Wardens of the Church of St. Louis v. Blanc

| La. | Jun 15, 1844

Bullard, J.

The plaintiffs, suing as the Wardens of the Church of St,‘Louis of New Orleans,allege in their petition, that the church of St. Louis, belonging to them, was built, finished, and expressly appropriated to the use of' the Catho-lie religion. That it was, with the consent of its founder, and by competent authority, erected into a cathedral, to be the seat of a bishop’s ministerial functions. That by the French laws, which were in force until the country was ceded to Spain, the right' of patronage, was recognized, established, and consecrated as a right inherent in the property, in favor of every person who had built a church at his own expense. That the Spanish laws, which superseded those of France, recognised t e ie principle ; and that the same laws, except so far as they are abrogated by the constitution of the United States and the constitution and laws of this State, remained in force until 1828, when such as were civil laios were repealed, leaving in fu 1 force those parts of the Spanish law known under the name of ecclesiastical laws, which are not repugnant to the constitution and laws, in all matters relating to the temporal administration of the Catholic Church. That the jus pair onatus in the Spanish colonies in America, was expressly reserved to the King of Spain exclusively. That this right of patronage consisted in the right of the king to nominate and present the archbishops, bishops, and other prelates, to the Bishop of Rome, under the name of the Pope, who approved of the same, unless the nominees had not the qualifications prescribed in the canons, and gave the institution necessary. That the king also nominated and designated to the archbishops or bishops, such priests as he destined to the service of the churches, and those prelates were bound, except for'good and legitimate reasons, to grant to such priests the canonical institution, necessary for the functions and powers of their office; and all persons, whether secular or ecclesiastical, were forbidden to exercise this right of patronage or presentation. The plaintiffs further allege, that the Spanish laws, with the exception mentioned by them, have continued in full vigor in Louisiana; and that the effect of the cession to the United States could not be, and has not been, to reserve the right of patronage, which the King of Spain attributed to himself, and still less to transfer it to any public functionary of the United States, or any prince, potentate, or foreign government. That by the laws which existed prior to this royal patronage, the people, the Catholics, and their clergy, had the right of nominating and electing prelates without any power on the part of the Bishop of Rome, or his agents, to interfere; and that the right to elect priests destined to the service of the parochial churches belonged to the owners of those churches, and was inherent in the property, and as such transmissible to their heirs or successors. The petitioners then enter into long historical details, showing the practice in New Orleans, which it is useless here to repeat. They allege, that the bishops, including Bishop Blanc, have always received a salary from them, paid out of the revenue of the church ; but that in January, 1842, the defendant, being no longer satisfied with that salary, demanded, by letter addressed to them, the revival in his favor of a certain right known under the denomination of Cuarta Episcopal, that is to say, that one-fourth of the perquisites (casual) of the said church should be allowed him, over and above his salary. That the petitioners, thinking themselves not authorized to grant this demand, refused to accede to it, and subsequently suppressed the salary, under the conviction that, in allowing it, the wardens had overstepped their authority ; and that, as Bishop Blanc never preached, although the canons and laws of the church made it his duty to preach, he did not render the Church of St. Louis services equivalent to the said salary. They next proceed to detail the troubles and disturbances which have occur red between them and the bishop; and allege, that finally the bishop wrote to them, that he was ready to name a curate for the cathedral as soon as it was determined what would be his condition ; and saying that, in order that a priest may exercise his functions of curate with dignity and propriety, it was necessary that he should have in his power the records for which he is responsible to families and to his bishop; that he should have the control and choice of the officers and assistants in the interior of the church, so as to exercise his functions without hindrance; that he should have the free use of the presbytery; and finally that the tariff to be followed by the clergy, should be subject to the approval of the bishop. - They say they refused to accede to these conditions, and they expose at length their reasons; and allege, that the authority claimed by the bishop is not sanctioned by law. Whereupon they were notified by the bishop, that if they persisted in their resolution, all connection between him and them should cease; by which he intimates, that no curate will be appointed for the church of St. Louis; and in his letter he asserts the right to appoint all curates, and other ecclesiastical dignitaries, which he pretends is guarantied to bishops by what he calls the common ecclesiastical law, which law is nothing else than what the European canonists, jurists and bishopá have always denominated the ultra-montane law, or otherwise, the purely Papal law, which has never been in force either in Spain or France, nor in the American colonies. That finally, he had refused to recognize the right of the wardens to make a nomination of curate ; and declared, that he would consider as schismatic any priest, who should exercise any functions under such an appointment; and apprising them, that the priests officiating in said church, as well as those attached to the obituary chapel, shall cease to be in the pay of the petitioners, and charging the wardens with an- attempt to destroy the unity of the Catholic Church. That he thus evinces an intention to make the dicta of the court of Rome, even in temporal matters, paramount to the constitution and laws of this State. They proceed to state, that the bishop, by his conduct and influence, has caused a deplorable division of opinion, among the Catholic population of the city. That this dissension has. arisen to such a point, that recently a certain number of persons, calling themselves the representatives of the Temperance Society, generally unknown to the petitioners, but probably Catholics, published a vote of censure and disapprobation, conceived in harsh terms, of the conduct and pretensions of the petitioners, and approving at the same time the conduct of the bishop, declaring that they recognize his pretensions as just and legitimate, and offering him their aid and assistance to maintain him therein. That the b'sfiop addressed a letter to the representatives of the Temperance Society, which has been published, in which he approves the sentiments expressed by them, and offers them his thanks. That finally, he has withdrawn from the service of the church of St. Louis, all the ministry attached to the same, with the exception of Faiher Assencio, whose services are inadequate to the spiritual wants of the members of the church. The petition finally resumes, that by reason of the inadmissible pretensions of the bishop, as well as by his refusal to recognize their right of nomination or presentation, or to exercise it himself, subject to their approbation, and by the withdrawal of all the priests from the church, except one, they have suffered, and are still suffering damage, which has been increased by the effect of the libellous and defamatory letter aforesaid, in which he stigmatizes their acts as schismatic, and as tending to destroy the unity of the church, all which is false, injurious and calumnious; and they lay their damages at $20,000, for which they pray judg-•mertf.

Thus it appears upon an analysis of this petition, that the wardens of the church of St. Louis sue the bishop of the diocese of Louisiana, for damages, for having at first asked for the Cuarta Episcopal, in addition to his salary ; for having asserted the propriety of the tariff’s being submitted to his approbation ; for having asked that the curate to be appointed should have the entire control of the records of marriages, &c., and the appointment of the subordinates who officiate in the church; for having neither admitted the right of the wardens to appoint a curate, nor appointing one himself; for having written a letter to the Temperance Society, thanking them for their s}rmpathy in his cause; and, finally, for having withdrawn from the service of the church all the priests except one, whereby the cathedral is deserted. These damages are sought to be recovered of a prelate of the Roman Catholic Church, for having uttered these expressions of opinion, and avowed these pretensions to authority, and exercised these acts of discipline, in reference to the doctrines and government of the church of which he is a high dignitary, while acting in the discharge of his episcopal functions..

The'defendant met this petition by four exceptions; the first of which is, substantially, that the corporation of the wardens of the church of St. Louis is an aggregate corporation, composed of two distinct parts, to wit, the curate of the church, and twelve lay members; and that the office of curate being vacant, as shown by the petition itself, it has not the faculty standi in judí-elo. The second exception is, that the powers and duties of the church wardens are restricted to the administration of the property and revenues of the church of St. Louis, and that no power is given to them to regulate, or in any manner interfere with the discipline or government of the Catholic Church, in its general or universal character as a church. That it is not alleged that any damage has been sustained by injury done to, or by the detention of any property of the church.

3d and 4th. That no cause of action is set forth in the petition, which can entitle the plaintiffs to recover; any such cause of action as therein set forth being founded on the alleged opinions of the defendant in relation to the government and discipline of the Catholic Church within the diocese of Louisiana, of which he is bishop ; and finally, that the petition sets forth no cause of action of which the court ought to take cognizance.

These exceptions were sustained by the Parish Court, and the petition dismissed, and the plaintiffs have appealed.

We are not prepared to concur with the Parish Court in sustaining the first of these exceptions, which denies to the corporation the faculty of suing while the office of curate is vacant. We regard the curate as an ex oficio member of the board of wardens, having but one vote, like any other member, in its deliberations, as the members of this court are, ex officio, trustees of some of the colleges in the State. If every seat here should become vacant., the college corporation would, in our opinion, continue to exist, with all its capacities to contract, to sue, and to be sued. This is more especially the case when the appointment of the ex officio member does not depend upon the other members, and no mode is pointed out by the charter for filling the vacancy. The question would be a very different one, if the lay members alone, without consulting the curate, were asking for a modification of the charter, as was the case in Pennsylvania, in relation to St. Mary’s Church, which was cited during the argument. The management of the property of the church was confided by the charter jointly to the curate and the lay wardens; and the lay wardens alone, according to that decision, could not be permitted to procure such a modification of the charter as to leave out the curate altogether; but it does not follow that, even if there were a curate, this suit might not be instituted against his will, by a vote of the majority, nor that a mere vacancy in the office would be a good plea in abatement. The board is composed of thirteen members, of whom the curate is one, and, according to the Code, the act of a majority is the act of the whole. Art. 435. But upon the other exceptions, our opinion is unequivocal and unanimous.

Assuming, then, every statement and allegation in the petition as true, can the plaintiffs maintain this action against the bishop?

The charges against him are, in substance, that he has interfered with and impeded the discharge of duties, and the exercise of powers belonging to the church wardens; that he has asserted pretensions unwarranted by law ; that he has withdrawn the officiating ministers from the cathedral, by which means it is nearly deserted; and that he wrote a libellous letter to the members of the Temperance Society.

Our first inquiry necessarily is, what are the corporate powers and duties of the plaintiffs ? We can learn them only from their charter, and as defined by law. It is to be remarked, in the first place, that although the curate is one of the wardens, virtute offi-cii, yet no provision whatever is made by the charter for supplying a vacancy occasioned by his death, or resignation, or otherwise. The vacancy is supplied as soon as a new curate is appointed and qualified, according to the established doctrine of the Catholic Church; but how, or by whom, we are not judicially informed. Nor is there any general law on this subject; as we shall presently show, that the law cited from the 1st Partida, and the Recopilación, relative to the right of presentation to a vacant b*nefice, or the jus patronatus, has been abrogated.

The ordinary corporate powers common to most corporations, are conferred by the 2d section of the act of 1816, entitled “An act to incorporate the Congregation of the Roman Catholics of the Church of St. Louis.” The 10th section defines the powers and duties of the wardens. They are vested with full authority to provide in a suitable manner for public worship (entretien du cuite;) for the salaries of the ministers and employes ; to administer the revenues of the fabrique ; to keep up, repair and improve the property thereto belonging ; and to make and alter any ordinances relative to those objects, and all affairs which concern ithe temporalities,(le temporel,) of the said church. The 16th'sec-tion authorizes the wardens to fix, on the third Monday in January of each year, the emoluments of the curate and of the other ministers officiating in the public worship, and of those employed in the service of the corporation, as well as the sums which the curate and other ministers shall have a right to exact under the name of casual; and they are forbidden to receive any higher fees under a penalty of twenty-five dollars.

The title of this act is, “ An act to incorporate the Congregation of the Roman Catholics of the Church of St. Louis of New Orleans, and to regulate the administration of the'property and revenues of said Church.” The corporators, those who have a voice in the election of'lay wardens, are declared to be all white persons, aged at least twenty-five years, having resided at least five years within the parish of St. Louis, and paid a state, parish or city tax, and professing the Roman Catholic religion. They are the constituents, and the wardens are their mandataries, having by law a corporate name and capacity, the more effectually to administer the temporalities of the church, and to provide for the support of public worship in the Catholic form. The charter does not give to the mandataries of the Catholic part of the community a right to appoint, in the theological sense of the word, a curate, but only to provide for his salary; and we do not doubt their perfect right to withhold all salary from any person whatever, and even to prevent any person claiming to be curate, to enter the church belonging to the corporation. We expressly so ruled in the case of The Church of St. Francis of Point Coupee v. Martin, 4 Robinson, 62, in which case the curate claimed his salary, after he had been notified that it had been stopped and withheld. The Legislature have not, and could not in our opinion, authorize the wardens to interfere in matters of mere church discipline and doctrine. It could not constitutionally declare, what shall constitute a curate in the Catholic acceptation of the word, without interfering in matters of religious faith and worship, and taking a first step towards a church establishment by law. It would have as good a right to provide for the appointment of bishops, for the qualification of circuit riders, presiding elders, deacons, priests who officiate in the Jewish synagogues, and even for the election of the Pope.

The plaintiffs’ counsel place their right to recover upon those articles of the Code so often quoted, which declare “ that every act whatever of man, which causes damage to another, obliges him, by whose fault it happened, to repair it,” and that “ every person is responsible for the damage which he occasions, not merely by his act, but by his negligence, his imprudenee, or his want of skill.” It is asserted that in consequence of the unfounded pretensions and acts of the bishop, the cathedral has been in a great measure deserted, and the income of the church greatly diminished ; and the petitioners thence infer their right to recover damages.

These articles are not to be understood in their literal sense, as applicable indiscriminately to all acts whatever, even to those for which the person committing them is declared by law not responsible — such acts do not violate any legal right, and involve no dereliction of legal duty and obligation. Men are liable in damages only for their illegal acts, and for injuries done to the legal rights of others ; and as this court said, in the case above alluded to, of The Wardens of Point Coupée v. Martin, Curate, “ courts of justice sit to enforce civil obligations only; they never attempt to coerce the performance of spiritual ones.”

But the plaintiffs’ counsel contend that the duties of the bishop are legal duties, and it was even asserted by one of them that he might be coerced to discharge them by the arm of the law, and by writ of mandamus. Nothing can be more plain and obvious than the principle laid down in the case above spoken of, “ that neither the Pope, nor any bishop has, within this State, any authority, except a spiritual one.” The highest prelate of the church, in common with the most humble worshipper, cannot be molested on account of his religious opinions, and the free expression of them. If the bishop entertains and expresses the opinion that he alone, in his episcopal character, has, according to the established discipline or government of the Catholic Church, a right to appoint a curate, he is not responsible to any man or body of men for expressing such an opinion. If, in the exercise of his spiritual functions, he has caused his subordinates to cease to perform divine service in the cathedral, it is an act for which he is not accountable to any human tribunal. The wardens might as well sue the worshipper himself for ceasing to occupy his accustomed seat in the church, because of a difference of opinion between him and them as to the proper qualification of the curate. Admitting that the diffusion of the defendant’s opinions has produced, as it is alleged, lamentable dissensions in the community, the plaintiffs were not .appointed to maintain unanimity of opinion upon religious topics, much less to invoke the aid of the courts to enforce it. But it is said, that the bishop, being no longer satisfied with the salary which has been allowed him, asked through the medium of a letter addressed to the wardens, the revival of a certain right, known under the name of Cuarta Episcopal, that is to say, that one-fourth of the perquisites, or casual, should be allowed him over and above his salary. It is not even insinuated that he retained, or attempted to retain the slightest part of that income, under such a pretence. On the contrary, his addressing himself to the wardens shows his opinion that they had a right to refuse it. If the Pope were to claim one-fourth of the treasury of the church, he would only be laughed at for his pains. Again, it is said, that the I'ishop published a pastoral letter menacing the wardens with ecclesiastical censure, and even hinting at excommunication for being schismatic, if they persisted in their resistance to his episcopal authority. And suppose he had excommunicated them, could the bishop be punished, or amerced in damages for regarding the wardens as schismatics according to his views of the doctrine and discipline of the church; and a court of justice be gravely called on to decide which was schismatic, the bishop or the wardens 1 By what standard are we to ascertain the orthodoxy of the corporation, or of the bishop? The whole matter would end in the most gross absurdity, as well as an attempt to violate the most sacred of human rights — -an entire exemption from all responsibility on account of religious opinions. The letter to the Temperance Society, said tobe libellous, is not alleged to be malicious, and malice is of the essence of slander; and besides, this is perhaps the first time that a corporation has brought an action for slander. It is precisely as if a bank were to sue a citizen for damages, for having asserted that its directors were rogues and peculators.

We proceed next to show upon what ground this exemption from liability on account of religious opinions reposes, and how far any former law in this State can be invoked to support a contrary doctrine, or any right to nominate a curate, as incidental to the ownership of the church.

The argument of the junior counsel of the defendant upon these questions of religious liberty and worship, met our entire approbation. Yate!, whose opinion was quoted by the opposite party, to prove that it is one of the attributes, as well as duties of the sovereign, to make suitable provision for a religious establishment and religious instruction among the people, lays it down as a maxim, that liberty of conscience is a natural and inviolate right; and he adds, it is a disgrace to human nature that a truth of that kind should require to be proved. 1 book, 12 chap. 128

All the laws quoted from the Spanish Code, which the counsel for the plaintiff is pleased to denominate ecclesiastical laws, have been long since abrogated and repealed. They had reference to an established state religion, which in Spain was exclusive. In this whole Union the separation of church and state is complete, and we trust eternal. How is it in Louisiana?

In the treaty of cession, the First Consul of the French Republic exacted a stipulation in favor of the inhabitants of the ceded territory, that they should be incorporated into the Union, and admitted as soon as possible according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, and that in the mean time they should be maintained- and protected in the free enjoyment of their liberty, property, and the religion which they profess. This stipulation was personal to every inhabitant of the country, in relation to his property, and the religion he might profess. He was solemnly guarantied the free enjoyment of his religious opinions, whatever they might be. It was not a. stipulation in favor of any particular church, or religious establishment; but a full guaranty to every inhabitant of the ceded province, that he should not be molested on account of his religious belief, or form of worship. (The States had already, in the Federal Constitution, forbidden Congress from passing any “law concerning an establishment of religion, or prohibiting the free exercise thereof;” and the people of Louisiana were promised a full participation in the immunities ancl blessings, which such a provision was calculated to afford.

Among the first'acts relating to the government of the ceded territory, Congress passed one, which was approved on the 2d of March, 1805, “ further providing for the government of the territory of Orleans,” which authorized the President of the United. States to establish and’organize within that territory, a government, in most cases similar to that existing in the Mississippi territory, and to appoint all officers, &c., “ in conformity with the ordinance of Congress made on the 13th of July, 1787and the act declares that “ from and after the establishment of said government, the inhabitants of the territory of Orleans shall be entitled to ei joy all the rights, privileges, and advantages, secured by said ordinance, and enjoyed by the people of the Mississippi territory.”

That remarkable ordinance, which provided for the temporary government of the immense territory north-west of the Ohio, now embracing some of the most powerful and populous States in the Union, contained the following enunciations and provisions : “ And for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws, and constitutions are erected ; to fix and establish these principles as the basis of all laws, constitutions, or governments, which forever hereafter shall be formed in said territory ; to provide also for the establishment of States, and permanent governments therein, and for their admission into the federal councils on an equal footing with the original States, at as early a period as may be consistent with the general interest; it is hereby ordained and declared, &c., that the following articles shall be considered as articles of compact between the original States and the people and States in the said territory, and forever remain unalterable, unless by common consent, to wit: Article 1st. No person demeaning himself in a peaceable and orderly manner, shall' ever be molested on account of his mode of worship, or religious sentiments in said territory.” The people of Louisiana by the act of the then sovereign, became a party to this noble compact; were made to participate in the enjoyment of this entire exemption from control, restraint, or liability in all matters of religious belief or worship, and became solemnly bound never to permit any enactment by legislative authority, tending to molest any man on account of his mode of worship or his religious sentiments. If the State constitution framed a few years afterwards, contained no such restriction upon the legislative power, it was because it was thought unnecessary. It had already been settled by solemn and inviolable compact, that religious freedom, in its broadest sense, should form the essential “ basis of all laws, constitutions and governments,” which forever after should be formed in the territory, and that compact was declared to be unalterable, unless by common consent. The act of Congress of 1805 above cited, provided for carrying into effect the stipulations of the treaty, as soon as the population should amount to sixty thousand, by authorizing its admission into the Union, “provided the constitution so to be established shall be republican, and not inconsistent with the ordinance of the late Congress, passed on the 13th July, 1787, so far as the same is made applicable to the territorial government hereby authorized to be established.”

It has, we believe, been the uniform opinion of the profession, that these laws of Spain have ceased to exist, by their absolute repugnance to the fundamental principles of our American governments. The translators of the great body of the Spanish laws, called Las Siete Partidas from which the counsel for the plaintiffs have quoted so largely, as still in force under the name of ecclesiastical laws, omitted as not in force, the whole of the first Partida, except the two first titles, which treat of laws, justice, customs, &c. They left out twenty-two titles embracing the whole matter of a religious establishment, the Catholic faith, the sacraments, the duties of the clergy, religious orders, vows, excommunication, simony, and sacrilege, advowsons, tithes, &c. &c. In their preface they content themselves with saying, “ those parts which relate to the Catholic faith, and to matters of a criminal nature, having been repealed, are therefore entirely omitted.” Nor is this a mere opinion of the translators, themselves learned members of the bar. The work was published by authority, as a translation of so much of the Partidas as had the force of law in this State, by virtue of an act of the Legislature passed in March, 1819, by which same act, Peter Derbigny, Stephen Maz-Ureau and Edward Livingston-, were appointed to examine the manuscript, and to compare it with the original language, and to see that it was faithfully done, and contained all such laws of the Partidas, as were considered as having the force of laws in this State. It is true their certificate was afterwards dispensed with by an act of 1820 ; but it is nevertheless true, that the work was published and distributed by legislative authority, thereby clearly indicating the opinion of the Legislature, that such parts as are omitted in the translation are no longer in force. See acts of 1819, p, 44; and Acts of 1820, p. 20.

But if there could be the least possible doubt on this point, it has been removed by the act of 1828, which swept from the temple of the law every such relic of a barbarous age. That act provides, “ that all the civil laws which were in force before the promulgation of the Civil Code lately promulgated, be and the same are hereby abrogated,” &c. B. & C.’s Digest, 155.

But it is said, that these are not civil but ecclesiastical laws ; as if the Catholic faith and church were not themselves civil institutions in Spain; as if the Partida, so often quoted, did not enact in so many words, that the very beginning of the laws, both spiritual and temporal, is faith in one God, in three persons, and in all the dogmas of the church, as matters of civil obligation; as if ■ that very law, which regards the right of presentation or advow-son, as inherent in the property of the church, does not regulate a civil right — a matter of property • as if the ecclesiastical laws of Spain, had survived every other part of its legislation, and we were now sitting as an ecclesiastical tribunal, to be guided in our decision by the Codes of the Alfonsos, the Phillips, and the Fer-dinands. Such pretensions will not bear a moment’s examination. While the laws of the 1st Partida are so confidently relied on by the plaintiffs’ counsel* as still in force in all matters relating to the temporal administration of the Catholic Church, especially that which goes to show that the founder and owner had the right of presentation or patronage, it probably escaped his attention that the very next law of the same title, upsets his whole theory, by declaring, that only in the event of the patron being oppressed with poverty, shall the clergy allow him any part of the rents, or revenues, of the very church of which he was the founder and patron, and then only in common with other paupers, though ; in rather a larger proportion thus giving to the priest nominated by the patron, the whole management and control of the temporalities; provided, however, that the founder might, by previous compact with the bishop, reserve to himself a certain portion of the rents.

What part of these laws shall we retain, and what part reject? Shall we pick to pieces this tissue of enactments of the same age and color and general texture, relating to the same mixed system of civil and religious government in Spain, emanating from the same sovereign authority, and reject this thread because it is civil and retain that because it is ecclesiastical ? No — the whole must be rejected together, as entirely obsolete, and abrogated by their litter repugnance to our fundamental laws.

It follows, we think incontestably, from what has been said, that the relation which exists between the bishop and the plaintiffs, according to their own allegations, implies no civil contract, and consequently given rise to no civil obligations. It is not al-eged, that any such contract exists. On the contrary they allege, that his'salary has been withdrawn and suppressed, because the wardens had overstepped their power in allowing it, and because the bishop never preached, as required to do by the canons and laws of the church. We look, therefore, in vain, for any contract between the parties insisted on by one of the counsel for the plaintiffs in his printed brief, having for its object the gratification of some intellectual enjoyment, whether in religion, morality, or taste, or some convenience or other legal gratification spoken of in article 1928 of the Louisiana Code. Op the contrary, the bishop is quite independent of the church wardens, except in relation to his spiritual or sacerdotal functions.

But the same learned counsel contends, that the right to nominate a curate, or the jus patronatus, is a civil right, and he quoted 1 vol. Devoti, 242; and the senior counsel quoted to the same effect, the “ Dictionary of the Jesuit TrevouxP That it was a civil right, while it existed, may be true; but there is no longer such a thing as a benefice, and consequently the right of advowson does not exist. It was partly for the reason that it was a civil right, and any law creating it a civil law, that we came to the conclusion that it is abrogated.

The wardens administer the temporalities of the church, and may give or withhold salaries at their pleasure; and as they cannot compel the bishop to institute a curate of their appointment, so neither can he compel them to pay one whom he may have appointed or approved. No one pretends that the bishop has a right to interfere in the administration of the temporalities of the church, and to appropriate to himself, or his subordinates, any part of the revenues of the corporation. The curate according to the charter, has a deliberative vote in those matters, as one of the ' wardens. It is true, it is 'the duty of the wardens to apply the revenues, in part, to provide in a suitable manner for public worship. But they are responsible only to their constituents, for the manner in which they perform that trust; and although they are authorized to make any appropriate contract for that purpose, it does not follow that they can compel any one to contract with them, or that the bishop of New Orleans is in any legal sense, subordinate to the wardens of one of the churches within his diocese, in relation to his clerical functions.

We have thought the occasion justified our entering thus at large, into an examination of this subject, and stating explicitly our views of the extent and grounds of religious liberty according to the constitution and laws of Louisiana, of which the defendant, by his exceptions, claims the protection; and in declaring that, in the opinion of the .court, no man can be molested, so long as he demeans himself in an orderly and peaceable manner, on account of his mode of worship, his religious opinions and profession, and the religious functions he may choose to perform, according to the rites, doctrine and discipline of the church or sect to which he may belong, and that this absolute immunity extends to all religions and to every sect. It is an ample shield, which it is the duty of the judicial power to hold with a firm hand, as well over the most exalted prelate of the church, as over the lowliest follower of him who was meek and lowly, and who emphatically declared that his kingdom is not of this world.

Judgment affirmed. ^*

* Soulé, Canon, and Roselins, prayed for a re-hearing, urging: 1. That the right of presentation is strictly a legal, or civil right, capable of being enforced in a court of justice, under the law in force at the tjmp the church of St. Louis was built.

2. That the change of government, and repeal of the Spanish laws, could not impair the vested rights of the plaintiffs, and of those under whom-they claim. See the decision of the Supreme Court of the United States'in the case of Dartmouth Collage v. Woodward, 4 Wheat. 512 ; also The Trustees of Montpellier Academy v. George et al, 14 La. 402. 3. That the rights claimed by the plaintiffs are not inconsistent with religious liberty, nor in any way incompatible with the institutions and laws of the State.

Re-hearing refused.