for not coercing the order or decree for restitution, it should be made available as a ground for enjoining, and not for preventing or modifying, the order of restitution.'

4. That the petition in equity of Avery and others, although intended to operate both as a written defence to the action of the court sought by the defendants in the old suit, and at the same time as the initial pleading in a new one, was to be regarded, so far as the action of the chancellor was concerned, as a response of the plaintiffs, interposed to prevent the rendering of a judgment in conformity to the decision and mandate of this court.

5. That if any equitable reasons existed for not enforcing restitution, they should be asserted in a new suit, enjoining the enforcement of the order of restitution after such order had been entered.

Accordingly the Court of Appeals, June 26th, 1868, on this rule against the chancellor, ordered that the latter make an *690 order 'restoring the possession, use, and control of the church building and property to the parties entitled thereto according to the said opinion, and so far as they were deprived thereof by the marshal of the Chancery Court under its orders.'

The parties in whose favor, according to the opinion, the order of restitution was to be made were of course Watson, Galt, and Hackney, ELDERS, and Fulton, Forley, and Avery, TRUSTEES.

After this last decision of the Kentucky Court Appeals, the petition for injunction filed in the Louisville Chancery Court on the 28th of February, 1868, was, on the motion of those who filed it, dismissed without prejudice.

The present suit in the Circuit Court was begun July 17th, 1868.

Subsequently, on the 18th of September, 1868, the chancellor directed the marshal of the Chancery Court 'to restore the possession, use, and control of the church building and property . . . to Farley, Fulton, and Avery, or a majority of them, as trustees, and to Watson, Galt, and Hackney, or a majority of them, as ruling elders of the said church, and to report how he had executed the order;' reserving the case for such further order as might be necessary to enforce full obedience.

Thus far as to the controversy in the Walnut Street Church, involved in the particular case of Watson v. Avery, in the State courts of Kentucky.

We have already adverted to the war of the insurrection, its action on the subject of slavery, and the feeling engendered by this action in the special congregation of the Walnut Street Church.

We now speak of the same subject of the war, of slavery, &c., in its more general relation with the judicatories above that local church, and of the way in which this local church was affected by and identified itself with the action of the more general church. From the beginning of the war to its close, the General Assembly of the Presbyterian Church at its annual meetings expressed in Declaratory Statements *691 or Resolutions, its sense of the obligation of all good citizens to support the Federal government in that struggle; and when, by the proclamation of President Lincoln, emancipation of the slaves of the States in insurrection was announced, that body also expressed views favorable to emancipation, and adverse to the institution of slavery. At its meeting in Pittsburg in May, 1865, instructions were given to the Presbyteries, the Board of Missions, and to the Sessions of the churches, that when any person from the Southern States should make application for employment as missionary or for admission as members, or ministers of churches, inquiry should be made as to their sentiments in regard to loyalty to the government and on the subject of slavery; and if it was found that they had been guilty of voluntarily aiding the war of the rebellion, or held the doctrine announced by the large body of the churches in the insurrectionary States which had organized a new General Assembly, that 'the system of negro slavery in the South is a divine institution, and that it is the peculiar mission of the Southern church to conserve that institution,' they should be required to repent and forsake these sins before they could be received.

In the month of September thereafter the Presbytery of Louisville, under whose immediate jurisdiction was the Walnut Street Church, adopted and published in pamphlet form, what it called 'A Declaration and Testimony against the erroneous and heretical doctrines and practices which have obtained and been propagated in the Presbyterian Church of the United States during the last five years.' This Declaration denounced, in the severest terms, the action of the General Assembly in the matters we have just mentioned, declared an intention to refuse to be governed by that action, and invited the co-operation of all members of the Presbyterian Church who shared the sentiments of the Declaration, in a concerted resistance to what they called 'the usurpation of authority' by the Assembly.

The General Assembly of 1866, denounced in turn the Declaration and Testimony and declared that every Presbytery *692 which refused to obey its order should be ipso facto dissolved, and called to answer before the next General Assembly; giving the Louisville Presbytery an opportunity for repentance and conformity. The Louisville Presbytery divided, and the adherents of the Declaration and Testimony sought and obtained admission, in 1868, into 'the Presbyterian Church of the Confederate States,' a body which had several years previously withdrawn from the General Assembly of the United States and set up a new organization.

In January, 1866, the congregation of the Walnut Street Church became divided in the manner stated above, each asserting that it constituted the church, although the issue as to membership was not distinctly made in the chancery suit of Avery v. Watson already so fully described. Both parties at this time recognized the same superior church judicatories.

On the 19th June, 1866, the Synod of Kentucky became divided, the opposing party in each asserting respectively that it constituted the true Presbytery and the true Synod; each meanwhile recognizing and professing to adhere to the same General Assembly. Of these contesting bodies Watson and his party adhered to one, those whom he opposed to the other. The Presbytery and Synod to which these last, that is to say, Avery or Hackney and his party, adhered, being known respectively as the McMillan Presbytery and the Lapsley Synod.

On the 1st of June, 1867, the Presbytery and Synod recognized by Watson and his party, were declared by the General Assembly to be 'in no sense a true and lawful Synod and Presbytery in connection with and under the care and authority of the General Assembly of the Presbyterian Church in the United States of America;' and were permanently excluded from connection with or representation in the Assembly. By the same resolution the Synod and Presbytery adhered to by those whom Watson and his party opposed were declared to be the true and lawful Presbytery of Louisville, and Synod of Kentucky.*693

The Synod of Kentucky thus excluded, by a resolution adopted the 28th June, 1867, declared 'that in its future action it will be governed by this recognized sundering of all its relations to the aforesaid revolutionary body (the General Assembly) by the acts of that body itself.' The Presbytery took substantially the same action.

In this final severance of Presbytery and Synod from the General Assembly, Watson and his friends on the one side, and those whom he opposed on the other, continued to adhere to those bodies at first recognized by them respectively. This latter party now included, among many others, a certain William Jones, with his wife, and one Eleanor Lee, who had been admitted into membership by the Hackney, &c., Session.

The reader will now readily perceive, if he have not done so before, how in the earliest stages of this controversy it was found that a majority of the members of the Walnut Street Church concurred with the action of the General Assembly, while Watson and Galt as ruling elders, and Fulton and Farley as trustees, constituting in each case a majority of the Session and of the trustees, with Mr. McElroy the pastor, sympathized with the party of the Declaration and Testimony of the Louisville Presbytery. And how this led to efforts by each party to exclude the other from participation in the Session of the church and the use of the church property; as well as to all that followed.

The grounds on which the Court of Appeals reversed the chancellor's decision were, of course, that the General Assembly, Synod, and Presbytery of the Presbyterian Church, were all subject, in the exercise of their functions, to Constitutions (the standards mentioned at the beginning of this report); that when they violated these, their acts were beyond their jurisdiction and void; that whether they had violated them or not, was a matter which the civil courts, on an examination of the Constitutions, could properly pass on; and deciding further and finally as fact, after an examination by the court itself of these standards, that in their Declaratory Statements and Resolutions and other *694 deliverances enforcing loyalty, they had violated them; and that their acts were accordingly void.

Thus things stood in July, 1868; and the term for which the old trustees had, in more peaceful times, been elected having expired, the persons worshipping in the Walnut Street Church and so in possession, elected as new ones three persons whose names now first figure on our report. These persons were named McDougall, McPherson, and Ashcraft.

The newly elected elders and the majority of the congregation adhered to and had been recognized by the General Assembly as the regular and lawful Walnut Street Church and officers. Galt and Watson, Fulton and Farley, and a minority of the members, had cast their fortunes with those who adhered to the party of the Declaration and Testimony.

In this state of things, Jones, his wife, and Lee, on the 21st July, 1868, three months before the mandate of September 18th to the Chancery Court, mentioned at page 690, filed a bill in chancery in the Circuit Court of the United States for the District of Kentucky against Watson and Galt, [FN11] Fulton, Farley, [FN12] and Avery, the church corporation, and McDougall, McPherson, and Ashcraft, as trustees. The complainants alleged that they were citizens of Indiana; and that each of the natural persons already named were residents of Louisville and citizens of Kentucky, and that the church corporation was a corporation created by Kentucky and doing business in that State. They alleged further that they were members in good and regular standing of the said church, attending its religious exercises under the pastorship of the Rev. J. S. Hays, and that the defendants, Fulton and Farley, who pretended without right to be trustees of the church, supported and recognized as such by the defendants, Watson and Galt, who also pretended without right to be ruling elders, were threatening, preparing, and about to take unlawful possession *695 of the house of worship and grounds belonging to the church and to prevent Hays, who was the rightful pastor, from ministering therein, refusing to recognize him as pastor, and to recognize as ruling elder, Hackney, who was the sole lawful ruling elder; and that when they should obtain such possession they would oust Hays and Hackney, and those who attended their ministrations, among whom the complainants represented themselves to be.

They further alleged that Hackney, whose duty it was as elder, and McDougall, McPherson, and Ashcraft, whose duty it was as trustees to protect the rights thus threatened, by such a proceeding in the courts as would prevent the execution of the threats and designs of the other defendants, refused to take any steps to that end.

They further alleged that the Walnut Street Church, of which they were members, now formed and had ever since its organization in the year 1842, formed a part of the Presbyterian Church of the United States of America, known as the Old School, which was governed by a written consfitution that included the Confession of Faith, Form of Government, Book of Discipline, and Directory for Worship; and that the governing bodies of the general church above the Walnut Street Church, were, in successive order, the Presbytery of Louisville, the Synod of Kentucky, and the General Assembly of the Presbyterian Church of the United States; that while the complainants and about 115 members who worshipped with them, and Mr. Hays (the pastor), Hackney (the ruling elder), and McDougall, McPherson, and Ashcraft (the trustees), were now in full membership and relation with the lawful General Presbyterian Church aforesaid, Watson and Galt, Fulton and Farley, with about 30 persons formerly members of the said church, worshipping under one Dr. Yandell as pastor, had seceded and withdrawn themselves from the Walnut Street Church, and from the General Presbyterian Church in the United States, and had voluntarily connected themselves with and were now members of another religious society, and that they had repudiated and did now repudiate and renounce the authority *696 and jurisdiction of the various judicatories of the Presbyterian Church of the United States and acknowledge and recognize the authority of other church judicatories which were disconnected from the Presbyterian Church of the United States and from the Walnut Street Church. And they alleged that Watson and Galt had been, by the order of the General Assembly of the said church, dropped from the roll of elders in said church for having so withdrawn and renounced its jurisdiction, and that the Assembly had declared the organization to which the plaintiffs adhered as the true and only Walnut Street Presbyterian Church of Louisville.

The prayer of the bill was that 'Watson, Galt, Fulton, and Farley be restrained by an injunction issuing out of the Circuit Court, from taking, or attempting to take, possession of the house of worship and other property of the Walnut Street Church, and from interfering with REV. J. S. HAYS PREACHING IN SAID HOUSE OF WORSHIP; also that Watson and Galt be restrained in like manner from controlling, or attempting to control or manage, the said property in the capacity of elders of the church; also, that Fulton and Farley be restrained in like manner from controlling, or attempting to control or manage, the said property as trustees of said church; . . . and that the complainants have generally such other and further relief as the nature of their case required.'

The answer having alleged that pending the final process in the Chancery Court two persons, named Heeter and Given, had been elected additional ruling elders, and that one Polk had been elected trustee, in the place of Avery, the complainants amended their bill accordingly, and by agreement the answer of the original defendants was made the answer of the new parties.

The defendants, Hackney, McDougall, McPherson, and Ashcraft, answered, admitting the allegations of the bill, and that though requested they had refused to prosecute legal proceedings in the matter, because as they thought any effort to that end in the courts of the State of Kentucky would prove useless.*697

The defendants Watson and Galt, Fulton and Farley, answered, and after declaring their belief that the complainants were lately citizens of Kentucky and that their citizenship in Indiana was merely for the purpose of filing this bill in the Federal court, denied almost every allegation of the bill. They set up that though they had been deprived of their former actual possession of the church edifice and property by the illegal and now overruled decree of the Louisville Chancery Court, they had nevertheless maintained and kept up a regular and valid organization of the Walnut Street Presbyterian Church--the only regular and valid organization that had been kept up; that they were the lawful officers of that church, and that they and those whom they represented were its true members. They denied having withdrawn from either the local or the general church, and denied that the action of the General Assembly cutting them off was within its constitutional authority. They represented that the plaintiffs were not and never had been lawfully admitted to membership in the Walnut Street Church, and had no such interest in it as would sustain this suit, and they set up and relied upon the suit in the Chancery Court of Louisville, which they represented was still pending, and which they stated involved the same subject-matter, and was between the same parties in interest as the present one. They alleged that in that suit they had been decreed to be the only true and lawful trustees and elders of the Walnut Street Church, and that an order had been made to place them in possession of the church property, which order remained unexecuted, and that the property was still in the possession of the marshal of that court as its receiver. These facts were relied on in bar to the present suit.

The case coming on to be heard, the Circuit Court declared that it seemed to it that the complainants were members of the Third or Walnut Street Presbyterian Church in Louisville, and as such had a beneficial interest in the church building and other property in the pleadings mentioned.

That the Reverend J. S. Hays was pastor; Hackney, Avery, McNaughtan, and Leach, ruling elders; and McDougall, *698 McPherson, and Ashcraft, trustees; and that they were respectively entitled to exercise whatever authority in the said church, or over its members or property, rightfully belonged to pastor, elders, and trustees, respectively, in churches in connection with 'The Presbyterian Church in the United States of America,' Old School, and according to the regulations and usages of that church.

That McDougall, McPherson, and Ashcraft, trustees, were in regular succession from the trustees named in the deed of conveyance of the church property in 1853, and likewise in regular succession from the trustees named in the act of incorporation, and that as such trustees they were entitled to the exclusive control of the church building and other property of said church for the purposes of worship by the members of the said church, in accordance with the regulations and usages of the Presbyterian Church in the United States.

That those only were to be recognized as members of the Walnut Street Church who adhered to and recognized the authority of the Presbyterian Church in the United States of America, and the various church judicatories which submit to its jurisdiction; and in determining what was the true Presbytery of Louisville, and true Synod of Kentucky, having jurisdiction over the said Walnut Street Presbyterian Church, its officers and members, this court and all other civil tribunals were concluded by the action of the General Assembly of said Presbyterian Church in the United States of America.

That those members of the Walnut Street Church who worshipped statedly at the church edifice [position in the city of Louisville described], in said city, who had as their pastor the Reverend J. S. Hays, and who recognized Hackney, Avery, Leach, and McNaughtan as ruling elders, and McDougall and McPherson as trustees, including all those connected with them, who had been received into said church since January 1st, 1866, under Hackney, Avery, Leach, and McNaughtan as elders, or under the ministration of Hays as pastor, constituted the Third or Walnut Street Presbyterian Church in Louisville, and the sole beneficiaries *699 for whose use the property mentioned in the pleadings was dedicated; and that the said persons, together with their pastor, elders, and trustees, had the exclusive right to use the same according to the regulations and usages of the Presbyterian Church of the United States of America.

It seemed further to the court that the Rev. Dr. Yandell was not pastor of the said Third or Walnut Street Presbyterian Church, nor were Galt, Watson, Heeter, and Given, or either of them, elders in the said church. And that Fulton, Farley, and Polk were not trustees.

That all those persons who pretended to be members of the said church, but who did not recognize Hays as paster, or Hackney, Avery, Leach, and McNaughtan as elders, or McDougall, McPherson, and Ashcraft as trustees, and who recognized Watson, Galt, Given, and Heeter as elders, and Fulton, Farley, and Polk as trustees, and worshipped separately and apart from those hereinbefore declared to be the sole beneficiaries of said property, and who denied the authority of Hays as pastor, and also the ecclesiastical authority of the McMillan Presbytery of Louisville, and of the Lapsley Synod of Kentucky, did not have any connection with, nor were they members of, the Third or Walnut Street Presbyterian Church, for whose use the property in question was conveyed and dedicated, nor had the said persons, or any of them, any beneficial interest in it, nor were they entitled to the use of it in any way whatever as members of the said church.

It was thereupon decreed:

1st. That the defendants, Heeter, Given, and Polk, be enjoined from taking possession of, and from using or controlling the church edifice and other property of the Walnut Street Church, except as they, or any one of them, may choose to attend religious worship, or other religious exercises, in the same manner as other persons not officers or members of said church.

2d. That the defendants Watson, Galt, Fulton, Heeter, Given, Polk, Farley, and all others, be enjoined from so using or controlling the said church edifice, or other property of the *700 church, as in any wise to interfere with the ministrations therein of Hays as pastor, or with the exercise by him and by Hackney, and others, recognized as elders in the said church by those herein declared to be sold beneficiaries of said property, of any authority in the said church or over its property or members which rightfully belongs to the pastors and elders of the churches in connection with and according to the usages of the Presbyterian Church of the United States of America.

3d. That the defendants Watson, Galt, Heeter, Given, Fulton, Farley, and Polk, and all others, be enjoined from using or controlling the church edifice and property in any other manner than as the property exclusively of the persons hereinbefore declared to be the Third or Walnut Street Presbyterian Church of Louisville, and the sole beneficiaries of said property, having Hays as pastor, and recognizing Hackney, Avery, Leach, and McNaughtan as elders, and McDougall, McPherson, and Ashcraft as trustees. And that they, and all others, be enjoined from interfering in any manner with the use of the said property by the members of the said church hereinbefore declared to be such, and by such as might be hereafter admitted into said church according to its forms, and who are or might become connected with and under the care and authority of the General Assembly of the Presbyterian Church in the United States of America, and the several judicatories which submit to the authority of said Assembly; and from hindering or preventing any one from worshipping in said church, or participating in any of its religious exercises according to the usages of said church.

From this decree Watson and the other defendants appealed.

Mr. T. W. Bullitt, for the appellants:

I. The Circuit Court had no jurisdiction, because,

1. The complainants had no such interest in the subject of litigation as would enable them to maintain the suit. Membership in the Walnut Street Church is of course essential to give the requisite interest. But they are not members. *701 By the constitution of the Presbyterian Church the Session admits to membership. In Avery v. Watson the direct issue was whether Avery, Leach, and McNaughtan were elders; and it was decided that they were not. The body which, if they had been elders, would have been a Session, was, from the fact that they were not elders, not a Session.

But the Circuit Court had no jurisdiction, because,

2. The Louisville Chancery Court had exclusive jurisdiction over the property in controversy, and over the present parties. A series of cases involving the relations of State and Federal courts have established this rule, to wit: that where property has been once lawfully taken possession of under process of a court, such court has exclusive jurisdiction over the thing, and that this jurisdiction extends to every question or claim of title, interest or use touching such property, of whatever nature or origin, or in whose hands soever it may subsist. It is not material that such claim be wholly different from or that it is prior or subsequent in date, or even paramount to any or all the claims pending before the court. The jurisdiction is exclusive over the thing itself, and such claim must be asserted, if at all, in the court having such possession and jurisdiction. Conceding that the matters alleged in the present bill constitute a controversy different from and subsequent in date to that made before the chancellor, yet, so long as the chancellor's possession or exclusive jurisdiction of the property or thing in controversy continued, and decree by the Circuit Court touching that property was without authority and void. Any alleged claims touching that property should have been asserted before the chancellor or their assertion delayed, until by execution of final process he had voluntarily and completely yielded up his jurisdiction over it.

In Hagan v. Lucas, [FN13] the claim asserted by the claimant in the Federal court was wholly different from and independent of the controversy pending in the State court. In Peck v. Jenness, [FN14] the case was similar. In Taylor v. Carryl, [FN15] the *702 plaintiffs claimed under a maritime lien for seamen's wages. The claims were not only asserted by strangers, but were conceded by this court to be paramount to all claims pending before the State court; and yet, in each case, by reason of the possession of the State court through its officers, it was declared to have exclusive jurisdiction of the thing, capable alone of entertaining any question touching its possession, title, or use, and that the process of the Federal court was void. Freeman v. Howe [FN16] is in coincidence with all these cases.

But independently of this, the delivery to the trustees and elders of the body of which the Avery or Jones party are members, of the possession of the church building cannot be granted in this suit, nor can the other side be enjoined from taking possession as prayed for in the bill, because the property is in the actual possession of the marshal of the Louisville Chancery Court as its receiver, and because there is an unexecuted decree of that court ordering him to deliver the possession to the defendants.

The marshal did never in form or fact abandon his possession. The only argument could be that his possession was that of a receiver, and that his appointment was superseded by the final decree. But it is text-book law that a receiver is never discharged by final decree. [FN17] It is unimportant, however, whether the marshal did or did not either under order of court or otherwise abandon his possession. The just construction of the rule we conceive to be, that property once taken possession of by a court, and disposed of under its order, remains in custody of the law, subject to the exclusive jurisdiction of the court (into whose hands soever it may pass), until by the execution of its final decree, the jurisdiction of the court is completely exhausted.

II. We come then to the great question of the case; one touching the character and extent of jurisdiction vested by our law in those voluntary associations sometimes called *703 ecclesiastical courts, and how far they are independent of control by the civil,--a question of magnitude every way; one which determines the relations of the church to the state in this country, and whether the church in relation to its civil interests is organized under the authority of law or above it.

The case shows two contesting organizations, each asserting itself to be the true Walnut Street Church mentioned in the deed and charter. The question for decision, therefore, is strictly one of identity and of lawful organic succession.

A number of cases of church litigation are reported in New York and New England; but they are inapplicable to the questions arising herein, because in New England the cases refer to congregational or independent churches, and in New York to incorporated religious societies, wherein the whole body of the congregation, whether members of the church or not, are members of the corporation; and where disputed questions touching property or other rights are determined strictly on the principles applicable to corporations. [FN18]

The Pennsylvania cases of Presbyterian Congregation v. Johnston, and Commonwealth v. Green, [FN19] present some points of contrast with the questions in this cause, especially the latter, which relates mainly to questions of property held by the governing body as distinguished from that of a congregation part of a larger organization.

In Kentucky, Gibson v. Armstrong, [FN20] gives a case which assists us. Shannon v. Frost, [FN21] is inapplicable in this cause, by reason of the congregational character of the Baptist Church in which it arose.

The great field for litigation of this nature has undoubtedly been Scotland, the native home of the Presbyterian faith and form of church government.

Prior to about the year 1813 the courts seemed not to *704 have settled upon any definite rule by which church controversies were to be adjudged. Their unwillingness, however, coupled with doubts as to their power to handle ecclesiastical matters inclined them generally to refer every question involving such matters exclusively to the decision of the Church itself. But there were difficulties in the application of the principle, and a confused idea that in case of schism the organic succession necessarily remained with the majority of the local society, counterbalanced by the idea that its identity could not be preserved except in connection with the general body of which it formed a part, caused a singular vacillation in judicial decision. The earlier decisions, accepting as a conclusive test of right the action of a majority of the local congregation, afforded an easy and simple rule, so long as applied to independent churches; but when it came to be applied to societies organized as a part of larger bodies, where the majorities in the local and general organizations might be different, it was found not to be founded on just or practicable principles. For a time the courts vacillated in its application, as their views happened to lean most strongly towards congregational independence or towards ecclesiastical connection and subordination. Finally, about the year 1813, came up the case of Craigdallie v. Aikman, [FN22] a case bearing in some points a striking analogy to the present. In it both of these conceptions were brought out at different times; and an appeal to the House of Lords drew from Lord Eldon an announcement of the principle which was at once recognized and has since been uniformly accepted as the true governing rule in all cases of this nature.

In the case we speak of, property had been acquired and was held in trust for a congregation forming part of a larger body known as Burgher Seceders, the highest judicatory in the church being the Synod. That body having passed certain resolutions alleged to be a departure from one of the articles of their confession, a minority protested, congregations became divided, and among other cases, the question *705 arose as to which of the two parties in this congregation was entitled to its property. It was made a test case and received the most careful consideration. Upon its first hearing in the Scotch Court of Session, the 'majority (in interest) in the congregation' were held to be entitled. But under the forms of their proceeding the cause came again before the court, and some of the judges being changed, it was now declared that the property was held for a 'society of persons, . . . such persons always . . . continuing in communion with and subject to the ecclesiastical discipline of a body of dissenting Protestants calling themselves the Associate Presbytery and Synod of Burgher Seceders.' The effect of these decisions was to make the question of identity or organic succession, in the one case to attach solely to a majority of the local congregation, in the other to depend upon a continued connection with the general body. On appeal to the House of Lords both of these views were rejected and the following principle, first announced by Lord Eldon, was adopted, viz.: That property conveyed for the use of a society for purposes of religious worship, is a trust, which is to be enforced for the purpose of maintaining that religious worship for which the property was devoted, and in the event of schism (the deed making no provision for such case), its uses are to be enforced, not in behalf of a majority of the congregation, nor yet exclusively in behalf of the party adhering to the general body, but in favor of that part of the society adhering to and maintaining the original principles upon which it was founded.

This case, followed and recognized by that of Attorney-General v. Pearson, [FN23] has been accepted in all cases of this nature in England, Scotland, and America.

The principle of this case, so simple and just in itself, was yet not so fully or clearly expressed as to remove all difficulty in its application. Several important questions were at once presented; and,

1. To the maintenance of which of the various principles *706 of the society does the implied trust especially refer? Does it relate mainly to the fundamental doctrines of religious truth, the standards of faith, or does it embrace equally all the principles of doctrine, form, and order? Does it bind the society permanently and exclusively to the same principles and to the same connections with and relations to other societies which existed at the date of conveyance, or does it recognize the right of change inherent in the body by general consent, or perhaps incorporated as an original principle in the fundamental law of the organization? Does it recognize that by unforeseen events beyond the control of the society, its original connections may be changed or broken up without its own act or assent? All of these questions under varying forms and circumstances have been presented, and discussed, and adjudged; and this general principle may be considered as settled, viz.: That where property is conveyed 'for the use' or 'benefit' of a designated 'church,' or 'religious society' (the deed containing no special limitations), such property, by operation of the law of trusts, is held for the use of such society, subject to the entire body or system of doctrines, rules, or principles, whether of faith, form, or order, held and recognized by the society at the time of conveyance; that it binds such society to a permanency of religious faith and a continuance of subsisting connections, or recognizes a right of change in doctrine, or a lawful severance of its connections, so far and no farther than it is bound to or released from such permanent or continuing state, by or in accordance with the fundamental laws of the organization; that wherever the use or control of property depends upon adherence to or a change from original doctrines, or upon a continuance or severance of connections with a particular judicatory, or upon an alleged title to office in the church, or upon any act, judgment, or proceeding of an ecclesiastical tribunal, in every case the exclusive standard by which the conflicting claims are to be judged is the CONSTITUTION of the church itself.

These views are recognized and brought out with force in *707 the American cases of Gibson v. Armstrong and Sutter v. The First Reformed Church. [FN24]

2. Another question, more serious and difficult than the last, remained in determining the application of this rule of the law of trusts, viz.: In these matters of religious doctrine, discipline, and church order, who is to be the judge? Who has the right to say conclusively, in case of controversy, that one or the other party has departed from the doctrines of the church? Who shall determine upon the validity of an act or judgment of a church court; upon the status of a member or officer; upon the legality or otherwise of a voluntary or enforced severance of a part from the body of the general organization?

This question was promptly raised upon the earliest application of the principle stated by Lord Eldon, and has been decided with a frequency and uniformity rarely met with upon any important question. Yet the court below assumed that these matters, being of an ecclesiastical nature or arising upon a construction of the law of the church, are subject to exclusive cognizance and jurisdiction by the ecclesiastical courts, whose judgments thereon must be accepted as conclusive by the civil courts. The position assumed does not stop with assering that, if the decision of the question in controversy has been committed by the constitution of the church to a particular tribunal, or if the act or judgment in question has been performed by such tribunal in pursuance of a power vested in it by the constitution, in such case the act or judgment is conclusive on the civil court. It asserts an exclusive right in the General Assembly to determine conclusively the extent of its own powers and duties under the constitution; to determine in every case, whether it has itself violated the constitution or abandoned the principles of the faith. It asserts that the announcement of a particular doctrine or the imposition of a duty on the church, or *708 the performance, rendering, or approval of an act or judgment by the General Assembly, is itself a conclusive evidence, probatio probata, that such doctrine or duty, act or judgment, has been imposed, rendered, or performed, in accordance with the constitution of the church; and that the church itself and the civil courts have no power to examine or question what has been so settled by the supreme tribunal of the church.

If the principle of the decree herein is affirmed, it sweeps away all limitations imposed upon church courts by their fundamental laws and renders it impossible that churches can be organized under rules or limitations which shall bind the judicatories of their own creation.

Hitherto the question has received but one solution. It devolves upon this court authoritatively to settle it. Let us examine the history of judicial decision.

In Galbraith v. Smith [FN25] (the first case coming before the Scotch Court of Session after the judgment of the House of Lords in Craigdallie v. Aikman), the position contended for by the appellees was accepted and announced from the bench. Lord Meadowbank, construing that judgment, said that it would have been competent for the party adhering to the Synod to have shown as matter of fact that it having been a fundamental rule of the sect that in the supreme judicatory alone was vested the power of determining all questions of doctrine and discipline, so the judgment of the Synod was to be received as probatio probata of their adherence to their original principles; it being incompetent for the civil court to review the decisions in such matters of the ecclesiastical judicatories. He then stated as a general proposition, that

'It is a legal object of such a trust, that it may profess to be constituted with a view to perpetuity, even by placing in the hands of a recognized body the right of controlling and modifying those rules and regulations in conformity with the fundamental principles of the sect of dissenting Christians to which *709 those constituting the trust may have professed to adhere; and that the civil court will not take cognizance of the proceedings and determinations of those judicatories, as they may be termed, upon matters of doctrine and discipline, but hold them to be probatio probata of the principles of the sect.'

This was manifestly throwing the question back upon the doctrine of the second judgment in the Craigdallie case. Accordingly, on the next occasion calling for a review of the principle by the Court of Session, the view taken in Galbraith v. Smith was overruled. The court say that the principle of the judgment of the House of Lords had been 'wholly misunderstood;' that Lord Meadowbank's view 'takes adherence to the Synod as conclusive and excludes inquiry into the original opinions or doctrines, if opposed to the declaration made by the Synod, as to what those doctrines are, and is precisely the error in the Craigdallie case again brought out and in more absolute terms.' The error, the court say, was 'founded on the assumption that connection with a dissenting Synod was as decisive a criterion by which to determine property and civil rights as adherence to the established church. The mistake consisted in taking as decisive what was only one element, and it might be an element of no importance in the inquiry, what was the original trust and which party maintains the principles;' and in answer to the suggestion that 'submission to the judicatories may be one of the original principles,' the court say 'then you must prove that. It is not probatio probata. It is not even a presumption of law.' [FN26]

The cases above referred to, relate especially to the power of the civil courts, to examine and decide (as matter of fact) upon questions of doctrinal differences where rights of property depend upon adherence to doctrines. But the great contest for complete ecclesiastical independence and exclusive jurisdiction was made upon another point, viz.: as to the right of the civil court to examine and pass directly upon the title of persons claiming official status in the church, or *710 upon the validity of proceedings in church courts, where civil rights may depend on such status, or may be affected by such proceedings. This contest, beginning about the year 1838, in the Scotch Court of Session, several times brought before the House of Lords, may be considered as terminating in the celebrated Cardross Case. [FN27] Its great importance and the deep interest excited by it, occasioned the most profound investigation into the principles which should regulate civil courts in their relations to the churches; and the results have been valuable to the law. An examination of them will show these general principles to have been settled:

i. That the church (non-established) stands before the law, in relation to all civil interests acquired or claimed by it, precisely as every other voluntary society for moral or scientific or other purposes, subject in the same manner and extent to the jurisdiction of civil authority.

ii. That in so far as the law can regard them, the powers of the church judicatories are derived solely from the consent of the members of the church, as expressed in their fundamental law; that they are not 'courts' and have no 'jurisdiction' in the strict sense of the terms--these terms necessarily implying the existence of a power conferred by and vested in functionaries of the state. They are not 'courts' except of the parties' own choosing.

iii. That in so far as the fundamental laws of the church confer powers on its tribunals, the civil courts will recognize them, and where civil rights are involved, will give effect to their exercise without inquiring into the motives or grounds of action of the ecclesiastical tribunal; and will enforce with the same respect the action of the inferior tribunal acting within its sphere, as they will that of the supreme court of the church.

iv. That the jurisdiction of civil courts being confined to 'civil actions,' they may not take cognizance of purely spiritual or ecclesiastical questions, as such; just as they may not take cognizance of any moral or scientific questions for the purpose of determining upon their abstract truth; but that in every case *711 of controversy, where a right of property depends upon an adherence to religious doctrine, or is affected by an act or judgment of an ecclesiastical tribunal, the civil court will examine into such doctrine as matter of fact, for the purpose of determining which party maintains the original principles of the society, and will examine into the act or judgment of the ecclesiastical court, for the purpose of determining whether it is in contravention of the fundamental law of the church, or without authority from it; in which latter case, such act or judgment will be esteemed void and be disregarded. In these several cases the exclusive standard of judgment is the CONSTITUTION of the church itself.

These principles, first announced with reference to the high claims of the Established Church of Scotland, were afterwards repeated with equal deliberation in reference to the Free Church, which having withdrawn from the Establishment on account of these decisions, reasserted in its voluntary character its claim to ecclesiastical independence. A reference to the Cardross Case will show how it was presented, and met. A Presbytery having tried a minister for misconduct, adjudged (partially) against him; and the Synod on appeal reversed its action. Upon appeal to the General Assembly, that body took up the case de novo and passed a sentence more extensive than that of the Presbytery. The minister, whose civil rights were affected by this judgment, applied to the civil court for its 'reduction,' on the ground that the Assembly being confined to an appellate power by the constitution of the church, had transcended its authority by passing an original sentence upon him. The General Assembly among others filed the following pleas:

1st. 'That the sentences complained of, being spiritual acts, done in the ordinary course of discipline of a Christian Church tolerated and protected by law, it is not competent for the civil court to reduce them, and the actions should therefore be dismissed.'

2d. 'As the actions, so far as they conclude for a reduction of the sentences complained of, do not relate to any question of civil right, they cannot be maintained.'*712

Upon argument and a full review of all the cases, both of these pleas were overruled. The cause did not reach a hearing upon the pleas touching the actual powers of the Assembly under the constitution; but those decided are alone important in this discussion. [FN28]

If then the controlling principles of law touching this matter have been correctly stated, it follows in this Walnut Street Church case, that if it shall appear that the majority have abandoned, while the minority adhere to the original principles of the society, the judgment must go in favor of the minority.

The General Assembly is not excepted from the obligation of the rule. If a doubt upon this point should otherwise exist, it would be removed by a consideration of the commission under which alone its members act and hold their places, and by which they are severally restricted to sit, consult, vote, and determine, on all things that may come before that body 'according to the principles and constitution of this church, and the word of God.' Even those general clauses in the Form of Government touching the powers of Assembly to 'decide controversies,' and to 'suppress schismatical contentions and disputations,' are to be exercised not wantonly, but in accordance with the fixed provisions elsewhere stated. They contemplate controversies, contentions, and disputations, to which there may be parties and proceedings, by which these matters may be constitutionally brought before the Assembly.

The learned counsel then having stated in detail the particulars of the schisms in the Presbyterian Church, set *713 out generally in the Reporter's statement of the case, went into a very interesting examination of the constitution and fundamental principles of that church, and sought to show that those Declaratory Statements or Resolutions 'whereby the church had pledged herself, in her ecclesiastical capacity, to an unabated loyalty to the civil government, and one great section of the church was prejudged as traitors,' were in violation of its fundamental principles; and a departure from those sacred standards which declare that the 'visible church, which is also catholic or universal (and not confined to one nation as before, under the law), consists of all those throughout the world that profess the true religion' whereof 'there is no other head but the Lord Jesús Christ;' [FN29] that the Assembly in making such a departure had imposed upon ministers, members, and judicatories, the duty of resistance to its edicts; and that the Presbytery of Louisville, in its 'Declaration and Testimony'--its Declaration against the principle of these deliverances; its Testimony of refusal to 'sustain or in any manner assist in the execution' of them, stood immovably on the constitution.

The conclusion to which this court arrived, as to its competence to pass in this case on such questions, renders that able argument, so interesting in some aspects, comparatively without interest here, on which account it is omitted.

Messrs. B. H. Bristow and J. M. Harlan, contra.

The case having been held under advisement since the last term, when the argument was had,

Mr. Justice MILLER now delivered the opinion of the court.

This case belongs to a class, happily rare in our courts, in which one of the parties to a controversy, essentially ecclesiastical, resorts to the judicial tribunals of the State for the maintenance of rights which the church has refused to acknowledge, or found itself unable to protect. Much as such dissensions among the members of a religious society should *714 be regretted, a regret which is increased when passing from the control of the judicial and legislative bodies of the entire organization to which the society belongs, an appeal is made to the secular authority; the courts when so called on must perform their functions as in other cases.

Religious organizations come before us in the same attitude as other voluntary associations for benevolent or charitable purposes, and their rights of property, or of contract, are equally under the protection of the law, and the actions of their members subject to its restraints. Conscious as we may be of the excited feeling engendered by this controversy, and of the extent to which it has agitated the intelligent and pious body of Christians in whose bosom it originated, we enter upon its consideration with the satisfaction of knowing that the principles on which we are to decide so much of it as is proper for our decision, are those applicable alike to all of its class, and that our duty is the simple one of applying those principles to the facts before us.

The first of the points arising in the case concerns the jurisdiction of the Circuit Court, which is denied; first, on the ground that the plaintiffs have no such interest in the subject of litigation as will enable them to maintain the suit, and, secondly, on matters arising out of the alleged proceedings in the suit in the Chancery Court of Louisville.