Bradford v. Cary

5 Me. 339 | Me. | 1828

These arguments having been made in writing, in the last vacation, the opinion of the court was now delivered by

Weston J.

The-question presented for our determination is, whether the plaintiff, at the time his vote was refused by the defendant, was or was not a member of the first parish in Turner. This will depend upon the question, whether he ever became a member of the universalists’ society in that town, and whether if so, his con-nexion with that society had ceased, by his return to, and becoming a member of, the first parish.

Counties, towns, and parishes, whether poll or territorial, are corporations instituted for public purposes, civil and ecclesiastical; and have ever been considered as subject to be arranged and modified by the-legislative power, at its pleasure. Legislative authority to this extent, is not controverted in the case of Dartmouth College 4. Wheat. 518. It operates isyon persons of full age, without their choice or election ; and sometimes against their will. There is no objection then to its being extended to minors. It was so in fact ir. territorial, and might be in poll, parishes, if the legislature deemed it expedient thus to prescribe. Indeed they might incorporate a parish, to consist of certain persons named, and their children, from generation to generation, residing, as convenience might require, within certain limits. Their minor children, and such as might afterwards be born, would find themselves in no other condition, than that which is common to all native citizens of Massachusetts, every one of whom is bora connected with some religious society. The rights of conscience, and the collateral right of having his ministerial taxes ultimately appropriated to the support of a religious teacher of his choice, upon whose instructions he attends, were secured in that Commonwealth by the constitution. Why then may we not consider all the members of Chandler Bradford’s family as created members of the universalists5 society? Unless this was intended, why use the term family at all? There is no analogy between this case and those provided by the pauper laws, where derivative settlements are necessary to prevent a separation between husband and wife, and between parents and their minor children. The father and head of a family, being constituted a member of a religious society, his wife and minor children, every reasonable indulgence for conscience sake being as necessary in the one case as in the other, would be as much under his direction, as to where they should worship, as if his family had been named. His liability to be taxed, according to the laws of Massachusetts, for the polls of his male children, from sixteen to twenty-one, would be the same. It is a tax imposed not on them, but on him, for the income he is supposed to derive from their earnings ; which is as proper a subject of taxation, as income derived from proper - ty or other sources.

The families of the corporators named, may be presumed to have been included in the act at their solicitation, as a privilege to them ; and in thus choosing for their wives and children, they exercised a prerogative, incident to the relation in which they stood. Their wives had voluntarily united their destiny with their husbands j and the Author of their being had confided their offspring to their cares and had implanted in their bosoms natural affection, to quicken them in the performance of their parental duties. That the corporators named, were solicitous that each member of their families should participate in the privileges derived from the act, may well be presumed from the desire they must have, felt that they should continue to unite with them in public worship; assuming as they did, that they would most probably espouse and profess the religious opinions, in which they had been educated. That this was their intention, as well as that of the legislature, is further supported by the consideration, that the only mode provided by the act, or by any other law then existing, by which any person could become a member of that society, was limited in its operation to the term of one year, after the passage of the act. If the minor children of the persons named were not incorporated, all who became of age after the year, would remain without any connection with the religious society of their parents, in which they were brought ■ up; and whatever might be their option, there existed no legal mode, by which they could be received as such. There was no occasion for a derivative, qualified, and restricted membership. If the family were made members, it must have been with all the privileges appertaining thereto; a right to continue such, and on the part of the male members, to act and vote, upon arriving at the legal age ; a right inchoate in minority, consummate at majority. It would be most extraordinary to regard them as members, until the moment arrived when they could act in that capacity, and to seize ■upon that moment, as the period when their membership should cease and be dissolved.

.If this reasoning be correct, the plaintiff, when he became of age, was a memb er of the upiversalists’ society, whose faith he continued to profess. Has he, since that time, ceased to be a member, by his own act, or by operation of law ? Until 1811, when the act respecting public worship and religious freedom passed, nO mode existed in his case, except the special one in the act establishing the society, which expired in a ye'ar from its date, of which he could avail himself to dissolve the connexion. The condition in which he stood, up to that period, was no greater restriction upon the freedom of his will, or of his right of election, when he attained to years of maturity, than if he had then by law become a member of the territorial1 parish. By the general law of 1811, a mode of changing his parochial relations was established ; but of that mode he has not availed himself. His attending the congregational meeting, buying a pew in their meeting house, or submitting to be taxed by that society, was not by law equivalent to the mode prescribed. That was not stated by way of example, not inconsistent with other evidence, but was the grant of a new privilege to be exercised in the manner appointed, intended to avoid uncertainty, and to give seasonable notice to all concerned. it is not pretended that the plaintiff has been received a member of the first parish, in conformity with the provisions of the parish act of Maine. It results therefore, that in April 1825, the plaintiff was a member of the universalist society, and his vote in the first parish legally and properly refused by the defendant.

There is nothing in the case of Lord v. Chamberlain, 2. Greenl. 67, inconsistent with this opinion. That case does not apply to a minor, when he arrives at full age, who, by an act of incorporation, has been made a member of a poll parish.

Plaintiff nonsuit