32 Ky. 170 | Ky. Ct. App. | 1834
Lead Opinion
delivered the following Opinion of a majority of the Court
This is a proceeding in chancery, in behalf of Gass and Bonta, two seceding members of .the religious society called Shakers, resident at Pleasant Hill, in Mercer county, for the purpose of obtaining a division of the property belonging to the society, and having their shares allotted to them, either upon the principle of ^equality, as two of its covenant members, or according to the amount of property .each carried with him into the society.
The following is the substance of the covenant or articles of association of the society, signed by all its members, and which constitute the terms of the trust, upon which all its property is held — •
The preamble recites that it is their faith and invariable practice, that sc all who come into membership, do ’freely and voluntarily dedicate and devote themselves and all they possess to the service of God forever ; and it being-their faith, that the union and relation of the •church, in one joint interest, is a situation the most acceptable to God, and productive of the greatest good of any state or situation attainable on earth,” therefore covenanted and agreed together by these articles :—
First. To gather themselves together, and be constituted and formed in the order of a churctu
Second. Creates an office of trustee, or agentship, and appoints three of the brethren thereto.
Third. New members allowed to come in, and bring and devote to the joint interest of the church, all such
Fifth. Makes it the duty of the trustee or agentship, a to take charge of all the property dedicated, devoted and given up, as aforesaid, to the joint interest of the church, or that may thereafter-be given or devoted for the benefit of the church.” “ The said joint interest shall be held by them, in the capacity of agents or trustees, and shall be and remain forever, inviolably under the care and oversight and at the disposal of the trustee or agentship of this church, in a continual line of succession ; that the transactions of the trustees in the use and disposal of the joint interest, shall be for the mutual benefit of the church, and in behalf of the whole body, and to no personal end or purpose whatever. But the trustees shall be at liberty, in union with the body, to make presents and bestow deeds of charity upon such as they may consider the real objects that are without.” In case of a vacancy in the trusteeship, the duties to be transferred and devolve on a successor to. be appointed” — so that each individual appointed to the office of trusteeship, shall be invested with the power and authority of managing and disposing of the property and interest of the church.”
Seventh. “ As the whole end and design of our thus' uniting in church relation, is to receive and diffuse the manifold gifts of God, to the mutual comfort and happiness of each other, as brethren and sisters in the gospel, and for the relief of the poor, the widow and
The third article precludes any claim to a division to be made according to what each brought in ; and the single question is, whether the complainants have such an interest in the property of the society, as entitles them to a partition and equal division with the other members. There is not, nor ean there be, any dispute,, that if they obtain such relief, it must be in direct contravention of their express agreement. Nothing can be plainer than the intent to keep the property together in perpetuity, for society purposes, free from any individual claims on the part of its members. The preamble sets out by declaring; “that all who come into membership do freely and voluntarily devote themselves and all they possess to the service of God forever ;” and that the union and relation of the church, in one joint interest, is a situation the most acceptable” &o. and then covenant, in the first place, “to gather themselves together, and be constituted and formed in the order of a churchthat is, into a society by the name of “ a church.” The principal aim, to be gathered from the preamble and this first clause of the covenant, was to build up a religious society, “ devoted to the service of God,” and, as a means of sustaining the society, that “all free will offerings” should be dedicated to the service of God, by being devoted to the uses of the society. The expectation was, that the society was to remain together, and, through a succession of members, continue forever. It could not answer the purposes of such a society, that the property upon which it was to depend for its subsistence, should be the joint and several estate of its members as natural persons, subject at
The claim to partition is asserted ori the ground, that the' beneficial use or proprietorship of the several portions of property belonging to the society, was in such as were covenant members at the dates of their acquisition. That this beneficial use or proprietorship, they necessarily held in their individual, natural, and not their society capacity. Because, not being a corporation, they could not take the use in the latter capacity. That, all the use attempted to be created, except for their individual benefit, is-void for uncertainty, and for the want of cestui que trusts capable of taking such use, arid because such use, if allowed to operate in the manner intended, would create a perpetuity. ‘ That the covenant members, therefore, took the whole estate as cestui'que trusts, by the legal effect of the conveyances and of the terms of the covenant; — or, that it is theirs by way of resulting trust, as the payers of the purchase money, — so much as was intended otherwise than for
In the argument of this case, the attention of counsel was invited to the effect and bearing upon it, of the English statutes of mortmain, of superstitious and of charitable uses ; not that we supposed the case came within the mortmain acts, but that the ground might be thoroughly explored, and that it might be ascertained, if practicable, that it certainly did not. This society of Shakers bears so perfect a resemblance, except in the single particular of not being incorporated, to those religious houses, against alienations to which the mortmain acts were principally levelled, that we wished it to be ascertained, from research, whether that circumstance would except it from the operation of those acts. The result of the investigation has been to prove, that the mortmain acts have always been strictly construed; that they have been confined, exclusively to corporations, and that no other class of cases has ever been held to be embraced by them, as coming within the mischief they were intended to remedy. Even the statute 23 Henry VIII. ch. 10, which sets forth in its preamble, that by reason of feofments made in trust to the use of parish churches, chapels, church-wardens, guilds, fraternities, companies, or brotherhoods, erected or made of devotion, or by common consent of the people, without any corporation, to the use and intent to have obits perpetual, or any continual service of a priest, or to such like uses, intents and purposes, there groweth the same like losses, inconveniences and prejudices, as doth where lands are aliened in mortmain, and renders void all such uses ; even this statute, though passed at a time when obits and priesthood were consistent with the then established religion, was construed not to apply to alienations in trust for good and charitable uses : such as finding a preacher, maintenance of a school, relief of maimed soldiers, sustenance
The use created by the trust for this society, would at no time since the reformation, have been deemed a superstitious use in England.’ For though the courts there disallowed trusts in favor of the catholic or jewish religion, as inimical to the established religion and settled policy of the government, yet trusts in favor of dissenting protestants have always been sustained ancl enforced. With much less reason, therefore, could it be denounced here, as a superstitious use, where we have no established religion, and where, by our consti-' tution, all religions are. viewed as equally orthodox. The recognition which religion generally has obtained from common consent and legislative enactments among us, as a valuable portion of the institutions of our society, must prevent the courts from saying that every religious use is a superstitious use, and, by consequence, must compel them, in fulfilment of the spirit of the constitution, to declare every religious usé a pious use. It is neither for the legislature, nor the judiciary, in this state, to discriminate and say, what is a pious, and what a superstitious use. To'do so, would necessarily infringe upon the great constitutional guarantee of a per-s feet freedom and equality in all religions. There is, therefore, nothing illegal in the uses or purposes for which the society intended to devote its property, as $ religious community ; and the only question is, whe*
Notwithstanding the attention of counsel had been invited to the question, whether the statute 43d of Elizabeth, of charitable uses, was in force here, it was not contended, on the argument, that it was not. Our own reflections have not led to any plausible suggestion, why' it should not be considered as in force. It has never been repealed, nor is there any thing in it of so peculiar and local a character, as to exclude it from adoption, under the rule embracing all English statutes of a general character, prior to 4th James I. It is treated as in force, and has been acted on, in several of the other states.
The establishing of the fact, that it is still in force, relieves us from the necessity of investigating the very vexed question, as to the true extent of chancery power and jurisdiction over charitable uses, independent of that statute. It also relieves us from an. investigation of the question, whether, according to the principles of the common law, there is here a defect or want of cestui que trusts, to take the use according to the apparent intent of the covenant of association ; or whether the uses themselves are of too indefinite and uncertain a character to be enforced, independent of that statute. For, according to a construction of two hundred years, and which has been acted on m numberless cases, under that statute, neither of those circumstances will invalidate the trust, provided it be a charitable use. Where the objects of the charity, and the mode of its application, are pointed out, but not with sufficient distinctness or certainty to be specifically and accurately enfor-' ced, the court will, under its cy pres doctrine, give it effect, as near the general intent as may be ; and even where there is no specific mode or object pointed out, and in some cases where the object fails or ceases to exist, the court will, in respect of the general charitable purpose, devise a mode itself for giving it effect and employing the charitable funds ; supply an original.
The principal, if not the only question, for our determination, is, therefore, whether this be a charitable use, such as a court of chancery would support and enforce under the 43d of Elizabeth. For if it be, it will -conclusively shew, that the court ought not to assist any •one in breaking up and dividing out the charitable fund ; and if it be not, it will go far to sustain the argument, which insists upon a right of partition among the founders of the fund, from the want of capacity, any where, to enforce the trust, according to the intent-ion of its creators.
The idea of this being a charitable use, is met at the threshold, by the statement, that this trust was created for the individual benefit of the members of the society, who themselves created it, and by the assumption of the broad proposition that, that can never be a charitable use which a man creates for his own benefit. It cannot be denied, that, on becoming members, each secured to himself a maintenance during life, and so far secured or reserved a personal benefit. But it does not necessarily follow, that it is not, therefore, a charitable use. It cannot be an objection to the designation of funds or property, for charitable purposes, that the founder secures to himself, with the rest of the community, a right of partaking the benefits of the charity. If the general objects be charitable, his participation in them, on the same footing with others, cannot render them the less so. The granting of property absolutely to the society, with a reservation of the right to participate in the benefits of the whole property of the society during membership, may, or may not, be beneficial to the donor, in a pecuniary or worldly view, according to the amount donated, and the ability of the donor otherwise to provide for himself. If it be conceded, that property given by a stranger, to the use of the society, would be a charitable use, it will be impossible
As was justly remarked at the bar, no stress can be laid on the clause of the covenant giving the trustees power to make charitable donations to strangers, with
It is again objected, that this is no provision for the poor, the maimed, or the decrepid. True it is not in an exclusive degree. But persons of that class may become members, and derive the full benefit of the institution. There is nothing in its ordinances to exclude them. They require nothing, so far as we can ascertain, but the proper religious faith.
• The main purpose of the institution appears to be, to enable a number of persons, of both sexes, to live together, in celibacy, as one community, for the freer and better exercise of their peculiar religious tenets. It bears a strong, if not perfect, resemblance to the convents and nunneries of the catholic faith. If we suppose the reformation never to have taken place, and that the catholic religion had still remained as the established religion, until and after the passage of the 43d of Elizabeth, it could not be doubted, that a fund devoted to the establishment or support of a nunnery or convent, would have been held to be a charitable use, on the same principle that the erection of a chuch, the education of ministers, the support of a parson, and such like, are now so esteemed by the English courts. If a fund were now devoted, in this state, to the erection and support of a nunnery or convent, could we say it was a superstitious use, or that it was not a charitable use? If not, then we cannot discriminate; we are equally bound to say, that a fund devoted to the sustenance of a society of Shakers, is equally a charitable use.
So long as piety is recognised, by common assent, and by the legislature, as a valuable constituent in the character of our citizens, the general law must foster and encourage what tends to promote it. In legal estimation, it must be viewed, as what is not only estimable in itself, but as an appurtenance to the characters of individual citizens, of great value to society, for its ten
In De Pas vs. Da Costa, Ambl. 228, Lord Flardwicke recognised the devise of a fund for the establishment of a jesuba, for instructing people in the Jewish religion, as a charitable bequest ; and though it could not be allowed to take effect in the manner intended, because it was to promote what was contrary to the established religion, yet, being a charitable bequest, it should be appropriated to legitimate objects of charity.
In Waller vs. Childs, Ambl. 524, there was a bequest for the augmentation of the charitable collections, which should thereafter be made for the benefit of poor dissenting ministers of the gospel, living in any of the counties of England; which was established as a charitable bequest, and directed to be paid over to the managers of the funds of three societies, for the support of poor
®° a*s0 ^ IS said, 6 Comyn's Dig. 469, that a gift for the maintenance of a chaplain or priest for divine ser- ^ • yice, is a ciiaritable use, and under the direction of chancery.
In Baptist Association vs. Hart’s Executor, 4 Wheaton, 1, there was a devise to the Baptist Association, that for ordinary meets at Philadelphia, as a perpetual fund for the education of youths for the baptist ministry, and it was held, that the association, not being incorporated, could not take the trust as a society ; that' it could not be taken by the individuals composing the society ; that it was a charity ; that it could not be established by a court of equity, because no legal interest had vested in any trustee by the bequest, and because the bequest was too vague to be claimed by those for whom the beneficial interest was intended — the statute 43d of Elizabeth having been repealed in Virginia- before testator’s death; but, it is distinctly held, that, if that statute had been in force, the charity could and would have been established, and that such a legacy would be sustained in England.
In Beatty et als. vs. Kurtz et als. 2 Peters, a lot of ground in the original plan of an addition to Georgetown, had been marked, “ for the Lutheran church,” and for a number of years had been used by the German Lutherans of the place. This was treated as a dedication of the lot to pious,uses and religions puposes, and though the German Lutherans were not incorporated, and there were no trustees to hold the property, yet it was declared to be such an appointment to charitable uses, as would always have been upheld and enforced by a court of chancery, in England, under the statute 43d of Elizlabeth.
These authorities establish, beyond cavil, that a pious use is considered and treated by the law, as a charitable: use, both in this country and in England. As the general, undeniable, objects of the Shaker association are pious, according to the tenets of their particular reli
This does away all necessity for enquiring more minutely into the character of the association, to ascertain whether it might not properly be classed among those of the charitable order, upon other and distinct grounds. It also obviously renders it wholly useless to go into the • question, principally debated at the bar, whether the trust was void, by reason of its repugnancy to those general principles of law, which inhibit the creation of perpetuities. For when the trust is established to be a charitable use, it is no objection whatever to it, that it is a perpetuity also. The statute 43d of Elizabeth has always been held a pro tanto revocation of the prior statutes of mortmaim ; and though a corporation, according to the principles of the common law, could not be seized to a use, yet the courts have gone so far in support of charities, since the 43d of Elizabeth, as to maintain devises to corporations in trust for charitable uses.
It is also objected to the the validity of this trust, that it is a covenant in restraint of the freedom of religious faith ; that the members of the society are constrained to a continuance in this particular faith, for fear of a forfeiture of their interest in the joint property.— But this idea proceeds upon a total misconstruction of the terms of the trust. As has been before shewn, the trust neither secures nor confers any interest in the property of the society, upon its members as natural persons. They partake of its benefits only by virtue of membership. The donating of property to the society is one thing ; the becoming a member is another. Property may be donated without the donor becoming a member; and membership may be acquired without donation of property. It may be, that continuance in the faith is Becessary to a continuance of membership ; but the change of faith divests no individual interest in the property of the society, for the members hold no interest in the property, in their individual, natural capacity, to be divested. But eyen if the terms .of trust
It is further objected to the validity of this trust, that it is repugnant to the general policy of our law, with regard t.o religious societies, as indicated by the act of 1814, 2 Dig. 1057; which, in authorizing them to hold their churches and adjacent ground, through the intervention of a succession of trustees, limits the quantity so to be. acquired and held, to four acres. But it will be found, on reference to the act, that it contains no language which can be construed as at all restrictive of the general capacity of religious societies to acquire and hold property in other modes than that pointed out by the act. It only restrains the application of the benefit of its own provisions, to an acquisition not exceeding four acres.
We are fully aware of the objections on the score of general policy, that might be urged to the latitudinous recognition here made, of the right of religious societies to acquire property for religious purposes. But the corrective lies not with us. Whenever society shall feel such right as an evil, or it is perceived that'it is about, to becpme an evil to the state, a legislative cor
The result is, that, considering the objects and purposes of the trust under which the property of the Shaker society is held, as legitimate and valid, and that the complainants never had any interest therein by the terms of the trust, except as members and so long at? they remained members, they have no right to the partition which they claim, and, consequently, their cross bill was properly dismissed.
Decree affirmed, with costs.
Dissenting Opinion
not concurring with the Chief Justice and Judge Nicholas, in the foregoing Opinion and Decision, presented his views of the case, and reasons for dissenting, as follows :—
It is thought that the contract entered into by the parties to this suit and others, constituting the society of people denominated Shakers, and located at Pleasant Hill, in Mercer county, is.the creation of a charity, within the meaning of a British statute, yet in force, passed in the forty third year of the reign of Queen Elizabeth. I am of a different opinion; and as the question is one of importance, I deem it proper to state the grounds upon which I dissent from the the conclusions to which the other members of the court have arrived.
It is necessary, in the first place, to ascertain the design and object of that statute. These are set out in the case of the Baptist Association vs. Hart's Executors, 4 Wheaton, 37, and are, moreover, manifest from the face of the statute. It appears, as well from the stab-
Two things are necessary to constitute a charity according to the statute ; first, that there should be a gift or conveyance of land or money or other thing ; and, second, that the gift or conveyance should be for the purpose of accomplishing some one or more of the benevolent objects mentioned in the statute, or some object so akin to them as to be embraced by its spirit.
In regard to the gift or conveyance, it must pass the title to the thing given or conveyed, so that the donor can no longer control the estate. As long as the donor keeps the control and the possession, he could apply the estate according to his benevolent designs. It would be absurd to suppose, that the statute was passed to afford a remedy, to enforce a charity, against the donor himself. It was “ frauds, breaches of trust and negligence” in those who received the funds from the donor, that produced the statute. The donation must have •taken effect, so far as to vest the title in a trustee, before there can be any pretence to say, that the donor has established, or created a charity. The statute does ¡not say, that a promise to give land or money for char
In regard to the object of the gift, it must be one of those enumerated in th^ statute, or so nearly allied as to-be embraced by the spirit of the act. Thus the- erection of a mill and the conveyance of it to trustees, to-the intent that the inhabitants might have the convenience of grinding there, is not a charity within the statute. 2 Vern. 387. Ba. Abr. Charitable Uses, lct. C.
Testing the covenant of the Shakers by the foregoing rules, it is not a charity, according to my understanding, within the meaning of the 43d of Elizabeth. The funds of the Shakers are not given for any one of the objects mentioned in the statute, nor for any kindred object. If the funds are consecrated to the promotion of any charity contemplated by the statute, it is that (as it may be inferred from the opinion delivered,) which relates to the relief and maintenance of aged, impotent and poor people j “ for” (says the opinion,) “ persons of that class may become members, and derive the full benefit of the institution. There is nothing in its ordinances to exclude them.” True, such may become members. I find no ordinance to exclude them ; but I find nothing which' imperatively requires their admission. The covenant does not point out the inode of admission, nor does it provide for the organization of any tribunal to decide on the application for membership. It is clear to my mind, that the covenant does not allow all aged, impotent and poor people, who may choose, to quarter on the estates of the Shakers, and to claim the benefit of membership, as of the “church relationnor can I find a license for any one poor man to do this. It is, therefore, optional with the managers or trustees of the society, whether they will appropriate any part of the funds in their hands for the relief of
There is nothing to shew, that the members of the “church relation”..are objects of charity, or that they stand in need of donations, for their maintenance as poor people. The contrary is fairl}' deducible from the covenant. According to the third article of the cove-. nant, no one can become a member, unless he be of lawful age. Those who are free from debt are allowed to “bring in, and devote, as apart of the joint interest of the church, all such property as they justly hold.” Whether insolvency would be a valid objection to a candidate, for membership, is left for inference ; but conceding that it is no objection, and that a person may become a member without contributing any property to the joint funds or estates, as soon as he unites himself to the society, it is a part of his covenant duty “ to support and maintain the joint interest of the church according to his ability.” His labors, thereafter, are to be devoted to the increase of. the property of the society. Such a member, who is capable of earning a support, is no object of charity, within the meaning of the statute. It does not appear that any one of the covenant members no\v is, or was, at the time of signing the covenant, incapable of supporting himself by his labor. According to the third article, “the joint interest of the church, formed and established by the free will offerings of the members, shall be held and possessed by the whole body, jointly, as their natural and religious right; that is, all and every individual of, or belonging to, the church, shall enjoy equal rights and privileges in the use of all things pertaining to the church, according to their order, and as every one has need, without any difference being made on account of what any one brought in.” The evidence shews that the estates held by the society are large, and valuable. Here, then, wé see an association of individuals of full age, capable of supporting themselves by their own labor, bringing to
The estates Of the Shakers are held exclusively for the use of the covenant members. The trustees are not bound to appropriate a dollar to feed or clothe any one, unless he be a covenant member, with the exception herein after mentioned. . There is a stipulation in the fifth article to this effect".— “ The trustees, in union with the body, may make presents and bestow deeds of charity upon such as they consider real objects, that arc without.” This provision is Hot imperative. Its insertion, shewing that deeds of charity towards others, were in the contemplation of the parties, indicates strongly to my mind, that they did not regard themselves as objects of charity in consequence'of their poverty. This consideration, taken in connection with the wealth which the society is shewn to possess, effectually discountenances the idea that the.object of the Shaker covenant was' to create a charity for' the benefit of poor people, within the purview of the statute of the 43d of Elizabeth.
The exception alluded to, is in the case of a person who joins what is called the “family relation.” A schedule is taken of the goods and chattels of the- person so joining, and if he chooses to withdraw thereafter, the society pay him in kind the value of the property mentioned in the schedule. The person thus joining a family of Shakers is entitled to a support during his continuance in the family, and is bound to contribute his labor, and the use of the propérty mentioned in the schedule.
I cannot perceive any object which can sustain the covenant of the Shakers as a charity'under the 43d of Elizabeth, (and no other has been suggested,) unless it be that of providing for the destitute and helpless.—
The fifth article of the covenant makes it the duty of the trustees to take charge of the property and estate dedicated and given up, “ to the joint interest of the church ;” and provides that it shall be “ at the disposal of the trustee and agentship of the church in a continual line of succession.” Now I think it is clear, that the third article vests the title of the property in the whole of the members jointly. The fifth article does not divest, the members of their title, but merely authorizes the trustees or agents appointed by the second article, to bargain and sell, and dispose of the property, given up “to the joint interest of the church,” (that is, vested in all the members,) “ for the mutual benefit of the church, and in behalf of the whole body.” In ibis view, the trustees or agents of the society are not vested with the legal title, but a power merely is conferrd upon them, under which they may lawfully sell any part of the property. It became necessary for such a body.
The sixth article contemplates future acquisitions, and provides that all deeds &c. u which may hereafter be given to the trustees or agents of the society, for and in behalf of the joint body or church, express reference shall be had to the covenant.” I do not consider it very important to enquire into the proper mode of drafting a deed or conveyance, under the sixth article, so as to secure to the “joint body or church” the full benefit of the estate purchased. For, if it be conceded that the legal title would abide in the trustees, there can be no question that the deed should be so drawn as' to secure the use of the estate to all the members of the society, in conformity with the provisions of the coveenant. The requirement to make express reference to the covenant, was intended to secure this object. It should, at least, be such a deed, .as under the twelfth sec^ tion of the act of 1796 concerning conveyances, would transfer the’possession to those entitled to the use. Now, an estate so held, is for many purposes a legal estate. So far as it relates to the enjoyment of such an estate, it is as valuable (and as vendible too,) as a legal estate can be. Whether, therefore, the whole of the estates have been purchased under the sixth, or made up by contributions, (so far as relates to the personalty at least) according to the third article, can make no difference. Be it the one way, or the other, I contend that there is no gift or donation for charitable purposes within'the meaning of the 43d of Elizabeth.
The gifts contemplated by that statute, are such only as are placed, when made, beyond the control of the donor. Now, every article of the Shaker covenant shews, that the joint estates of the members continue subject to their control, notwithstanding the supposed donation for charitable purposes. The members appoint agents to manage, to sell, to buy. If these agents
Suppose further, that the members of the society were unanimously to agree to terminate their covenant,' and to divide out the estates in severalty — has the chancellor any power to prevent their doing it ? If the cove-nant has created a charity under the 43d of Elizabeth, and the members of the Shaker society are the recipients merely of its benefits, the chancellor would and ought to interfere. But if the covenant has retained to the members absolute dominion over the property of the society, then the members are not amenable to the chancellor, and they may destroy the foundation of the *
The opinion delivered, not only regards the property •carried into the joint stock as consecrated to the charity, but it takes in all the earnings of the members during their membership. If this may be done, why not pursue the earnings of a seceder, because he has once been a member, and appropriate these likewise to charitable purposes, under the idea that there is an entire devotion of all that a member has at the time he signs the covenant, or which he may thereafter obtain, to the objects of the society ? The covenant expressly “ requires a devotion to this extent.”
If the covenant does not create a charity under the 43d of Elizabeth, what does it accomplish ? I think jts scope and design perfectly manifest. The preamble to the covenant explains their object, and furnishes the rule by which the covenant itself is to be construed. It appears from the preamble, that the signers of the covenant believe, that the gathering together of the disciples of Jésus Christ, about the day of Penticost, and holding property jointly or in common, “ was only to serve as an example or .shadow of the everlasting union of the saints, when Christ should appear the second time ;” that Christ has actually appeared the second time in the world, of which fact, there is a new testimony or revelation from God, first made in England, and thence “ transplanted” to America ; that “ when the work of God began, in these last days, it evidenced itself to be the very work which God had promised* in gathering souls together and uniting them together in one interest, in things both temporal and spiritual that it is ?{'their duty and privilege, according to the holy scriptures and the present call of God, and the civil and religious rights secured to them, to obey their faith in all things; and moreover, it being.their faith, that the union and relation of the church of God in one joint interest, is a situation'the most acceptable to God and productive of the greatest good of any state or situation attainable on earth,” they, therefore, agree “to • unite in one body as a religious community, to be constituted, built up, and established upon the principles and rules of the church of Christ aforesaid that, in the language of the preamble, “ as God, according to his promise, has begun to give his people one heart and one way, that they may serve him forever, we do therefore expressly agree to and with each other, that the order of God may be known in the church, we will observe and keep, as delivered to us, with all and singular the rules, manners and ¿ustoms of the church, in relation to union, communion and fellowship, the rights, duties and privileges of the members, as also the offi
The foregoing is a brief outline of the creed ; the articles of the covenant are its fruit. The following will give an idea’how the spiritual and temporal affairs of the society are in fact conducted. I shalj not stop to enquire, whether in strict conformity with the articles of covenant or not. The preamble shews, that the “ present testimony of Christ’s second appearing,” was received “ through the medium and ministration of the general church in the eastern states, whose centre of union is the particular church of New Lebanon, in the township of Lebanan, county of Columbia, and state of New York ; from which place, the, messengers of gospel were sent.” The depositions prove, that, in the government of the society, the ministry are first and highest in power and authority — their appointment is by the mother church at New Lebanon, and vacancies are filled from the same source. Four persons constitute a full ministry, two of each .sex — a less number can act. The ministry appoint the elders, and the min-" istry and elders appoint the deacons and trustees. “The
The question recurs, what results from the creed, the covenant and the official machinery ? Nothing to my mind, but a general partnership for an unlimited time. The members, believing.’their duty towards God requires them to. break up those relations of life which they deem carnal, and to live together as brothers and sisters in Christ,, for their spiritual edification, have thrown all their property into joint stock, in which each is to have the same interest with every other, and they are, by their industry, to preserve and increase the fund and enjoy it so long as they live, and then it is to pass to the survivors, being members of the society, without ever terminating the institution. That, in my opinion', is the essence of the whole scheme: So long as its members choose to abide by it, I have no doubt it is competent for them to do so. But the opinion delivered puts it out of the power of the whole, or any one member, to bring about a partition of the joint estates, by declaring that these estates are consecrated to charitable purposes ; and the opinion only gives a use to.a member as long as he continues in the society, and of course terminates the use in respect to any one member, just as soon as he voluntarily abandons, or is ex-polled from the society. /
Í cannot consent that a voluntary abandonment, or expulsion from the society, terminates the interest of a member in the joint estate. There is no express provision in the covenant which imposes a forfeiture in case of abandonment or expulsion. If such a consequence can be collected from the covenant, it must be found in the stipulations of the seventh article, by which all the members agree never to “ bring any charge of debt, or damage, or hold any demand, whether against the
Those who entered into the. church relation, did so, no doubt, under a full conviction of duty, and-after coming to the conclusion, “once for all, to dedicate and devote themselves and all they possessed to the service of God forever,” according to their peculiar faith. It was absolutely necessary to provide for the support and comfort of the body while they were serving God spiritually. The formation of a joint stock, or interest, was adopted as the best plan to provide for the body, and -to place all the members in a situation best calculated to enjoy their religion. I cannot suppose that any one hypocritically became a member of the church relation* merely for the purpose of acquiring an interest in the joint estates and funds, and with a premeditated intention thereafter to abandon the society, and seek for a partition. Admitting all to be sincerely devoted to their religious creed, they signed the .covenant under the belief, that they would never renounce the faith professed, and that they would continue of choice, through life, to act up to its precepts. Under such convictions, they brought their property into the partnership ; or, what is the same thing, into the society. But an individual member changes his faith ; new views and opinions are embraced, and he now believes, that it is as inconsistent
It must be borne in mind, that the property of the Shakers is the production of their own industry and accumulations. If I give an estate to support and educate Shaker youths, or presbyterians, baptists, or methodists, I readily admit, that the recipients of my bounty, cannot, by any agreement among themselves, or by any thing they can do, place themselves in a condition in which they could demand a partition of the estates and funds proceeding from me. That is a very different case from one where the estates and funds are the product of the labor of the associates, and,which the chancellor is called on to divide among them. This last is the case of the Shakers. The question is, whether a
If such be the design of the covenant in regard to seceding members, it ought not to be enforced; because it is, to that extent, without consideration, and in violation of the policy and spirit of constitutional principles. Admit, for the.argument, that each member has agreed to forfeit his interest in the property, as soon as he forsakes the faith and the society — what consideration passes to him for that stipulation ? There is no consideration of blood, nor is there any of money or property. To put a case, suppose the member of a presbyterian church, enraptured with the doctrines of his spiritual teacher and pastor, were to execute a bond binding himself to convey all his property to the pastor, if he ever thereafter disbelieved the doctrine, or renounced his membership — could this contract be enforced upon the happening of the events which were to deprive the obligor of his estate ? Certainly not. Is the seceding shaker in a worse condition than the presbyterian ? The only way in which the conclusions resulting from the bare statement of the case can be avoided, is, to take a distinction between the case of an executory, and an executed contract. Let us test the case, then, by putting it in another form ; suppose the member of a presbyterian church conveys, by deed, all his property to A B, in trust, for the use of himself and family, so long as he' continues to belive the presbyterian creed, and remains a member of the church of which A B is pastor — what will become of the estate if the grantor abandons creed and church ? I do think that A B cannot thereby convert it into his individual estate, discharged of the interest of cestui que trusts. He held the legal title,-1 admit; but the trust, the use, was executed in behalf of the grantor and his family,, and their use cannot be divested in favor of a mere holder of the legal title, who has paid nothing. If the use is executed at all by the conveyance, it can no more be divested by the. idle stipulations relative to belief in a creed and continuance of church membership-, than if it had been an executory
A man cannot prevent the change of his opinions. It is impossible to resist conviction and change of opinion, when new facts and new reasons are presented in such a manner as to give a new direction to the mind. Our own reflections may convince and turn us beyond the power of resistance. We may turn from the truth and embrace error ; but turn we must, when the mind is placed under the influence of new facts, new arguments, new circumstances and relations, altogether adverse to preconceived notions. We may regret the change of Our opinions ; the change may give us pain ; but we can no more resist the change by an effort of the will, than we can, by a similar effort, prevent the decay and dissolution of the body. An agreement, therefore, never to change an opinion, or to adhere, through all time, to this or that creed, is an idle undertaking to perform an impossibility. If the person, .so engaging should, in truth, perform and keep his promise, he could not do it in consequence of any obligation imposed by the covenant; but he would iieep the covenant only because new lights, no matter whether true or false, did not spring up to change the direction- of his mental vision, and sufficiently powerful to consume and supplant former ideas.
No man can sell his liberty and become a slave ; nor can any one sell his liberty of conscience, and make his temporal rights depend upon a creed and its observances. There are inalienable rights recognised by our Constitution, and liberty of conscience is one of them. “ No human authority ought in any case whatever to control, or interfere with, the rights of consciessce.”
In coming to the conclusions expressed, I do not pre*tend to say, that the faith of the Shakers and their religion are erroneous. As a judge, I have nothing to do-with creeds or their orthodoxy. I only intend to declare my opinion, that no man’s right to the enjoyment of property owned by him, and earned by his own labor, can be taken from him, in virtue of a contract which makes his adherence to this or that religious creed and practice a condition which, if violated, shall forfeit his right.
It is not necessary to state my views relative to the-proper mode of .making partition, because, under the-.opinion delivered, no partition can ever take place-