Pennsylvania. Supreme Court.

Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 4) online

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*5601 ^ an ' e< l ua l * delegation of bishops and elders, from each
J presbytery, in the following proportions, viz., each presby-
tery consisting of not more than twenty-four ministers, sends one
minister and one elder : and each presbytery consisting of more than
twenty-four ministers, sends two ministers and two elders ; and in
the like proportion for every twenty-four ministers in any presby-
tery.' The delegates so appointed, are styled Commissioners to the
General Assembly.

" The General Assembly is the highest judicatory of the Presby-
terian Church. It represents in one body, all the particular
churches of this denomination of Christians.

" In relation to this body, the most important undoubtedly are the
various presbyteries ; for, as was before said, ' the General Assem-
bly consists of an equal delegation of bishops and elders from each
of the presbyteries.' If the presbyteries are destroyed, the Gen-
eral Assembly falls, as a matter of course, as there would no longer
be any constituent bodies in existence from which delegates could
be sent to the General Assembly.

" The presbyteries are essential features in the form of govern-
ment in another particular, for before any overtures or regulations
proposed by the General Assembly to be established as constitu-
tional rules, can be obligatory on the churches, it is necessary to
transmit them to all the presbyteries, and to receive the returns of
at least a majority of them in writing, approving thereof.

" A synod, as has been before observed, is a convention of
' bishops and elders' within a district, including at least three
presbyteries. The synods have a supervisory power over presby-
teries, but unlike presbyteries, as such they are not essential to the
existence of the General Assembly. If every synod in the United
States were exscinded and destroyed, still the General Assembly
would remain as the highest tribunal in the church. In this par-
ticular there is a vital difference between presbyteries and synods.
The only connection between the General Assembly and the synod
is, that the former has a supervisory power over the latter.



1839.] OF PENNSYLVANIA. 560

[Commonwealth v. Green.]

" Having thus given you an account of such parts of the form
of church government as may, in some aspects of the cause, be
material, I shall now call your attention to the matter in issue.

"This proceeding is what is called a 'quo warranto.' It is
issued by the Commonwealth, at the suggestion of James Tod and
others, against Ashbel Green and others, to show by what authority
they claim to exercise the office of trustees of the General Assembly
of the Presbyterian Church in the United States of America. I
must here remark, that it is not only an appropriate, but the best
method of trying the issue in this cause.

" It is admitted, that until the 24th of May 1838, the respond-
ents were the rightful trustees ; but it is con-tended by the relators,
that on that day, the 24th of May 1838, in pursuance of the act of
incorporation, the General Assembly of the Presbyterian Church
*changed one- third of the trustees, by the election of the r^rci
relators in the place and stead of the respondents.

" On the 28th of March 1799, the legislature of Pennsylvania
declared Ashbel Green and seventeen others (naming them), a body
politic and corporate, by the name and style of Trustees of the
General Assembly of the Presbyterian Church in the United States
of America.

" The 6th section provides that the corporation shall not, at any
time consist of more than eighteen persons ; whereof, the General
Assembly may at their discretion, as often as they shall hold their
sessions in the State of Pennsylvania, change one-third in such a
manner as the General Assembly may seem proper.

" It was the intention of the legislature, by the act of incorpora-
tion to provide for the election of competent persons, who, as an
incorporated body, might with more ease and in a better manner,
manage the temporal affairs of the church. It is only in this aspect
that we have cognisance of the case.

" In this country, for the mutual advantage of church and state,
we have wisely separated the ecclesiastical from the civil power.
The court has as little inclination as authority to interfere with the
church and its government, farther than may be necessary for its
protection and security. It is only as it bears upon the corporation,
which is the creature of the civil power, that we have any right to
determine the validity, or to construe the acts and resolutions of the
General Assembly.

" Although neither the members of the General Assembly, as
such, nor the General Assembly itself, are individually or aggre-
gately members of the corporation, yet the assembly has power,
from time to time, as they may deem proper, to change the, trustees,
and to give special instructions for their government. They stand
in the relation of electors, and have been properly denominated in



561 SUPREME COURT [March Term,

[Commonwealth v. Green.]

the argument, quasi corporate. The trustees only are tne corpora-
tion by express words of the act of assembly.

" Unhappily, differences have arisen in the church (the nature
of which it is not necessary for us to inquire into), which have
caused a division of its members into two parties, called and known
as the old and new school. These appellations we may adopt for
the sake of designating the respective parties, the existence of which
will have an important bearing on some of the questions involved
in this important cause. It gives a key to conduct, which it would
be otherwise difficult to explain.

" The division continued to increase in strength and virulence
until the session of 1837, when certain decisive measures, which
will be hereafter stated, were taken by the General Assembly,
which at this time was under the control of members, who sympa-
thize (as the phrase is), with the principles of the old school.

" At an early period the Presbyterian Church, at their own sug-

*"6 r 'l gestion, *formed unions with cognate churches, that is, with

** churches whose faith, principles and practice, assimilated

with their own, and between whom there was no essential difference

in doctrine.

" On this principle a plan of union and correspondence was
adopted by the assembly in 1792, with the General Association of
Connecticut ; with Vermont in 1803 ; with that of New Hampshire
in 1810 ; with Massachusetts in 1811; with the Northern Asso-
ciate Presbytery of Albany in 1802 ; and with the Reformed Dutch
Church and the Associate Reformed Church in 1798.

" These conventions, as is stated, originated in measures adopted
by the General Assembly in 1790 and 1791. The delegates from
each of the associated churches not only sat and deliberated with
each other, but also acted and voted by virtue of the express terms
of the union.

" In further pursuance of the settled policy of the church to ex-
tend its sphere of usefulness, in the year 1801, a plan of union
between the Presbyterians and Congregationalists was formed.

" The plan, which was devised by the fathers of the church to
prevent alienation and to promote harmony, was observed by the
General Assembly without question by them, until the year 1835,
a period of thirty-four years.

" At this time it was resolved by the General Assembly, that
they deemed it no longer desirable that churches should be formed
in their Presbyterian connection, agreeably to the plan adopted by
the Assembly and the General Association of Connecticut, in 1801.
They therefore resolved that their brethren of the General Associa-
tion of Connecticut be, and they hereby are, respectfully requested
to consent that the said plan shall be, from and after the next meet-
ing of that association, declared to be annulled. And also resolved,



1839.] OF PENNSYLVANIA. 562

[Commonwealth v. Green.]

that the annulling of said plan shall not in any wise interfere with
the existence and lawful association of the churches which have been
already formed on this plan.

" To this resolution no reasonable objection can be made, and if
the matter had been permitted to rest here, we should not have
been troubled with this controversy. It had not then occurred to
the assembly that the plan of union was unconstitutional. The
resolutions are predicated on the belief that the agreement or com-
pact was constitutional. They request that the association of
Connecticut would consent to rescind it. It does not seem to have
been thought that this could be done without their consent. And
moreover, the resolution expressly saves the rights of existing
churches which had been formed on that plan.

" I must be permitted to regret, for the sake of peace and har-
mony, that this business was not suffered to rest on the basis of
resolutions which breathe the spirit of peace and good feeling. But
unfortunately the General Assembly, in 1837, which was then
under another influence, took a different view of the question.

" ' *As the ' Plan of Union' adopted for the new settle- r^coo
ments in 1801, was originally an unconstitutional act on L
the part of that assembly, these important standing rules having
never been submitted to the presbyteries, and as they were totally
destitute of authority as proceeding from the General Association
of Connecticut, which is invested with no power to legislate in such
cases, and especially to enact laws to regulate churches not within
her limits : and as much confusion and irregularity have arisen
from this unnatural, unconstitutional system of union, therefore it
is resolved, that the act of the Assembly of 1801, entitled a ' Plan
of Union,' be, and the same is hereby abrogated.' See Digest, p.
297-99.

" The resolution declares the plan of union to be unconstitutional.
1st. Because those important standing rules, as they call them, were
not submitted to the presbyteries ; and secondly, because the Gen-
eral Association of Connecticut was invested with no power to
legislate in such cases, and especially to enact laws to regulate
churches not within their limits.

" The court is not satisfied with the force of these reasons, and
do not think the agreement, or plan of union, comes within the words
or spirit of that clause in the constitution which provides, that be-
fore any overture or regulations shall be proposed by the General
Assembly to be established as constitutional rules shall be obligatory
on the churches, it shall be necessary to transmit them to all the
presbyteries, and to receive the returns of at least a majority of
them approving thereof. Nor is it in the opinion of the court, in
conflict with the constitution before its amendment in 1821, which
provides that no alteration shall be made in the constitution, unless



563 SUPREME COURT [March Term,

[Commonwealth v. Green.]

two-thirds of the presbyteries under the care of the General As-
sembly propose alterations or amendments, and such alterations and
amendments are agreed to by the assembly.

" It was a regulation made by competent parties, and not in-
tended by either as a constitutional rule ; nor was it obligatory on
any of the Presbyterian churches within their connection. Those
who were competent to make it, were competent to dissolve it, with-
out the assent of the presbyteries, as such, which could not be done,
were it a constitutional rule, within the meaning of the constitution.
Whether one party may dissolve it without the consent of the other,
it might be unnecessary to decide. My opinion is that they can.
The plan of union is intended to prevent alienation, and to promote
union and harmony in the new settlements.

" It is not a union of the Presbyterian Church with a Congrega-
tional church or churches, but it purports to be, and is a plan of
union between individual members of the Presbyterian and Congre-
gational churches, in that portion of the country which was then
denominated the new settlements. It is advisory and recommenda-
tory in its character; has nothing obligatory about it. A Con-
gregational church, as such, is not by force of the agreement
*.fi4-1 incorporated with *the Presbyterian Church. It has no
J necessary connection with it; for it is only when the
congregation consists partly of those who hold the Congregational
form of discipline, and partly of those who hold the Presbyterian
form, and there is an appeal to the presbytery (as there may be in
certain cases), that the standing committee of the Congregational
church, consisting partly of Presbyterians and partly of Congrega-
tionalists, may, or shall attend the presbytery, and may have the
same right to sit and act in the presbytery as a ruling elder. And
whatever may have been occasionally the instances to the contrary,
this I conceive to be the obvious construction of the regulation.
That part of the agreement was intended as a safeguard or protec-
tion of the rights of all the parties to be affected by it, without any
design to confer upon the standing committee all the rights of a
ruling elder.

" I view it as a matter of discipline, and not of doctrine, the
effects of which is to exempt those members of the different commu-
nions, who adopted it from the censures of the church to which
they belong, and particularly the clerical portion of them.

" The court is also of the opinion, that after an acquiescence of
nearly forty years, and particularly after the adoption by the pres-
byteries of the amended constitution of 1821, the plan of union is
not now open to objection. The plan has been recognised by the
presbyteries at various times, and different manners, under the old
and amended constitution. It has been acted on by them and the
General Assembly in repeated instances, and is equally as obliga-



1839.] OF PENNSYLVANIA. 564

[Commonwealth . Green.]

tory as if it had received the express sanction of the presbyteries in
all the forms known to the constitution.

" That acquiescence gives right, is a principle which we must
admit. The constitutionality of the purchase and admission of
Louisiana as a member of the union, was doubted by some of the
wisest heads and purest hearts in the country, but he would be a
very bold man, indeed, who would not deny that state, and Missis-
sippi, Arkansas and Missouri, to be members of the confederation.
In the memorable struggle for the admission of Missouri into the
union, this objection was never taken.

"Nor am I 'satisfied with the second reason, that the General
Association of Connecticut was invested with no power to legislate
in such cases, and especially to enact laws to regulate churches not
within their limits. Although the General Assembly had the
right to annul the plan of union, without the assent of the General
Association of Connecticut, yet I must be permitted to say, that
after having acted on the plan, and reaped all the advantages of it,
it is rather discourteous, to say the least of it, to attempt to abro-
gate it without the consent of the other party. Although the
association may be an advisory body, yet it does not appear that
any difficulty has been started by them, or by the churches undei
their control. All parties acquiesced in it for thirty-six years, and
it would be too *late for either now to object to its valid- r*c^c
ity. Nor is there any thing in the idea, that they have no "
power to regulate churches not within their limits. This is a mat-
ter of consent, and there is nothing to prevent churches in one
state, from submitting themselves to the ecclesiastical government
of churches located in another state. The Presbyterian Church
has furnished us with repeated examples of this kind.

" So far from believing the plan of union to be unconstitutional,
I concur fully with one of the counsel, that confined within its
legitimate limits, it is an agreement or regulation, which the Gen-
eral Assembly not only had power to make, but that it is one which
is well calculated to promote the best interests of religion.

" If, as is stated, the standing committee of Congregational
churches have claimed and exercised the same rights as ruling elders
in presbyteries, and in the General Assembly itself, it is an abuse
which may be corrected by the proper tribunals ; but surely that
is no argument, or one of but little weight, to show that the plan
of union is unconstitutional and void.

" Although in the opinion of the court, the assembly have the
right to repeal the Plan of Union without the consent of the
General Association of Connecticut, yet it was unjust to repeal it,
without saving the rights of existing ministers and churches.

" But whether the Plan of Union be constitutional or not, is only



565 SUPREME COURT [March Term,

[Commonwealth . Green.]

material so far as it is made the basis of some subsequent resolutions
to which your attention will now be directed.

" At the same session, and after failure of an attempt at com-
promise, the character of which has been the subject of much
comment, the General Assembly resolved, that by the abrogation
of the Plan of Union of 1801, the synod of the Western Reserve
is, and is hereby declared to be, no longer a part of the Presbyterian
Church.

" ' Resolved, That in consequence of the abrogation by this
General Assembly of the Plan of Union of 1801, between it and
the General Association of Connecticut, as utterly unconstitutional,
and therefore null and void from the beginning, the synods of
Utica, Geneva and Gennesee, which were formed and attached
to this body, under and in execution of said ' Plan of Union,' be,
and are hereby declared to be, out of the connection of the
Presbyterian Church in the United States of America, and that
they are not, in form or in fact, an integral portion of said
church.'

" These resolutions refer only in name to the four synods, and if
we were called on for the construction alone, it might be well doubted
whether they were intended, or could be made to include, the pres-
byteries within their limits, the constituents or electoral bodies of
the General Assembly itself. I should be inclined, for the purpose
of protecting their rights from a resolution so penal in its character,
to say that they were not included, neither in the spirit nor the
words of the resolution. But this construction we are prevented
*^fifi"l *f rom gi y i n g by their declarative resolution. It is there in
- effect said, that it is the purpose of the General Assembly
to destroy the relations of all said synods and all their constituent
parts to the General Assembly and to the Presbyterian Church in
the United States. In the fourth resolution it is declared, that
any presbytery within the four synods, being strictly Presbyterian
in doctrine and order, who may desire to be united with them, are
hereby directed to make application, with a full statement of their
case, to the next General Assembly, which will take proper order
thereon.

" There is no mistaking the character of these resolutions. It
is an immediate dissolution of all connection between the four
synods and all their constituent parts, and the General Assembly.
They are destructive of the rights of electors of the General
Assembly. The connection might be renewed, it is true, by each of
the presbyteries making application to the next General Assembly,
but they are at liberty to accept or refuse them, provided they, the
General Assembly, deem them strictly Presbyterian in doctrine and
order. As they had the right to admit them, they had the right,



1839.] OF PENNSYLVANIA. 566

[Commonwealth v. Green.]

also, to refuse them, unless in their opinion, they were strictly
Presbyterian in doctrine and order.

" By these resolutions, the commissioners, who had acted with the
General Assembly up to that time, were deprived of their seats.
At the same time, four synods, with twenty-eight presbyteries, were
cut off from all connection with the Presbyterian Church. The
General Assembly resolved, that because the plan of 1801 was
unconstitutional, those synods and their constituent parts are no
longer integral parts of the Presbyterian Church.

" You will observe, that I have already said the Plan of Union
is constitutional. That reason therefore fails. They have resolved
that it is not only unconstitutional, but that it is null and void, from
the beginning. Instead of a prospective, they have given their
resolutions a retrospective effect, the injustice of which is most
manifest.

" But admitting that the Plan of Union is unconstitutional, null
and void, from the beginning, I cannot perceive, what justification
that furnishes for the exscinding resolutions. The infusion of Con-
gregationalists with the presbyteries, or the General Assembly
itself, does not invalidate the acts of the General Assembly. They
had a right notwithstanding the charter which recognises elders
and ministers as composing the Presbyterian Church, to perform
the functions committed to them by the constitution. And among
them to establish and divide synods, to create presbyteries, as
in her judgment the exigencies of the church might demand.

" Accordingly we, find that the four synods, and all the presby-
teries attached to them, have been formed since the year 1801.
The assembly create the synods, and the synods the presbyteries,
sometimes the assembly creates the presbyteries a course pursued
*with some of the presbyteries, which have been exscinded. r*cfi>r
They have been established since, but this is no evidence ^
that the four exscinded synods were formed and attached to the Gen-
eral Assembly under, and in execution of, the Plan of Union. The
compact, as has been before observed, was intended for a different
purpose, and imposed on the Presbyterian Church no obligation to
admit churches formed on the plan as members. It was a voluntary
act, and not the necessary result of the agreement ; nor does it
appear that the presbyteries were formed and incorporated with the
church on any other terms or conditions than other presbyteries,
who were in regular course taken into the Presbyterian connection.

" But, gentlemen, when resolutions of so unusual a character, so
condemnatory, and so destructive of the rights of electors, the con-
stituents of the assembly itself, are passed, we have a right to
require that the substantial forms of justice be observed. But so
far from this, the General Assembly, in the plenitude of its power,
has undertaken to exclude from all their rights and privileges

4 WHARTON 36



567 SUPREME COURT [March Term,

[Commonwealth v. Green.]

twenty-eight presbyteries, who are its constituents, without notice,
and without even the form of trial. By the resolutions, the com-
missioners, who had acted as members of the General Assembly for
two weeks, were at once deprived of their seats. Four synods,
twenty-eight presbyteries, five hundred and nine ministers, five
hundred and ninety-nine churches, and sixty thousand communi-
cants, were at once disfranchised and deprived of their privileges
in this church.

" This proceeding is not only contrary to the eternal principles
of justice, the principles of the common law, but it is at variance
wiih the constitution of the church.

" This proceeding is not in the nature of a legislative, but it is
a judicial proceeding to all intents and purposes. It is idle to deny
that the presbyteries within the infected districts, as they are called,
were treated as enemies and offenders, against the rules, regulations,
and doctrines of the church. If there is any thing that a man
values, it is his religious rights.

" And of this opinion were the General Assembly themselves ;
for, only a few days before they came to the following resolutions :

" ' Resolved, 1. That the proper steps be now taken to cite to
the bar of the next assembly such inferior jndicatories as are charged
by common fame with irregularities.

"'2. That a special committee be now appointed to ascertain
what inferior judicatories are thus charged by common fame, pre-
pare charges and specifications against them, and to digest a suita-
ble plan of procedure in the matter ; and that said committee be
requested to report as soon as practicable.'

" Nothing further appears to have been done in this matter in
the General Assembly, for, after failure of the attempt at com-
promise, they appear to have discovered a much more expeditious,
if not a more agreeable method of effecting their object.

*5fi81 " *^ ve sa ^ t ^ at exsc i n( ^ n g tne presbyteries without
-" notice, and without trial, was not only contrary to the com-
mon law, but it was contrary to the constitution of the church.



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 4) → online text (page 65 of 74)