The Clergyman's Hand-book of Law Part 3

*96.* _Curate, Induction, Rector._-The _jus patronatus_ of the Spanish law has been abrogated in Louisiana. The wardens of the church can not compel a bishop to inst.i.tute a curate of their appointment, nor is he in any sense subordinate in his clerical functions to the wardens of any church within his diocese.(176) In the absence of a positive rule of the ecclesiastical body, no ceremony of induction is necessary for the rector of a parish.(177) A clergyman appointed "permanently" to a rectors.h.i.+p holds it for an indefinite period during the pleasure of the contracting parties, and either of the contracting parties may give the other notice of termination, and with the concurrence of the higher ecclesiastical authority of the diocese, a change may be made.(178) It is doubtful, however, whether in most States a permanent appointment would not be construed as a contract for life, determinable only for good cause.(179)

*97.* _Controversy, Tribunal, Decision._-When the clergyman and his paris.h.i.+oners submit a controversy to an ecclesiastical tribunal, the decision, if not impeached for good cause, is justification in the party conforming to it.(180) And a minister who submits to a church tribunal and is ousted after fair hearing and trial, can not obtain a writ of mandamus from the civil court to compel his reinstatement.(181) Also, after a minister has been dismissed in due manner by the tribunal of his denomination, the civil court will enjoin him from usurping his office.(182)

*98.* _Priest, Dwelling, Servant._-A Catholic priest in charge of a congregation at the will of the bishop and occupying a dwelling-house belonging to the church, is a servant and not a tenant, and his right to occupancy ceases with his services.(183) The law is different with regard to a Methodist minister who is in charge of his parish by an annual conference and can not be ejected by the congregation or bishop until the next conference, as he has possession of the church property without superior authority.(184)

*99.* _Injunction, Bishop, Priest, Trial._-On application for an injunction to restrain the bishop from pa.s.sing a sentence against a priest, the only ground on which a court can exercise jurisdiction is that the threatened action of the bishop will affect the civil rights of the priest.(185) A bishop can not remove a priest without an accusation, hearing, or trial, and forbid him to exercise any priestly function where such removal would cut off the priest's income and destroy his means of living in his vocation.(186) However, in the same case it was held that a complaint stating that the bishop failed and neglected to a.s.sign the plaintiff to the exercise of his office of priest in said diocese to the plaintiff's damage, etc., failed to show that any right of property or civil right was involved and the priest was non-suited, while in the former case an injunction was issued against the bishop.(187)

*100.* _Confession, Privacy, Authority._-A Catholic priest, although about to administer an office of his religion to a sick person at the latter's request, has no legal authority, by virtue of his priestly character, to forcibly remove from the room a person lawfully there.(188)

*101.* _Debts, Permission, Presumed._-Notwithstanding a rule or ecclesiastical law of the church that a pastor shall not contract debts in the name or for the sake of the church without the written permission of the bishop, such written permission is not evidence that debts contracted under it are the legal debts of the bishop. The authority which bishops delegate to priests is under the ecclesiastical law and prima facie ecclesiastical authority, and must be presumed to be so in the absence of all evidence to the contrary.(189)

*102.* _Official Acts, Subscriptions._-The official acts of a minister coming in question incidentally, unless contrary to the statute, are as valid as the official acts of any other officer.(190) A clergyman who was engaged to conduct dedication services and was requested by the officers of the local corporation to solicit subscriptions for paying off the indebtedness of the church, but was not appointed agent to receive such subscriptions, had no authority to accept a subscription for the corporation.(191)

*103.* _Exemptions, Clergy._-The exemptions given ministers by the statutes of some States are liberally construed.(192) Without any statutory exemption, the clergy are liable for all duties required of other citizens.(193)

*104.* _Minister, Contributions, Deposed._-No religious teacher or minister can be enjoined from receiving voluntary contributions, although he has been deposed by some ecclesiastical tribunal.(194)

*105.* _Fees, Usages, Excess._-The fees of a priest of the Catholic Church are regulated by the laws and usages of that Church, and where in this country the pew rent and collections go for the support of the priest and the current church expenses, a priest is not accountable for the excess of such collections over these expenditures.(195)

*106.* _Salary, Fees._-Under the act of March, 1814, incorporating a congregation, the congregation, being the legal owners and temporal administrators of the property which it was authorized to hold, had the exclusive power to fix the salary of the parish priest or the tariff of fees for marriages, burial, etc. No such power could be exercised under that act by the Pope or any bishop.(196)

*107.* _Clergyman, Salary._-Where a clergyman agreed with a congregation that the salary should be what could be raised by subscription, the congregation was bound to use due diligence in procuring subscriptions, and as it did so, that was all that the clergyman could recover.(197)

*108.* _Curate, Services._-In an action by a curate against a religious corporation for personal services, the court will not inquire into the spiritual relations existing between the parties, but will examine their legal rights only.(198)

*109.* _Minister, Dismissal, Money Advanced._-After a parish has voted to dismiss the minister, it is not competent to prove irregular conduct or immorality in answer to his claim for salary, without alleging it in the vote of dismissal.(199) In Illinois it was held that a priest who advanced money from his private resources for improving church property, had an equitable lien upon the property for all the money advanced, with legal interest.(200) But in Pennsylvania, where a priest under the direction of the bishop built a church in his parish for mission purposes, and in doing so expended some of his own money, it was held that in the absence of proof of any rule or custom of the Catholic Church making the payment of such expenses obligatory on the parish, that he could not recover the money so expended from his congregation.(201)

CHAPTER IX. MEMBERs.h.i.+P

*110.* _Business, Religious Members.h.i.+p._-Unless there is some other law or rule to the contrary, the male members of the congregation over twenty-one years of age const.i.tute the business members.h.i.+p of a religious society.(202) But the question of members.h.i.+p of religious societies or congregations is left to be determined by the rules of the religious denomination to which they belong.(203) And where a condition of members.h.i.+p is that the person must contribute to the support of the church and be a communicant, if he is not a communicant he is not ent.i.tled to vote.(204)

*111.* _Regular, Doctrines, Support._-The ones who adhere and submit to the regular order and doctrines of the church, although a minority, const.i.tute the true congregation.(205) At least two things must concur to qualify a person as a voter: first, stated attendance at divine wors.h.i.+p in the congregation; and, second, contribution to the support of the church.(206) The list of members kept by the clerk or secretary of the congregation is evidence of members.h.i.+p.(207) A person who denies any part of the system of theology received and taught by the denomination is not a member of the church.(208)

*112.* _Factions, Authority._-Where two factions of a church, each claiming to be the church, try members of the other faction, a court may determine which of the factions is the authorized authority or that the action taken by either or both of them is nugatory for want of authority.(209)

*113.* _Faith, Burial._-Whether a person died in the faith of the Roman Catholic Church so as to be ent.i.tled to burial in its cemetery, is not a question within the jurisdiction of civil courts, but must be decided by the ecclesiastical authorities.(210)

*114.* _Rules, Members.h.i.+p._-Every denomination has the right to prescribe by rules, its const.i.tution, or its by-laws, the conditions of members.h.i.+p; and any one who will not subscribe to and practise the doctrines of the denomination is not a member.(211)

*115.* _Minor._-Where the legal members of a society that is incorporated consist of male members of the church of full age, when minor sons become of age, they become legal members of the corporation, provided they remain in the church.(212)

*116.* _Officers, Non-Members._-It has been held that a person may be an officer or member of the church corporation or its temporal concerns without being a member of the denomination.(213)

*117.* _Debts, Unincorporated Parish._-In Connecticut members of an ecclesiastical society formed by voluntary a.s.sociation under the statutes of the State are not individually liable for the debts of such society.(214) But where there is no statute on the subject, the members of an unincorporated parish are liable for lawful debts contracted or ratified by them, and their property may be levied on for such debts incurred or judgments rendered while they are members of the society.(215) The members of an unincorporated parish may be sued to recover the salary of a deceased pastor up to the time of his death.(216)

*118.* _Execution, Property._-While an execution against a territorial parish may be levied on the property of a member of the parish, it can not be levied on property of a person who ceased to be a member before the levy.(217)

*119.* _Incorporated, Subscriptions._-The members of an incorporated poll parish are not individually liable on a judgment and execution against the corporation, excepting on the unpaid subscriptions.(218)

*120.* _Expelled, Merits._-Mandamus can not be resorted to to restore a member regularly expelled from his church, as a court will not inquire into the merits of the case.(219)

*121.* _Lay Members, Appointed._-Where the statute provides that two lay members of the corporation of a Catholic parish shall be appointed annually "by the committee of the congregation," the members of the congregation have no right to elect said two members, and those appointed in the proper manner are lawful officers.(220)

CHAPTER X. HERESY AND SECESSION

*122.* _Mother Church, Control._-A majority of the members of a congregation can not by their vote leave the church and transfer the property of the congregation to another church so long as any portion of the congregation remains faithful to the mother church of which such congregation forms a part. Such minority shall retain control of the property.(221)

*123.* _Seceders, Funds._-Nor can seceders from a religious denomination retain the funds in their hands as trustees on the ground that they were members of the society when the funds accrued.(222) The t.i.tle to church property in a divided congregation is in that part of the congregation which is acting in harmony with its own law; and the ecclesiastical laws and principles which were accepted among them before the dispute began are the standards for determining which party is right.(223)

*124.* _Society, Foreign Language, Independent._-The formation of a society distinct from the rest of the congregation for the purpose of instruction in a portion of the doctrine of the same church in a foreign language is not a separation from the congregation, although it has its own minister and officers.(224) Where an independent congregation of one denomination votes unanimously to go over to another denomination, and the t.i.tle to the church property is in the parish corporation, the seceders take with them the church property.(225)

*125.* _Subordinate, Incorporated._-A religious society subordinate to church judicatures, which declares itself independent and becomes incorporated under the general law of the state and subsequently purchases land and takes t.i.tle in the name of the corporation, holds such land independently of such church judicatures.(226)

*126.* _"__Church,__"__ Seceders, Debt._-Where a religious society amended its const.i.tution as provided therein, those who adhered to the amended const.i.tution const.i.tuted the "church," and those who refused to do so were seceders.(227) After seceding, a member of a parish is liable for a debt existing at the time of his secession.(228)

*127.* _Bible, Const.i.tution, Withdrawal._-A religious organization that takes the Bible as its const.i.tution can not declare a member a seceder who interprets it contrary to the Augsburg Confession of the denomination.(229) What amounts to a voluntary withdrawal of members from a religious a.s.sociation, is a question of law.(230)

*128.* _Majority, Obligation._-The fact that a majority of the members of a religious corporation secede therefrom by a vote, does not affect its obligation entered into prior thereto.(231) Two factions of a church separating and keeping up different organizations may both still retain their members.h.i.+p in the denomination.(232)

*129.* _Division, Funds._-Where there is a division in a denomination by the secession of a part of the members from the mother church, the Legislature has no authority to divide the funds and give a part to the seceding division.(233)

*130.* _Methodist, Slaveholding, Non-Slaveholding, Quarrel, Schism, Secession._-The division of the Methodist church into distinct organizations of slaveholding and non-slaveholding States, was not a secession and neither division lost its interest in the common property.(234) A quarrel in a congregation growing out of an illegal election followed by the majority excluding the minority from the church, is not a schism, and is no ground for a division of the church property.(235) The secession of a whole congregation does not carry with it the church property; and those who are left and adhere to the mother church retain control of the property.(236) When the seceders from one church join another, they forfeit all claim to any interest held by the former and lose ident.i.ty with it.(237)

CHAPTER XI. EXCOMMUNICATION

*131.* _Definitions, Minor._-Excommunication, as construed in law, is the official announcement by the superior authority of the termination of members.h.i.+p in a religious body and the forfeiture of spiritual privileges of the church. It is one of the methods of discipline in the nature of expulsion from members.h.i.+p in a fraternity, and the fact of expulsion from a church is conclusive proof that the person expelled is not a member of such church. Whether the excommunication was wrong or not can not be examined into in the courts of the State, and such expelled member can not maintain a suit in relation to church property nor vote for trustees.(238)

*132.* _Major Excommunication._-As excommunication _non tolerati_ affects the rights of citizens.h.i.+p, it is not lawful in England nor the United States. To say that A. has been excommunicated in any form, if untrue, is slander.(239)

*133.* _Vote, Sentence._-When a vote of excommunication from a church has been pa.s.sed in the Congregational church and the offender thereby declared no longer a member, the sentence may be promulgated by being read in the presence of the congregation by the pastor.(240)

*134.* _Trustees, Disqualified._-The trustees of a church who have been excommunicated are not thereby disqualified in law to act as trustees.(241)