Union Church of Africans v. Sanders — 6 Del. 100

Majority

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Union Church of Africans, defendants below, plaintiff in error, v. Ellis Sanders, plaintiff below, defendant in error.

Headnote

A writ of error will lie to an order of the Superior Court awarding a peremptory writ of mandamus, though not a judgment at common law, under the provision of the Constitution which confers upon the Court of Errors and Appeals “jurisdiction to issue writs of error to the Superior Court, and to determine finally all matters in error in the judgments and proceedings of said court;” which extends and applies to judgments and decisions in any proceedings in the latter court of a final character.

Mandamus will not lie to admit' or restore a minister who is wrongfully excluded from his pulpit and the exercise of his spiritual functions hy the corporate trustees and congregation of the church, if there is no endowment or emolument other than voluntary contributions, annexed to the office and dependent on the exercise of its functions, or he has no temporal right involved in the matter and affected by the exclusion.

Without some temporal right, such' as an endowment, a fixed emolument, stipend of salary, or other temporal advantage annexed to its functions, his office is merely a spiritual or ecclesiastical office ; and1 if wrongfully excluded from it there is no legal right involved in the ease, and a court of law has no jurisdiction of it. If, however, there is any such temporal right attached to the office and its functions, affected by his exclusion, and for which the law affords no specific remedy, mandamus will lie to restore him, to prevent a failure of justice in respect to such legal right.

Writ of error to the Superior Court for Hew Castle County, heard before Johns, Chancellor, Harrington, Chief Justice, and Milligan and Houston, Judges.

The case below was on a writ of mandamus issued on the

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petition and affidavit of Ellis Sanders, the plaintiff below, to the Union Church of Africans, in the city of Wilmington, to admit him as elder minister in the church, to preach in said Union Church of Africans, whenever he might see proper to do so, and to administer the ordinances and discipline thereof, and to exercise a pastoral charge over the same, with all the liberties, privileges and advantages to the place and function of elder minister in said church belonging and appertaining.

The petition for the writ of mandamus set forth that :

In the year 1813 certain free colored people residing in the then borough (now city) of Wilmington, associated themselves together as a religious society, or congregation, and on the 21st day of July, in said year, agreeably to the provisions of the act of the General Assembly of said State, entitled “ An act to enable all the religious denominations in this State to appoint trustees, who shall be a body corporate for the purpose of taking care of the temporalities of their respective congregations,” passed at Dover, February 3, 1787, the said religious society, after due notice given, proceeded to elect from their number seven persons to be trustees of said society, to wit: John Simmons, John Kelby, Peter Spencer, Scotland Hill, David Smith, Jacob March, and Benjamin Webb, which said trustees upon their election took upon themselves the name of “ Union Church of Africans,” and certified the same in due form, according to the act aforesaid, to the recorder of deeds of the county aforesaid, to be recorded in his office, and said certificate is duly recorded in said office in Book M, vol. 3, page 470, &c., by which said premises the said trustees and their successors became by virtue of said act a body politic and corporate, in deed, fact, name, and law, to have perpetual succession, and by their said name were authorized to take and hold property real and personal for the use of their said society or congregation.

That on the said 21st day of July, 1813, the-, said religious society entered into certain written articles of association, signed by all the members thereof, and recorded

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with the above-mentioned certificate of the trustees, the purport and object of which articles was chiefly to set forth the purposes of the organization of said society, and one of which said articles of association is in the words following, to wit:

“ Article 2. The said corporation shall have, hold, possess and enjoy the temporal property which they have at this time, or shall hereafter acquire, in trust for the reli- . gious uses of the ministers and preachers of the said Union - Church, for them and their African brethren and their descendants of the African race, and also for, the ministers and teachers of the African brethren duly licensed and ordained according to the discipline adopted by the, corporation.”

That the succession of the aforesaid trustees has been continued, by elections for that purpose diuly had from time to time agreeably to the said act, and that William Brown, Peter Chippy, Henry Richardson, William Black, Spencer Williams, Isaac Parker and Levi Morris now hold and exercise the office of trustees aforesaid.

That the trustees of said society with funds contributed by the members thereof, in the year 1813 purchased and received for the use of said society a certain lot of ground in Wilmington aforesaid, and caused to be erected thereon a church or place of religious worship, which church or place of religious worship has by the trustees of said society always hitherto been held, and is now held for the use of the members and the ministers of said church duly licensed and ordained according to the rules and discipline thereof.

That the said society, after the election and incorporation of trustees aforesaid, proceeded to complete their or* ganization as a religious society or church as follows, to wit: On or about the 7th September in the year aforesaid,' the members of said society elected five persons to hold the office of ruling elders- among them, and authorized said elders to constitute other officers for the spiritual government of said society; that accordingly the persons so chosen as ruling elders, on or about the 14th September

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aforesaid, chose and set apart William 'Anderson and Peter Spencer to be ministers of said Union Church, to have the pastoral charge thereof and to exercise all authority pertaining to such office; that the said Anderson and Spencer prepared for the government of said society a system of rules and discipline, which was contained and set forth in a pamphlet entitled the “ Discipline of the Union Church in Wilmington, State of Delaware,” which said Discipline was by said society adopted, and until its revision, in 1841, hereinafter mentioned, was observed as its form of church government.

That under the provisions of said Discipline there were to he in said church three orders of preachers, viz., licensed preachers, deacons, and elder ministers; that licensed preachers were such as might from time to time be licensed to preach by the minister in charge, upon the recommendation of a majority of the ruling elders; that such preachers were not invested with the charge of a society or with authority to administer ordinances, but were only allowed to preach to such as would hear them; that a deacon was a preacher chosen to that office by the ruling elders and ordained by the elder minister; that his office was to assist the elder minister and to preach to a society or congregation in the absence of the elder minister; that he was not authorized to administer the sacrament of the Lord’s Supper, nor to administer discipline, nor was he invested with the charge of any society, except for the purpose of preaching, baptizing and solemnizing marriages in the absence of an elder minister,- and subordinately to him when present; that the elder minister under said Discipline was to be ordained to that office by the elder minister for the time being, with the approbation of the ruling elders and congregation, and the elder ministers were invested with the general superintendence of all the societies composing the African Union Church; and that each elder minister is, under the usage and discipline of said church, by virtue of his office, the minister in charge of any society where he may be.

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That by said Discipline it was provided that if other societies should be organized in connection with the original society in Wilmington, additional elder ministers should be ordained, as in said Discipline is prescribed, to execute, in connection with the aforesaid Anderson and Spencer, the authority pertaining to such office. That, in process of time, other societies were and have been formed in the States of Delaware, blew Jersey, Pennsylvania, Yew York, and Connecticut, in connection with the original society in Wilmington, subject to ,the same rules and discipline, and forming a common organization, under the title of the “African Union Church;” and that, from time to time, elder ministers, in addition to said Anderson and Spencer, were duly chosen and ordained, according to the provisions of the aforesaid Discipline; to wit, James Hill, Isaac Barney, Ralph Gilmore, and your petitioner.

That the said Anderson, Spencer, and Hill are deceased; that the said Gilmore has ceased to exercise the office of elder minister in said church; and that, consequently, the said Barney and your petitioner are the only surviving and acting elder ministers of the said African Union Church.

That, as the said religious society increased in numbers, a body, known as the Yearly Conference, came to be organized, composed of the lay elders and preachers of the several societies. That, by settled usage, the said Yearly Conference became invested with, and has always exercised, a general superintendence over the said societies, with authority to adopt such measures as it might deem expedient for their common welfare.

That, about the year 1841, for the purpose of adapting the form of government of said church to the increased number of societies in connection with it, the said Anderson, Spencer, and Barney, then the elder ministers of said church, prepared for said church a revised form of government and system of rules, which are contained and set forth in a book entitled, “ The Discipline of the African Union Church in Wilmington, Delaware; second edition, enlarged;” and that said last-mentioned Discipline was,

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and ever since has been, received and observed by the Yearly Conference of said church, and by the societies in said church, as their form, of church government. That, by said last-mentioned Discipline, no change whatever was made in respect to the offices or functions of deacons or elder minister in said church as the same are above set forth. That, by said Discipline,, it was provided that there should be a Yearly Conference, as above mentioned, to sit in Wilmington aforesaid, in the last week in April, and also in the city of New York, in the third week in September., '

Your petitioner further showeth that he duly became a • member of one of the societies of said African Union Church; to wit, a society formed at Christiana, in this State, in or about the year 1815; that, soon afterwards, he was duly licensed as a preacher in this church; that, in the year 1885, he was chosen by the elders of his said society to the office of deacon, and was thereupon ordained. to said office by Peter Spencer, then elder minister in said church, agreeably to. the provisions of the Discipline thereof; that he continued to preach as a deacon in the said African Union Church until the year 1846; in the month of April of which year he was nominated, according to the usage of said church in such cases, by a Yearly Conference, then sitting in Wilmington aforesaid, to the office of elder minister in said African Union Church, and with the approval of the ruling elders and of the said society in Wilmington, was, in due form, according to the discipline aforesaid, ordained to said office, on the 27th day of April aforesaid, by Isaac Barney, then elder minister in said church. That thenceforth he became, agreeably to the said Discipline, associated with the said Barney in the charge of the societies composing the said African Union Church.

That the said Barney, residing in the city of New York, assumed more particularly the charge of the northern societies in said church; and that the southern societies, including the said original society in Wilmington, fell

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under the immediate charge and superintendence of your petitioner as elder minister as aforesaid.

Your petitioner showeth that, by virtue of his office of elder minister as aforesaid, and according to the usages and discipline of said church, it is his duty and privilege to preach in said Union Church at "Wilmington whenever he may see proper so to do, and to administer the ordinances and discipline thereof, and to exercise a pastoral charge over the same. Yet your petitioner humbly showeth that he has, by the present trustees of said church above ' named, been forcibly excluded from said church, and debarred from performing the duties and exercising the rights above stated as pertaining to his said office, and that he is now so excluded and debarred.

Wherefore, having no other legal remedy in the premises, your petitioner humbly prays this Honorable Court to issue a writ, of the said State, of mandamus, directed to the said Union Church of Africans, commanding' them to admit your petitioner to preach in the said Union Church at Wilmington whenever he may see proper so to do, and to administer the, ordinances and discipline thereof, and to exercise a pastoral charge over the same, or to show cause to the contrary.

On the foregoing petition, sustained by affidavit, a rule was obtained at the May Term, 1852, to show cause wherefore a writ of peremptory mandamus should not issue to restore the plaintiff in the rule to his office as elder minister in the church, in accordance with the prayer of his petition; and an alternative mandamus was issued, to which the defendant below made return that the plaint, allegations, and matters contained in the petition, were not the proper subject-matter of mandamus, because the office of a preacher or elder minister, or the ■ right to exercise a pastoral charge in said church, was not an office known to the law; that there were no fees or salary attached to it; and that the incorporation of said church was confined to the temporal concerns of said society or congregation, ac

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cording to the provisions of the act of the General Assembly, entitled, “An act to enable the religious denominations in this State to appoint trustees, who shall be a body corporate, for the purpose of taking care of the temporalities of their respective congregations,” under and by virtue of which the said Union Church of Africans was alone incorporated; and that the said Ellis Sanders was not an elder minister in said church, nor was it his duty or right to preach in said church whenever he might see proper to do so, nor to administer the ordinances and discipline thereof, nor to exercise a pastoral charge over the same, as by the said writ was alleged. And that it was, moreover, expressly provided in the articles of association of said church, in the sixth article thereof, “ that no minister or teacher should be privileged to preach or exhort in said church but with the consent of the trustees and a majority of said congregation,” which consent had not been given; but it was and is denied by the said Union Church to the said Ellis Sanders to preach in the said church, or to administer the ordinances and discipline thereof, or to exercise a pastoral charge over the same.

At the next December Term of the Court, after argument by counsel, the rule was discharged; but at the ensuing May Term, 1853, on the application of the counsel for the plaintiff below, a reargument- of the case was ordered by the Court, which was reheard at a subsequent term, when the rule for a peremptory mandamus was made absolute. The counsel for the defendant below then moved the Court for leave to amend his return to the alternative mandamus and to file a supplemental return, which the Court refused. At this stage of the proceeding the writ of error was sued out.

D. M. Bates, for defendant in error:

The first application in the Court below was for an alternative mandamus, which was granted, to admit Sanders to the pastorship of the church in question, or show cause to the contrary, and which, after argument, was made peremptory; and there

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upon an order was made by the Court that a peremptory mandamus should issue; and the writ of error which they were now to try was to this order of the Court below.

He then submitted a motion to the Court to quash and dismiss the writ of error in the case on the following grounds. Ho writ of error will lie to an order of this nature, because it will only lie to a final judgment, or to an award in the nature of a judgment, or when the proceedings are according to the course of the common law— which mean the same thing—to a judgment, or to proceedings terminating in a judgment. 3 Bac. Abr. 325, 329; 3 Black. Com. 35. The proceeding by mandamus was originally merely a part of the general supervisory powers of the Court of King’s Bench over corporations. The power of that Court to issue mandamus, which is a prerogative writ, and not a writ of right, was introduced to prevent disorder and a failure of justice, or defect of police, and because the matter complained of concerned the public. Rex v. Barker, 3 Burr. 1267.

Upon the direct question presented in this case, however, whether a writ of error will lie to a decision or order of the Court below, granting or refusing a writ of mandamus, the decisions are numerous that it will not; but I shall cite only two of them,—the first of which is the case of The Dean and Chapter of Dublin v. The King, 1 Bro. Parl. Cases, 73; and the second is Pender v. Hurl, 3 Ibid. 505. And it ought not to lie, because it is not a writ of right, but is prerogative in its character, and it is wholly discretionary with the Court, as much so as a nonsuit, and because the granting or refusing of it determines nothing between the parties. 3 Bac. Abr. 328; Tapp. on Mand. 58 (74 Law Libr.); 12 Peters Rep. 620 . Awarding the writ determines definitively no question of right as between the parties to it; but it merely restores a person ejected to the office from which he has been driven or excluded, and thus prevents the public inconvenience which might arise without it, and which would otherwise have a tendency to

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encourage disputes and litigation, and to keep it up until the term of office expired.

Thus stood the law on the subject in England until the statute of Anne was enacted, which provided that the return to the writ might be traversed, but before which time it could not be denied or controverted by a traverse. Afterward, when the proceeding was under that statute, the return was traversed, issue was joined, the facts alleged and disputed were tried and determined as in other suits, which assimilated it to an action at common law, and a judgment was rendered and costs were allowed. Tapp. on Mand. 58, note a, 397 (74 Law Libr. 435). Such is now the practice in England under that statute, and to such a judgment it is held that a writ of error will lie. But it does not follow from this that the same is the case here; for it has been decided that the statute of Anne is not in force in this State. The State v. The Wilmington Bridge Company, 3 Harr. Rep. 540 . The statute of Anne has been re-enacted in New York, and this question has been settled in that State as it has been in England; and accordingly it has there been held and decided that when the proceedings in mandamus are under the statute a writ of error will lie, but not otherwise, as where the case was summarily disposed of by the Court on the return, without a traverse by the opposite party. People v. Brooklyn, 13 Wend. 130 .

I have found no case of mandamus in which it was held that a writ of error would lie, except where they have a statute similar to that of Anne on the subject. Our statute in regard to writs of error evidently contemplates and relates only to cases in which a judgment has been rendered.

J. Wales, for the plaintiff in error:

The question presented in this case is a new as vyell as an important one in this State, for he believed that it was the first appearance of any question on proceedings by mandamus in our Court of Errors and Appeals. The motion to dismiss the writ is founded on an antiquated notion of the law as applicable to it at the present day. The writ of mandamus was ori

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ginally a prerogative writ, and its use began as early as Edward the First, or Edward the Second, and was after-wards extended in its application. But we know nothing of prerogative writs in this State, and here, as at the present time in England, its original nature has been changed, and it has become an ordinary form of proceeding to settle disputes inter partes as a writ of right. In this country it never had any form of prerogative, whilst in that country the courts have enlarged the application of it, and it is now placed on the footing of an original writ and as a personal action. Tapp. on Mand. 57, 61.

Flow, what are the issues involved in this case ? The complainant charges that he is entitled to officiate as pastor in the Union Church of Africans, and claims to be restored to the office of elder minister in the church, from which he alleges he has been excluded. And the first question presented is whether the courts of law have jurisdiction in the case; and is not this a grave and important question, not only to this particular congregation but in its consequences and results to every other religious denomination in the State ? Does it not involve a high ecclesiastical right and privilege on the part of this congregation in performing the religious services and preserving the discipline of the church; and is not this a question fit for the consideration of a court of the highest resort ? In the Court below a peremptory mandamus was ordered, which could only' be enforced by attachment and imprisonment. The trustees have therefore no choice but to obey, or go to prison, unless they have redress on a writ of error. It is an interference in the ecclesiastical affairs and management of the church with which the civil authority of the State has nothing to do; and are the ecclesiastical rights of this religious corporation to' be thus affected by the action and proceedings of the Superior Court and no writ of error to he allowed ? The Constitution of the State, art. 6, sec. 7, provides that this Court shall have jurisdiction to issue writs of error to the Superior Court, to determine finally all matters in error in

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the judgments and proceedings of said Court; and the latter term was evidently designed to reach the case where no judgment, in its technical sense, was rendered in the Court below, or where the proceeding was not according to the course of the common law. Nor is this a mere summary proceeding affecting no right public or private. It is a proceeding and a final decision below, if no writ of error lies, affecting personal liberty, property, and even conscience. On the first hearing of the case below it was dismissed, but afterwards, and without any case then before it, the Court directed the case to be reargued, and at a subsequent term ordered that a writ of mandamus should issue because of a defect in the return, and refused to allow an amendment' of it. This, we maintain, was error in the proceeding below sufficient of itself to entitle us to the redress which we seek in this Court. A writ of error is a writ of right, and is not a matter of mere discretion to be withheld or not at the will and pleasure of this tribunal. Nor is this a mere temporary office to which the proceeding relates, nor is it a question merely of temporary import, whether the complainant in this case shall be thrust back upon an unwilling and reluctant congregation by the strong arm of the law, to preach whenever he pleases, whether the congregation is willing to hear him or not. But if the religious societies of this State are to be overruled and controlled in such ecclesiastical matters by the decisions of our civil tribunals, let us at least have our writ of error and our redress here in this Court of last resort, to correct the errors into which they will be peculiarly liable, perhaps, in such cases to fall.

The case is presented on a long and minute statement of facts contained in an affidavit of the complainant, which is • traversed and denied by an affidavit of the like nature by the other parties, with as much care and precision as a bill and answer in chancery. It is, therefore, in point of fact, an action between the parties to determine a matter of personal and private right, and not a mere summary proceeding of the character for which the other side contends;

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and by whatever name it may be called, whether an order, decree, judgment, or sentence, is immaterial: it is, at all events, a final determination of a proceeding in the nature of a suit, and a writ of error will lie. Clausen v. Shotwell, 12 Johns, 31 ; County Court of Warren v. Dallitt, 2 Bibb’s Rep. 573; 6 Wheat. 598 ; Serg. on Const. 64; Columbia Ins. Co. v. Wheelwright et al., 7 Wheat. 534 .

William H. Rogers, for the plaintiff in error:

The motion to dismiss the writ of error in this case rests on common law decisions of an early period in England, and assumes that the Superior Court of this State derives its power from the same source, to be exercised in the same way. The writ of mandamus is there styled a prerogative writ, but the prerogative principle has no application to our courts; and if it be held that no writ of error will lie to the Superior Court to a judgment or proceeding on a writ of mandamus, then it clothes that tribunal with a dangerous and alarming power, without revision, or review here, or elsewhere. But wherefore was it that a writ of error would not lie in that country to a decision of the Court of King’s Bench in a case of mandamus ? It was because the decision was not regarded in the nature of a judgment, but was altogether summary in its character. But after the statute of Anne, it was otherwise. It then assumed the nature of an action at common law; the return was thentraversable, and the issue was formally presented on the record, and after that it was held that a writ of error would lie, notwithstanding the statute of Anne contained no provision for such writ. The power, however, of this Court to issue a writ of error in such a case, is derived from our statute defining the jurisdiction of the Superior Court and the constitutional provision on the subject. Rev. Code, 317, and the 7th sect. of the 6th art. of the Constitution. Nor is this provision of the Constitution to be held inapplicable to the present case, because this proceeding and the decision in it does not assume the precise form and technical signification of a judgment at common law. Because this

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Court has exercised the power in question in a ease of summary proceeding under a statute contrary to the due course of the common law; for it has been adjudged to lie from this Court to the Superior Court in a case of divorce. Jeans v. Jeans, 3 Harr. 136 . And the same principle has been ruled, and recognized in other States. 2 Mass. 440 ; 15 Pick. 234 . In each of these cases the Court held that, if they could not render the proper judgment or order in the premises, because of the discretionary power vested in the Court below for that, purpose, they would treat the writ of error as a writ of certiorari, and in that character correct or quash the error, though it could not render the proper judgment, or enter the proper order or decision in the particular instance. Besides, all the judicial power of the State is by the Constitution vested in this Court, except so much thereof as is vested in the courts of subordinate jurisdiction.

D. M. Bates replied:

In what do we agree, and in what differ? In the first place it is admitted, on the other'side, that a writ of error would not lie at common law in England to a decision granting or refusing a mandamus; and in the next place it is conceded that the writ there exists by virtue of the statute; and as it has been decided by our courts that the statute of Anne is not in force in this State, the question then presented is, does the writ lie in this State to the decision of the Superior Court granting or refusing a peremptory mandamus ? We contend that it does not, because we insist that it is a mere discretionary power in the Court below to grant or refuse the mandamus, as may seem just and proper under the circumstances presented, and not a writ of right, and exists here as it existed in England prior to the statute, and is not changed or altered by the Constitution and laws of our own State.

In this instance the ease is brought before this Court on a mere affidavit filed below, which, to say the least of it, is unusual and extraordinary in this Court. Again, the decision below is not only not; a judgment, technically speaking,

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but it is not in the nature of, nor has it even the effect of, a judgment. The only effect of the mandamus in a ease like this is to place a party out of possession of his office, in possession as he was before he was ejected or excluded from it, subject to the decision upon the question as to his right to it, to be determined on a quo warranta; and, unlike a judgment in its practical effect, concludes nothing as to the question of right between the parties; in which respect it differs materially from the case of Jeans v. Jeans, 3 Harr. 136 , cited on the other side, for the decision in the proceeding for a divorce, is final and conclusive as to the marital rights and relation of the parties.

This Court derives its judicial power from the same act of Assembly which defines the jurisdiction of the Superior Court, and which vests in that tribunal the general powers of the Court of Bang’s Bench in England; and, consequently, the writ of mandamus is here as there, at common law, merely a discretionary power. The argument founded on the term “ proceedings,” occurring in the clause referred to in the Constitution, proves too much, for the construction given to it would make this Court a court of general review of all proceedings, even to matters of practice on affidavits and otherwise in the Superior Court, which reduces it to an absurdity.

The Court

held that the writ of error would lie in the case, and refused the motion to quash it.

Johns, Chancellor:

The Court has come to this conclusion upon what it considers as a reasonable construction of the clause in the seventh section of the sixth article of the Constitution, which provides that this Court “ shall have jurisdiction to issue writs of error to the Superior Court, and to determine finally all matters in error in the judgments and proceedings of said Superior Court,” and which, for this purpose, places the judgments and proceedings of that Court upon original and on other than the' common law grounds, and extends the jurisdiction of this Court by writ

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of error to judgments or decisions in any proceedings in the Superior Court of a final character.

The argument of the case then proceeded on the writ of error and the record from below.

William H. Rogers, for plaintiff in error:

The Court will perceive that it is alleged in the affidavit that Sanders became an elder minister in the church in question, and that the allegation is positively and distinctly denied in the answer to it; and this brings me to the first proposition which I desire to present, for it is a fundamental rule in mandamus that the party must show a clear, legal right, to entitle him to the remedy which he seeks, and he cannot set up a claim on the ground of usage in diametrical opposition to the plain fundamental articles of the incorporation. There was a Book of Discipline adopted in 1818, under which the plaintiff below asserts his claim in the present instance, but that was framed and instituted for the spiritual government of the church, and had no relation to the temporal concerns of the corporation under the charter. The claim and title of the plaintiff which he sets up here grows entirely out of an assumption of authority by the Yearly Conference, which, whatever may have been its spiritual powers, could confer no right or title to any office under the charter of the incorporation, and which Conference had in itself no legal connection with the corporation. The plaintiff below, it will be observed, alleges it to be his right and duty, as elder minister, to preach to and administer the ordinances of the congregation, and to exercise the pastoral charge over it, by the usage of this Conference; but we deny that any such usage was ever held to be the foundation of any legal right whatever, or that any such usage could spring up between two corporations, or between a corporation and an utterly irresponsible or self-constituted body of men, and that, too, in direct opposition to the fundamental laws of the incorporation. The affidavit states that Barney, residing in New York, assumed the

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management of the northern, while the southern portion of the society, in Wilmington, fell under the supervision of Sanders, as elder minister therein. And here we would ask, when and where can a man acquire a legal right to preach ? Is it anything more than a claim—a spiritual claim—to he a teacher of the word of God ? And can it become the subj ect of a legal right ? But even the spiritual right of Sanders to preach in this phurch is denied in the answer; and when you find in their articles of incorporation that no person is to exercise the office of a teacher or preacher in their church without the consent of a majority of the trustees and the congregation, it is a law of the corporation, as much so as if it were incorporated as one of the fundamental articles in the charter. Conceding that . the congregation for a time admitted the authority and supervision of the Yearly Conference, it was in spiritual matters merely, and was soon thrown off, and their powers under the charter and their articles of association were resumed by them. The leading feature and fundamental principle of the organization is the right to appoint its own ministers. Miller v. Gable, 2 Denio’s Rep. 492; Stebbins v. Genning, 10 Pick. 191 ; 16 Ohio Rep. 583 ; 3 Paige’s Rep. 296.

The Court below erred in granting a reargument of the case after a decision refusing the mandamus; for, having, at the December Term, 1852, discharged the rule, and refused the mandamus, the decision was final and conclusive, and there was no longer any case before the Court for re-argument or reconsideration. Had the decision been otherwise, the Court might have arrested its own proceeding and corrected its own error, if convinced of it. But when the writ was refused and the rule was discharged, the case was dismissed, and the parties were out of court. The Court below also erred in refusing to allow the return to be amended on the application made for that purpose by the plaintiff in error, which is a good ground of exception in this Court under the provisions of the statute. Rev. Code, 407.

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But I'come now to another and the main ground of error and exception in this case. It will he seen, from the affi-. davit, that the claim set forth by the plaintiff below is in no manner connected with any civil office, or any office of a temporal character whatever, and has no fees or emoluments attached to it; on the contrary, it is nothing more nor less in a word than an application to- the judicial tribunals of the State to enforce a preacher upon a congregation whom they have rejected, and whom they are no longer willing to admit to the pulpit of their church. This has never been done either in this country or in England. The King v. The Bishop of London, 1 Wil. 11; Rex v. The Bishop of Chester, 1 Wil. 206; Rex v. Blooer, 2 Burr. 1043; Runkle v. Winemiller, 4 Harr. and McHenry's Rep. 429; The King v. The Churchwardens of Croyden, 5 T. R. 713. In the case of Rankle v. Winemiller, the minister was entitled to a dwelling-house rent free, and certain privileges of firewood on an adjoining estate, in connection with his pastor-ship; and it was held in that case that, unless the office of the minister was endowed, a writ of mandamus would not lie to restore him to his office if he was excluded from it. For it is only in virtue of such endowment, and to restore the party to the pecuniary benefit of which he has been deprived, that the Court can interpose by mandamus to restore him to his office of minister. There being, however, no temporal right or advantages, pecuniary benefits, or emoluments connected with or attached to the office of elder minister in this church, hut the same being of- a purely spiritual and moral character,- and pertaining solely to the religious instruction and improvement of the mind and conscience of the members of the congregation, the civil power has nothing to do with the restoration of any teacher or preacher to -such a post when he has once lost it. The Constitution of the State very wisely provides that no one shall or ought to be compelled to contribute to the maintenance of any ministry against his free will and accord; and that no power shall, or ought to he vested in or assumed by any magistrate, that shall in any case interfere

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with, or in any manner control the rights of conscience, in the free exercise of religious worship; and the articles of association of this church assert the same principles of toleration and freedom to worship Grod. It is also a well-set-tied principle of law, applicable to this writ, that to entitle a party to a mandamus, it must appear that he has a legal right to the relief which he seeks, and that he has no specific legal remedy otherwise to obtain it; and a mandamus will not issue to a party incapable of obeying or complying with it, as would be the case in the present instance were the writ to be issued. 12 Barb. Rep. 217 ; 15 Barb. Rep. 617 .

D. M. Bates, for defendant in error:

In the year 1813 certain free colored persons, in Wilmington, organized themselves into a religious society, and became incorporated as such under our act of Assembly, and purchased a house and lot in that city to and for the use of their society or congregation, pursuant to the provisions of the law; not in any sense as private property, but for public worship, according to such form as should be thereafter prescribed under their form of church government. I am willing to take as the fundamental law of this corporation the articles of association and the charter of the corporation. The second of these articles devotes this property of the corporation to the use of the teachers and preachers duly ordained, according to the discipline .of the congregation or denomination.

The first thing to be considered is the title of Ellis Sanders to the office of elder minister in this society. This title rests on no such ground as it has been placed on by the other side; that is to say, the appointment of the Yearly Conference, but on the election by this society, in 1846, by the choice of the congregation, or body, of Ellis Sanders to the office of elder minister, and his ordination as such according to the discipline of this body. The Yearly Conference nominates, but does not appoint, according to the discipline, an elder minister, and if he is there

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upon presented to the congregation, and duly inducted into and ordained as an elder minister in the society, according to the forms and in the mode prescribed by the discipline of the body, his title to the office, is complete. And what does the answer here say ? It denies simply that he is an elder minister in the Union Church, in Wilmington, without setting forth any facts, and it is therefore in this particular insufficient; for it states a legal conclusion merely, without traversing or denying the facts set forth on this point in the affidavit. The Court, and not the respondents, are to determine this legal conclusion; and to do this the Court must have the facts to warrant the conclusion, and it was incumbent upon the other side, therefore, to meet our specific allegations with specific denials. Wilc, on Corp. 14, Law Libr. 220; Ang. and Ames on Corp. 669; Rex v. The Mayor of Abington, 2 Salk. 432; Rex v. The Mayor of York, 5 T. R. 66.

I shall assume then, taking the record as it stands, and the insufficiency of the answer on this point, that Ellis Sanders was an elder minister of the Union Church of Africans in Wilmington, and I shall proceed next to inquire what were the functions of an elder minister according to the discipline of the body. The difference between a licensed preacher and a deacon, and an elder minister, was this: that while the two former had a right to preach to only such as were willing to hear them, the elder minister stood in the pastoral relation to the congregation, or society, and acquired the pastoral office over it by virtue of his induction and ordination, and his right to preach and to administer the ordinance^ of religion in it, and to do what Ellis Sanders claimed the right to do in this case, .and which pastoral relation could only be dissolved according to the discipline of the body; and this brings me to the inquiry whether the trustees, not the congregation, had the right at any time, at their will and pleasure, to interrupt or arrest an elder minister in the discharge of the duties pertaining to the pastoral relation. The sixth article of association prescribes that no person shall preach

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in the church without the consent of a majority of the trustees and of the congregation. The second article provides that the trustees shall hold the church for the use of the ministers duly ordained in conformity with the discipline. Taking these two articles together, it is manifest that the sixth is not intended to apply to elder ministers, hut to teachers and preachers of a different order or denomination. It is not to be supposed that an elder minister, after being duly presented, inducted, and ordained in office as a preacher, with the consent of the congregation, according tb all the formalities of the discipline, is to be interrupted in the exercise of its functions at the will and pleasure of the trustees and congregation.

I come now to the question of jurisdiction, and on this point I take the distinction to be obvious. If Ellis Sanders had merely been removed by the Yearly Conference, or an ecclesiastical judicatory, from his office of preacher, or had been deprived merely of his right to preach, he would not be entitled to the remedy he seeks in this instance ; because that would be merely a spiritual office, and it would be calling upon this Court to review the decision of an ecclesiastical body. But where the ministerial function draws after it the right to use a church, or pulpit, or place, as in this instance, it is a civil right, and the writ of mandamus will lie. Rex v. Barker, 3 Burr, 1265; 3 Blacks. Comm. 110; Marberry v. Madison, 1 Cond. Rep. 278; Ang. and Ames on Corp. 633; State v. Wil. Bridge Co., 3 Harr. Rep. 314 ; People v. Steel, 2 Barb. Rep. 416 .

In this case the right of Ellis Sanders, as an elder minister, to occupy and preach in the pulpit, was a corporate and civil right; and wherever the function of the office draws with it the right to use any such property, mandamus will lie.

In one case it was held that the writ would lie although there were no fees or emoluments attached to the office. Fuller v. The Plainfield School, 6 Conn. Rep. 533 ; Ang. and Ames on Corp. 643.

As to the application below for amendment of the re

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turn and answer, I have to say that all such applications are addressed to the discretion of the Court below, and under the act for amendment of pleadings, this Court can only sit in review of that discretion; and to enable this Court to do so intelligibly, and to admit the amendment, there should have been some specific amendment proposed below, which was not done, and this Court consequently can order no amendment in the case.

- As to the other exception, taken on the ground that, after the Court below had discharged the rule, it reopened the case, and ordered it to be reargued before them, it is not a matter of error to be taken advantage of in this Court, as it was entirely within the discretion of the Court below. The record, though the rule had been discharged, was still before them, and subject to their order and discretion. 18 C. L. Reps. 183; 1 Tidd’s Prac. 505.

Wales, in reply:

In all cases whatsoever, the plaintiff, in order to entitle himself to a writ of mandamus, must satisfactorily show a clear and unquestionable legal right to the interposition of the Court, and this must be done by other proof than his own affidavit. If the plaintiff in this case is an elder minister in this body, and has certain functions, this must be made appear by other proof than his own affidavit, as by the certificate of his appointment, .or other legal evidence of it, and by a properly authenticated ‘ copy of the charter of the society, and by other affidavits than his own as to the articles and discipline of the body prescribing his duties and functions. Tapp. on Mand. 342.

The discipline of a Church is no usage in contemplation of law, and, if it were, there is no usage or discipline proved in this case.

In the complaint or affidavit there is a reference not only to the act of incorporation but also to the articles of association; the sixth article of which is as follows: “ Ho minister or teacher shall be privileged to preach or exhort in the Union Church, except with the consent of the trustees and a majority of the congregation.” ' Ho one can fail

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to perceive that this was intended to be an independent church. The Book of Discipline shows that this society was originally subject to the government of the Methodist Episcopal Church, and to its system of bishops and itinerancy, and that it afterwards seceded from that government and established an independent church, subject to the government and control of the society and congregation itself.

The plaintiff does not show how he was debarred of the rights and privileges which he claimed. He does not say in his complaint that either the trustees or congregation prevented him from preaching in the church, or administering the ordinances i of religion therein, or in what way, or by what means he was debarred. Again, he does not say that he has been deprived of any office, ecclesiastical or civil, but simply alleges that he has been debarred of the rights and privileges pertaining to it. He does not show or allege that it was an office having any fees or emoluments attached to it.

In this case the Court below, instead of ordering a peremptory mandamus, ought to have ordered a further return and answer. 9 Wend. Reps. 429.

A peremptory mandamus cannot issue for any defect or insufficiency in the return or answer. If the return is' untrue in substance, an action for false return will lie upon it, but it must be held to be an answer to the rule. State v. Wil. Bridge Co., 3 Harr. Rep. 540 ; Angel and Ames on Corp. 676.

But the counsel for the defendant in error assumes another ground, that the trustees of this society and corporation hold this house, or church, in trust for the use of this elder minister. If so, then this is a case of trust, and the trustees are abusing their trust, and the remedy is in chancery, and a writ of mandamus will not lie, for when there is any other remedy mandamus will not lie: Ang. and Ames on Corp. 652; and the Court will not issue a writ of mandamus in a case where, from the nature of things, it cannot be enforced.

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The Court below having discharged the rule and disissed the case, especially where a term has intervened, could not hear it again, or order it to be reargued before them, because the case was then out of Court.

It must be an office known to the law or judicially known to the Court, or mandamus cannot issue. Tapp. on Mand. 223.

The mere right to preach is a right conferred by ecclesiastical authority, and is therefore an ecclesiastical right merely, and if the preacher is deprived of this right by the action of the ecclesiastical body there is no civil right invaded, unless there be fees, or some temporal emolument attached to the right, which is lost by the invasion of it; and therefore the civil tribunals cannot and will not take cognizance of the wrong complained of.

The preceding statement of the case, exhibited on the record certified and sent up, presents the questions which require our consideration and decision.

The first and most important is that of jurisdiction. For the purpose of ascertaining correctly whether the Superior Court had authority to award the writ of peremptory mandamus, it is necessary to examine and understand the character of the injury complained of by the petitioner, and the remedy which he has sought to obtain. If no legal right has been violated, there can be no application of a legal remedy. The writ of .mandamus is a legal remedy for a legal right. The petitioner states the injury to be the refusal of the trustees of the Union Church of Africans in Wilmington to admit him to preach in the said church whenever he may see proper so to do, and to administer the ordinances and discipline thereof, and to exercise a pastoral charge over the same, and asks the aid of the secular Court by writ of mandamus. The party thus seeking the interposition of the civil power derives his office of elder minister, and his authority to discharge its functions, exclusively from the Methodist Church, and alleges that, according to the discipline and usages of said church, it is

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his. duty and right to preach in the said Union Church in Wilmington whenever he may see proper so to do, and to administer the ordinances thereof, and to exercise a pastoral charge over the same. The right to the office and its functions are both .expressly stated to he derived from ecclesiastical authority, and cannot, under any aspect, he viewed as temporal rights. The petition does not state the loss of any temporal right, or allege any loss of property consequential upon his being refused to admission to preach in said church, or exercise the said spiritual functions.

It does not appear, from any allegation contained in the petition, that any temporal legal right has been infringed, or that the .petitioner has been deprived of any ecclesiastical or temporal office. The only matter of complaint is, that one of the religious societies, over which his ecclesiastical authority, derived from the Conference, existed, refused submission to its exercise. His office and functions over all the other societies remains unaffected; and no doubt the pecuniary compensation, derived from a common fund and incident to the office, remains unimpaired, for no loss or diminution is set forth. The present case, therefore, is only an application for admission to the exercise and discharge of ecclesiastical rights and duties in a particular church, exclusive of any and all temporal emoluments. ■ It can only be regarded as asking the aid of a secular Court to enforce obedience to the authority of the Conference, a body exercising ecclesiastical and not a temporal power. If, then, I am correct in the view taken of the case made in the petition, the Superior Court has no jurisdiction, and erred in awarding the writ of mandamus.

But if has been supposed that the act of incorporation, in connection with the second section of the articles of association, sustains the jurisdiction of the Court, and authorized the awarding of the writ. The answer to this is, that the petition, reciting and relying on the second section of the articles of association, made the whole thereof a part of the case, and rendered it incumbent on the Court

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to consider and respect all the sections. The return to the alternative mandamus sets forth and relies upon the sixth article, which excludes all ministers from admission to preach in the said “Union Church,” unless with the assent of the trustees and a majority of the corporation; and further avers, that no such consent was given, but refused.

The Superior Court, in awarding the writ of peremptory mandamus, were probably influenced by the English decisions, but, after a full and thorough examination of them, I have not been able to discover-a single instance in which relief was granted, unless some legal or temporal right was involved in the case. It is unnecessary here to review them; but it may be useful to advert to an important distinction, which cannot be disregarded when our attention is directed to such precedents. I allude to the judicial jurisdiction in Governments having an established church, whether constitutionally as a part of the organic law, or tolerated by law: in such it may be proper to regard the person entitled to .the office as having, a legal right; for, although conferred ecclesiastically, it is held under and by virtue of constitutional or legal authority. In England the Episcopal Church is a constituent part of the constitution, and has fa legal existence. The ecclesiastical officers hold and are legally seized of the temporalities of the church, and need no act of incorporation for such purpose. The rector being legally entitled to the church and glebe, when deprived or dispossessed may be restored by a writ of mandamus, which is a legal remedy for a legal right. The same jurisdiction has been exercised under the Toleration Acts, by analogy, in favor of dissenting churches having an endowment by deed, through the intervention of trustees : when the ecclesiastical office entitled the occupant or holder of the office discharging the services and duties thereof to temporal emoluments, for the purpose of protecting the temporal rights incident to the office, the secular courts granted the writ of mandamus. The decision in the case of Rex v. Barker, 3 Bur. Rep. 1265 , sustains the view I have taken, as appears from the remarks of Mr.

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Justice Foster: “Here is a legal right. Their ministers are tolerated and allowed; their right is established as a legal right, and as much as any other legal rights.”

In all countries where the church is established by law, it may be consistent with public policy that it should be subject to civil jurisdiction; for, when the law establishes or tolerates, a state of dependence is the legitimate consequence. In Scotland we lately had an illustration of the operation of this principle in their system of an Established Church. I refer to the celebrated Shathbogre case, which resulted in the formation of the Free Church of Scotland; adopting as its basis the voluntary principle, for the express purpose of being emancipated from the control of secular courts, derived from precedents consequent upon the connection of Church and State.

But under our Constitution, which declares “that no power shall or ought to be vested in or assumed by any magistrate, that shall in any case interfere with, or in any manner control, the fights of conscience in tjie free exercise of religious worship,” it would seem a reasonable conclusion that all ecclesiastical offices and their functions must necessarily be excluded from the jurisdiction of the secular courts.

Regarding the whole ecclesiastical system, under our Constitution, as based upon the voluntary principle, it can have neither legal capacity nor existence, and therefore incapable, sui juris, of having legal rights or temporal property ; hence the necessity of obtaining acts of incorporation to create a corporate body, or constituting by deed trustees for the purpose of acquiring and holding property for the use and benefit of churches; but the church, in its ecclesiastical order of functions and discipline, remains intact, and free from the civil and secular jurisdiction.

It appears that, in 4 Harris and McHenry’s Reports, 448, there is a case in which the secular court exercised jurisdiction, on the ground that the church was endowed, but decreed that emoluments which depend on voluntary contribution are not sufficient to warrant the court in issu

Concurrence

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ing a mandamus. In 1 Term Rep. 133, Lectureship not endowed, mandamus refused.

Instances have occurred in this country in which the trustees of Roman Catholic churches have refused to admit priests, although appointed and authorized by a Roman Catholic bishop, as was the case in the Church of St. Louis, at Buffalo, and St. Mary’s Church in Philadelphia, and yet recourse was not had to the civil authority; nor, as far as I am informed, was any attempt made to enforce the ecclesiastical authority by the writ of mandamus. That church, which in other countries has so long used the coercive action of secular courts, well knew that here it would be fruitless and unavailing. To obviate the embarrassment experienced from lay trustees, recourse was had to the legislative power; and in several of the States application was made for such acts of incorporation as would vest the temporalities of the church in the bishop, and thereby create an ecclesiastical corporation solely, having succession independent of the laity. Such was the mode of relief sought by the Roman Church in our State, which was defeated by the passage of a resolution declaring them entitled (as they always have been) to the same rights and privileges as all other religious denominations.

Prom the consideration I have given the subject, it appears to me that the petitioner failed to bring his case within the jurisdiction of the Superior Court. Being of that opinion, it renders it unnecessary for me to advert to the other questions involved; therefore I conclude, 'the judgment of the Superior Court, ordering the peremptory mandamus, ought to be reversed and declared to be of no effect.

I concur in the opinion just announced by the Chancellor, so far as relates to what I conceive to be the main question in the cause; namely, whether the writ of mandamus will lie in any case to restore a minister to his clerical rights and functions, where there are no fees or emoluments attached to his office ?

Concurrence

p. 128

With regard to the other causes of error that have been assigned, namely, the insufficiency of the return, and the rehearing by the Court, after the rule had been once discharged, I deem it unnecessary to consider them, as the ground first alluded to ought, in my judgment, to control the decision of the case. That is, that the writ of mandamus can only be resorted to for the enforcement of a legal right, and not for timóse of a purely ecclesiastical character. So far as I have looked into the authorities, both in England and this country, they.fully sustain this, position ; and, according to the affidavit of the relator, the present is precisely s,uch a case. . The facts show that Ellis Sanders, although a duly constituted preacher, appointed by the Yearly G-eneral Conference, and accepted by the trustees and a majority of the congregation of the “ Union Church of Africans,” under' their rules of discipline, to occupy their pulpit, was not entitled to receive any fixed stipend or salary for his services. Beyond the voluntary contribution of the religious society for which he officiated - as pastor,- he Was in the receipt of no pay, emolument, or compensation. . If, then, he was debarred from the use of any right or privilege, it was simply of his right as elder minister to occupy the pulpit and preach to the congregation constituting the “Union Church of Africans,” and not of any legal or temporal rights. To restore him to his pastoral functions, was the sole object sought to be attained by the application for this writ, which unadvisedly issued; and I am therefore in favor, upon the ground I have stated, of reversing the judgment of the Court below.

Concurring in the general conclusion, already announced by the Chancellor and Judge Milligan, I will take occasion to state at length, and more fully perhaps than may now be necessary, the grounds of my opinion.

The Court below appears to have rested its decision of the case - mainly, if not exclusively, on the ground of the insufficiency of the defendant’s rdturn to the alternative writ of mandamus. But the first question to be considered

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is the sufficiency of the case presented by the petitioner in his affidavit, to entitle him to the redress which he seeks through the instrumentality of, this writ; for if the petitioner had no legal right, or in other words, no right which . a court of law could recognize and enforce, to be admitted or restored to the place or office in question, then no writ of mandamus whatever should have been ordered in the case; and it therefore becomes, if such was the case, wholly immaterial here to consider whether the return was insufficient or not.

The petitioner’s case as stated in his application for the writ is to this effect: that he is a duly constituted elder minister in the church in question, which extends, as he alleges, into several of the States of the "Union, and that in virtue of his office, as such elder minister, he is the pastor, or minister in charge, of a religious society, incorporated under the general law for such purposes, by the name of The Union Church of Africans, in "Wilmington, in this State, and that as such it is his right to preach in the said church whenever he may see proper to do so, and to administer the ordinances and discipline thereof, and to exercise a pastoral charge over it. That the present corporate ' trustees of the church have forcibly excluded him from it, and have debarred and prevented him Horn exercising the rights and functions appertaining to his office; and that, having no other legal remedy in the premises, he prays the Court to issue a writ of mandamus directed to the said church, commanding them to admit him to preach in the church whenever he may see proper to do so, and to exercise the rights before stated, or show cause to the contrary.

The statement of facts contained in his petition is full and particular, and he sets forth at much length such portions of the constitution, discipline and usages of the church as he conceives to be necessary to establish the official character in which he appears before the Court, and the ecclesiastical rights and privileges which he claims to pertain to it. But it contains no allegation, and there is no proof, that there is any emolument or compensation

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of any kind attached to the office of elder minister or preacher in charge of the church in question, or that there is any temporal right or benefit, stipend or salary dependent upon or incident to it. On the contrary, it conclusively appears that the claim and right upon which he re- • lies is purely spiritual and ecclesiastical in its nature, and that it involves no legal or temporal right whatever; and it is now well settled, both in this country and in England, that when such is the case mandamus will not lie. It was so held in the case of Rex v. Blooer, 2 Burr. 1043. In that case the application was to restore the party to the office of curate of the Chapel of Calton. The Chapel was endowed with lands, and the curate of it had a stipend. Lord Mansfield, in deciding the case, remarked: “ This is a mere temporal question,” and afterwards added: “ A. mandamus to restore is the true specific remedy where a person is wrongfully dispossessed of any office, or function which draws after it temporal rights, in all cases where the established course has not provided a specific remedy, by another form of proceeding.” “Here are lands,” he also remarks, “ annexed to this Chapel, which belong to the chaplain in respect of his function;” and adds, by way of conclusion: “ Where there is a temporal right, the Court will assist by way of mandamus, because it is a specific remedy.” The same principle was affirmed and the same distinction recognized in the subsequent case of Rex v. Baker et al., 3 Burr. 1265. The writ in this case was to restore a Protestant dissenting minister, or preacher, to the use of the pulpit of a meeting-house which had been deeded in trust,, together with a garden, to the use of a congregation and preacher; and Lord Mansfield held that the writ would lie, for the same reason and in the same language adopted in the decision before cited: “That where there is a temporal right, the Court will assist by mandamus.” He speaks of the “ endowment of'the pastor-ship,” and afterwards adds: “ Here is a function with emoluments and no specific legal remedy.”

In the cases above cited, the writ was granted on the

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ground .that there were temporal rights or emoluments connected with the function or office. I shall now cite a few cases in which the writ was refused, because there were no such rights or emoluments appurtenant to the place.

The first of these, to which I shall refer, is the ease of The King v. The Bishop of London, 1 Wil. R. 11. This was an application for a writ of mandamus to command the defendant to grant a license to the relator, to preach as lecturer of the parish of St. Ann, Westminster. There were no emoluments or stipend of any kind connected with the office; and, after taking time to consider of the case, the Court discharged the rule, Lee, Chief Justice, observing: “ It appears that this parish has no fixed stipend for a lecturer, but merely depends upon the voluntary contributions of the inhabitants; nor does it appear that there is any certain custom, as to electing a lecturer. Therefore, as there is no certain custom, nor does it appear that either of these persons (the claimants of the place) have the demand of one penny from any parishioner, or anybody whomsoever, but that the contribution to a lecturer is merely voluntary, the question is whether this Court will at all interpose in this matter; and we are of the opinion there is no foundation at all in this case to ground any right upon.” The next is the case of The King v. The Churchwardens of Cloyden, 5 T. R. 713; in this instance the application was for a writ to admit the party to the office of vestry clerk of the parish, but there were no fees or salary annexed to it, and Lord Kenyon, in discharging the rule, rests the decision on this ground among others.

This principle of law has also been clearly recognized and ruled in this country. The case of Runkle v. Winemiller, 4 Harr, and McHenry’s R. 429, is a leading authority on that point. There the object of the writ of mandamus was to restore Mr. Kunkle to the place and function of minister of the congregation of a certain church in Fredericktown, and to the use of the pulpit thereof, with all the privileges and advantages appertaining to the place and

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function. The affidavit alleged that he had been duly inducted into the possession of his function of minister of said church and the einoluments thereto belonging, and that those emoluments consisted of the enjoyment of a parsonage-house, eighteen cords of wood annually, and an annual salary of eighty pounds of current money. The case was sustained by as able counsel as the bar of Maryland has produced, Luther Martin and William Pinckney, and the. Court held, after full argument, that a writ of mandamus would lie. Chase, Judge, in deciding it, remarked: “ The Court are of the opinion that every endowed minister, of any sect or denomination of Christians, who has been wrongfully dispossessed of his pulpit, is entitled to the writ of mandamus to be restored to his function, and the temporal rights with which it is endowed;” and again, “ The office or function of minister must be endqwed, or a mandamus to restore cannot be granted. Endowment does not necessarily mean that lands and tithes must be annexed to the living, in exclusion of any other means of support; but a stipend, rent, emoluments and advantages of any kind given and secured to the minister during the time he shall officiate as minister, as a compensation for his services, is an endowment;” “the right to the function as the substancé, draws to it the emoluments as appertaining to it;” and concludes with this remark: “ Here there is a function with emoluments, and unless the Court interpose and grant a mandamus to restore him to his pulpit, and the. use of the church, he will be without any specific remedy to recover the pulpit, and without remedy to recover the emoluments stipulated to be furnished; for the emoluments are annexed, and appurtenant to the function, and unless he is restored to it he will be without remedy to receive them.”

Upon the authority of these cases, and the principle which they have so clearly established in regard to this writ, I am of the opinion that the Court below erred in entertaining the application of Ellis Sanders for a writ of mandamus in this case. There is no endowment, no emo

Dissent

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lament alleged or shown to be annexed to the pastoral charge to which he claims to be entitled,-, and from which he complains that he has been and is still excluded by the trustees; and as there is no temporal or legal right shown to be involved in the matter, and as it appears that the only right which he asserts in regard to the office and functions claimed by him is merely an ecclesiastical or spiritual right, it is not a case for the interposition or within the jurisdiction of a court of law, and consequently it was not a case in which a writ of mandamus should have issued below. For it is not the province of a court of law to enforce such lights. A court of law cannot enforce a merely moral, or a purely equitable right, much less a merely spiritual or ecclesiastical right. When, however, the possession or enjoyment of a temporal right, as the-enjoyment of an endowment or an emolument is attached to the ecclesiastical office and its functions, and is consequently dependent upon the exercise and enjoyment of the spiritual right, the law, out of the regard which it entertains for the temporal right and benefit of which it has jurisdiction, will interpose by mandamus to restore the party wrongfully excluded from his ecclesiastical functions, where he has no other specific legal remedy for the temporal right, to prevent a failure of justice in this respect, which would otherwise occur.

I' would simply say, in addition to this, that I do not consider that the fact that the trustees of this church were incorporated under the general law to take charge of the temporalities df the church, affects this principle of law as applicable to the case. I do not deem it necessary to refer to other questions which were raised and discussed in the argument, as the principal point which I have already considered disposes of the whole case. I am therefore of opinion that the proceedings of the Court below in this case must be reversed.

dissented, for the reasons announced by him in the Court below, which were as follows:

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I have no donbt of the jurisdiction of the Court to restore by mandamus a minister illegally excluded from a pulpit which he has the right to occupy. The application of this writ to that extent was affirmed by Lord Mansfield, in Rex v. Barker, 3 Burr. 1265, the principle of which decision has been since applied in a multitude of cases in England and in the United States. “Where there is a right to execute an office, perform a service, or exercise a franchise, more especially if it be in a matter of public concern, or attended with profit, and a person is kept out of possession, or dispossessed of such right, and has no other specific legal remedy, this Court ought to assist by mandamus, upon reasons of justice, and upon reasons of public policy, to preserve peace, order, and good government.”

1. It is no objection whatever to the exercise of this jurisdiction that the office or right appertains to a religious society, or that the ascertaining the right of the relator to be restored involves an inquiry into church government or tenets. If it be necessary, to enable the Court to exercise its jurisdiction and administer that justice which will otherwise fail, the Court will do both. It will not assume to judge of the scriptural correctness of tenets or the propriety of discipline, but it will inquire what they are, if such inquiry connects itself with the title claimed to the office, place, or right sought; and if a minister duly authorized, according to the constitution and discipline of a church, to occupy its pulpit and teach its doctrines, be illegally deprived of this right, or prevented from its exercise, that is a proper case for the writ of mandamus within the jurisdiction of 'this Court to prevent a failure of justic'e. The People v. Steele, 2 Barbour R. 402.

2. The mode of proceeding is by petition, rules and answer, or return; a preliminary rule to show cause is common, but not essential. The first writ of mandamus being in the alternative, is equivalent to the rule to show cause, and may be issued in a clear case presented by the petition. The return must be positive, pointed, and distinct in denial of the facts, and sufficient in itself, for it cannot be tra

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versed. It may not state conclusions of law, and, if it set up a different constitution, it must still negative the one alleged; and, when the writ sets out the mode of election, it will not be sufficient for the return to say he was not elected, or not duly elected,-but it must traverse some of the facts of the election as alleged. Wilcock on Corp. § 179-80, &c.; Ang. and Ames on Corp. 669.

The important questions in this case are, whether Ellis Sanders has been duly appointed and inducted as the elder minister of this church according to its constitution and discipline ? whether he has the charge of that church, and the right to occupy its pulpit, to preach and dispense its ordinances ?

The petition states such an appointment, induction, and right, with the manner of the appointment, and the facts at large. It states the association, in 1813, of certain free colored people together as a religious society or congregation, the incorporation of their trustees under the general law for incorporating religious societies; that the property of the corporation was held by the trustees “ in trust for the religious uses of the ministers and preachers of the said Union Church, for them and their African brethren and their descendants of the African race, and also for the ministers and teachers of the African brethren duly licensed and ordained according to the discipline adopted by the corporation;” that the trustees with the funds contributed by the members purchased the lot and erected the church, which has always been held “ for the use of the members and ministers of said society, duly licensed and ordained, according to the rules and discipline thereof.” The petition then sets forth the further organization of the church by the election or appointment of officers, with their several functions, according to the discipline, among which were certain officers called elder ministers, “ who were invested with the general superintendence of all the societies composing the African Union Church; and that each elder minister is, under the usage and discipline of said church, by virtue of his office, “ the minister in charge of any so

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ciety where he may be.” It then states the manner of selecting, appointing, and ordaining elder ministers; the membership, license, ordination to deacon’s office, nomi- , nation, trial sermon, presentation and ordination as elder minister of the petitioner, and his installation, together with Isaac Barney, “ in the charge of the societies composing the said African Union Church;” and that the southern societies, including the original society in Wilmington, fell under his immediate charge and superintendence as elder minister, and still remain under his charge; that, by virtue of said office of elder minister, and according to the usages and discipline of said church, it his duty and right to preach in the said Union Church in Wilmington whenever he may see proper so to do, and to administer the ordinances and discipline thereof. He then complains of his exclusion by the present trustees.

The return traverses none of these facts as facts; but, after objecting to the grant of a mandamus, because the office of elder minister is not an office known to the law, &c., denies generally that the petitioner is an elder minister in the said Union Church, or that it his duty, or right to preach in the said Union Church whenever he may see proper so to do, or to administer the ordinances arid discipline thereof, &c.; and then sets out other provisions of the articles of association, averring that they have not been complied with.

By the rules before stated, this return is insufficient. It does not deny the facts stated in the writ, and it states a. mere conclusion of law;; or, at most, it states only a different constitution without denying the one set up in the petition. It offers nothing tangible, and denies nothing material, which would furnish the relator with any remedy by action, which is his only resort, if-the return be held sufficient. He cannot traverse the return, and the return does not deny the facts upon which he rests his case. He is without remedy, therefore, unless the respondents be held to the established rules in such proceedings, which, for want of a sufficient answer, entitle the relator to a peremptory mandamus.

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3. On the general merits of the case growing out of a construction of the constitution and discipline of this church, much doubt has been thrown over my mind by the second argument. The respondent’s position rests on the repeated use of certain expressions in the Articles of Association and Discipline, requiring the consent of the congregations to the induction of a preacher, and showing a fixed opposition to the appointment of preachers over them by a Conference, or any independent power. On this ground they seceded from the Methodist Episcopal Church, which claimed and exercised this power over them, as it still does over all its own societies. The answer to this, given generally in the first, and more at large in the second argument, is this: that the Conference, against whose power they were then contending, was a body which was not a part of their own church organization; it was a body composed of white ministers, in which they were not represented; that, while they threw off its authority, they provided for a similar Conference as a part of their own organization, composed of their own official members, but without defining its powers; that, by constant usage from the beginning, this-body nominated the elder ministers; leaving it still to the-congregations and ruling elders, after trial, to accept or refuse the person nominated; and that the expressions so often repeated, that no preacher should have the right to preach, except to those who were willing to hear him, have reference to a settled and recognized distinction, always existing, between licensed preachers, deacons, and elder ministers.

The Court has always been embarrassed for a sensible and consistent construction of the Articles of Association and Discipline of this church on the face of these papers. They said, on the former argument, “ that it was difficult to understand, from the Articles of Association and Book of Discipline, what distinct' system of church government these people proposed for themselvesbut on these papers they were unable to yield to the distinction contended for between preachers of different grades, and inclined to give

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force to the exclusion of all preachers, except with the continued consent of the congregations. The practical effect of this construction would he to disorganize the church as a system, and to defeat one of the objects of the association, which was to fqrm a union of churches. The system provides for a Conference, for what purpose, if none of its acts have any effect on the individual congregations, even with their consent, unless by their continuous consent ? It may be doubted whether the Court has heretofore given force to extraneous evidence in ascertaining what was their constitution and discipline. In other cases, usage has been resorted to as a controlling evidence. Even the corporate or denominational name, in connection with the contemporaneous acts of the corporations, has been held a sufficient guide as to the nature of the trust. Miller v. Gable, 2 Denio Rep. 548 ; The People v. Steele, 2 Barbour’s Rep. 405. Here the denominational name is “ The Union Church of Africans.” The system provides for an association of churches,—for an annual Conference, as a recognized body; and the constant usage, as alleged, and not denied, has been to induct .elder ministers, as the relator claims to have been inducted, viz., by nomination of the Conference, trial sermon, approbation of the ruling elders and congregation, and formal installation, as stated in the petition. Ellis Sanders claims to be the elder minister having charge of this congregation, and entitled to preach in this church, not merely by virtue of the Conference nominar tian, but by the consent of the elders and congregation, given in the usual form after a trial sermon, which, he alleges, is according to the constitution and discipline of the African Union Church. A construction establishing his claim would seem to me better calculated to carry out the general purposes of this church organization, taking in view its proposed objects and its usages hitherto, though upon the face of the very imperfect and confused Articles of Association and printed Book of Discipline alone, such a construction may not be sustained.

Cases cited

People ex rel. Dikeman v. President & Trustees of Brooklyn 13 Wend. 130 N.Y. p. 109
M'Clung v. Silliman 6 Wheat. 598 SCOTUS 1821-03-16 p. 112
Columbian Insurance v. Wheelright 7 Wheat. 534 SCOTUS 1822-03-15 p. 112
Jeans v. Jeans 3 Harr. 136 Del. p. 113, p. 114