« הקודםהמשך »
wrote a book against it,” &c.* From the latter part of this quotation, we learn, that the word church is here used in its proper sense, as including only members in covenant—that the church, in this sense, had the power of levying and collecting a tax, for the support of its minister—that the power thus exercised was not mere church power, as it extended to those who were not members, and consequently, that it must have been conferred by some prorision or enactment of the General Court.
These conclusions are all confirmed by Hubbard's account of the same affair. “About this time, some difference happened in New England about the way of raising the maintenance of the ministers, in regard that many CHURCHES proceeded therein rather by way of taxation, than by contribution. This new way of easement was offensive to some in the country. Amongst others, it was very grievous to one Briscoe, a tanner, of Watertown; for this man published a book against the way of maintenance, wherein himself, and those that were NO MEMBERS, were taxed to maintain the ministers of the place they belonged unto. He was convened before the court to answer for his reproachful speeches; but for his arguments, they were not worth the answering; for he that shall deny the exerting of the civil power to provide for the comfortable subsistence of them that preach the Gospel, fuste potius erudiendus quam argumento.”+-What was matter of inference from Winthrop's account is here expressly recorded,—that the churches were authorized by “the civil power" to collect taxes of their members and others for the support of ministers; or, in other words, that they were parochial corporations.
Indeed, the churches, at the period of which we are speaking, must have had parochial authority, if this existed anywhere; for there were no parishes, as such, in existence, and parochial authority was not given to towns, until several years later. Chief Justice Parker dates the commencement of “legal obligation" on the part of towns to provide for the maintenance of ministers, in 1652. I
We state it, therefore, as unquestionable fact, that the early churches of Massachusetts possessed and exercised parochial powers. But such powers they could not have exercised, had they not been, in some way, legally incorporated.
4. The act of the General Court, accepting and approving of the Cambridge Platform, was a virtual incorporation of the churches. It may not be generally known, that the Synod who framed this Platform assembled by order of the General Court||--that the members were supported, while in session, at the public charge that the Platform, when framed, was " presented to the General Court for their consideration and acceptance”-and that the same “ was most thankfully accepted and approved."* “It passed the test of the whole General Court, both magistrates and deputies, and the practice of it was commended to all the churches of the jurisdiction.”of This order, or act, passed “in the month of October, 1648.” In 1650, the Platform was again approved by the General Court, and “ordered to be printed, for the benefit of the churches in present and after times.” By these acts of the courts, especially the first, the churches were virtually established and incorporated, with all the powers and liberties granted to them in the Platform. But the Platform grants to the churches, through the instrumentality of their deacons, the power of receiving, holding, and disposing of property. “The office and work of a deacon is to receive the offerings of the church, gifts given to the church, and to keep the treasury of the church, and therewith to serve the tables which the church is to provide for ; as the Lord's table, the table of the ministers, and of such as are in necessity.”I By the acceptance of this provision of the Platform, the churches were virtually incorporated, with the power of holding and controlling their own funds.
* Hist. vol. ii. p. 93. It will be understood, here and elsewhere, when shewing the state of things in the early settlement of our country, that we are merely exhibiting facts, without expressing an opinion, one way or the other, as to their propriety. Hubbard's Hist. p. 412.
Mass. Term Reports, vol. xvi. p. 516. Gov. Winthrop says, “ The order was sent to the churches within this jurisdiction; and to the churches in other jurisdictions, a letter was sent withal.” vol. ii. p. 269.
5. The churches of Massachusetts have, from the first, exercised the right of holding and controlling different kinds of property. They held, as we have seen, the first houses of worship. They early commenced the purchasing of lands. Would they have done this, if they were not allowed to take them in fee, and to hold them in succession ? Frequent grants of land, and donations of other property, were made to the churches, all which supposes that they were acknowledged to have the power of holding and improving them. And the property thus acquired, they did hold and improve. They have held it, by their deacons, in uninterrupted succession, and (as was proved in regard to the church in Dedham) have “had the exclusive control and management of it," to the present time.s Chief Justice Parker does indeed suppose that some “ feoffee or grantee in trust,” to hold the property of the church, might, in early times, have been appointed by the county court;1 but the supposition is mere conjecture, without a shadow of evidence to support it. The records of all the oldest churches may be consulted, and the existence of a grantee in trust, appointed by the county court, to take the charge of the church's property, shall not be so much as intiinated in one of them. No; the churches have held and controlled their own property, from the first ; and, by so doing, have proved themselves to be in possession of the powers and privileges of legally incorporated bodies.
* Mather, vol. ï. p. 182. Hubbard, p. 550. Chap. vii.
| Some of the property of the first church in Dedham was obtained by purchase. See Mass. Term Reports, vol. xvi. p. 489. ♡ Mass. Term Reports, vol. xvi. p. 491.
1 Ibid. p. 497.
This argument alone would sustain the corporate existence of the churches, were all that has been said previously to be set aside; For the churches, it appears, have so long, and by so general consent, exercised the powers of corporations, in holding and controlling property, that their claim to be regarded as incorporate bodies is well established on the ground of prescription or custom, if on no other. In Coke on Littleton, it is said, “ A body politic or incorporate may commence and be established three manner of ways, viz. by prescription, by letters patent, or by act of Parliament.” “ Prescription is a title taking his substance of use and time allowed by law. Where a man will plead a title of prescription of custome, he shall say, that such a custome hath been used from time whereof the memory of man runneth not to the contrary.” In Blackstone, it is also said, “With us in England, the king's consent is absolutely necessary to the erection of any corporation, either impliedly or expressly given. The king's implied consent is to be found in corporations which exist by the force of the common law, common law being nothing else but custom, arising from the universal agreement of the whole community. Another method of implication, whereby the king's consent is presumed, is as to all corporations by prescription, which have existed as corporations, time whereof the memory of man runneth not to the contrary; and therefore are looked upon in law to be well created.”
"It is a well known fact, that custom and prescription are far from being more restricted here, than in England.” It was decided by Chief Justice Parsons many years ago, that “this country has now been settled long enough, to allow of the time necessary to prove a prescription."* Setting, therefore, all other considerations aside, the fact, that the churches of Massachusetts have, by universal consent, and for almost two hundred years, exercised the right of holding and disposing of property, is evidence enough of their corporate existence. They have acted as corporations,“ time whereof the memory of man runneth not to the contrary; and therefore are to be looked upon as well created.”
6. In 1754, an act passed the Provincial Legislature, which went to confirm and establish the corporate existence and powers of the churches. In this act it is assumed, that grants and donations had previously been made, not only to the churches, but to " the poor of the churches,” and to the officers of the churches. It is farther assumed, that “these several grants and donations” were intended to “ go in succession.” But, “ doubts had arisen, in what cases such donations and grants might operate, so as to go in succession.” Doubts might well arise as to what had been given to
* Mass. Term Reports, vol. vi. p. 90.
“the poor of the churches,” and to the officers of the churches, if not in respect to church property itself. Wherefore, to remove all doubt, this law of 1754, was enacted, and “the deacons of the several Protestant churches (not Episcopal) were incorporated, to take in succession all grants and donations, whether real or personal, made either to their several churches, the poor of their churches, or to them and their successors, and to sue and defend in all actions touching the same. And wherever the ministers or elders shall, in the original grants or donations, have been joined with the deacons; in such cases, such officers and their successors, together with the deacons, shall be deemed the corporation for such purposes as aforesaid ;-saving, that no alienation of any lands belonging to churches, hereafter made by the deacons, without the consent of the church, or a committee of the church, for that purpose appointed, shall be sufficient to pass the same. And the several churches in this province, are hereby empowered to choose a committee, to call the deacons, or other church officers, to an account, and if need be, to commence and prosecute any suits, touching the same, and also to advise and assist such deacons in the administration of the affairs aforesaid."*
Chief Justice Parker asserts that “this statute was predicated upon the fact, that much property had been conveyed to churches, who were incapable of holding it in succession.”+ But, with due deference, we must be allowed to say, that he is obviously mistaken. This statute does not assert or imply, that the churches are “incapable of holding in succession.” But, “doubts have arisen,” as, in respect to some of the property intended to be secured by the act, they might well arise; and the act was intended rather to remove doubts, and to confirm existing powers and rights, than to create new ones. It is entitled “ an act for the better securing grants and donations to pious uses ;" for their BETTER securing—implying, that they were not regarded previously as insecure, but the Legislature wished, if possible, to increase the security. Indeed, it is evident from the letter of the act itself, that the churches had been regarded as capable of holding property in succession. For why were “grants and donations” made to churches, “ by sundry well disposed persons,” with “the intent and expectation that they should go in succession;" if the churches were not regarded as capable of holding in succession?
But it will be said, If the churches were previously regarded as incorporate bodies, then the act, of which we are speaking, which empowered the deacons to hold their property in trust, was an infringement of their existing rights.—This inference would be just, if the act in question had taken the property of the churches entirely out of their hands, and from under their supervision and
* Province Laws, p. 606. - + Mass. Term Reports, vol. xvi. p. 497.
Jegal hold upon issarily implying that miring to the church's
control. But it did not. It went rather to confirm than to diminish their existing rights. The act, to be sure, incorporated the deacons; but it virtually incorporated the churches over them with (as C. J. Parker expresses it) “ supervisory powers."* For, in the first place, the deacons are but the servants of the church, who can be appointed or removed at pleasure. And then, while in office, they cannot “ alienate any lands belonging to the church” without its consent; necessarily implying that the church still retains a legal hold upon its lands. And besides, the church is expressly empowered “ to choose a committee to call the deacons to an account; and if need be, to commence and prosecute any suits"+ against them; and also “ to advise and assist them in the administration” of the church's affairs.—This act was obviously intended, as it actually goes, to confirm the corporate powers of the churches; to protect them in the exercise of their legal rights ; and to increase, if possible, the security and certainty, that their property shall descend in uninterrupted succession, and never be wrested from their hands.
The act of which we have been speaking, constructed with so much care and wisdom for the security of the churches, was revised and re-enacted, Feb. 20, 1786, and is now a law of the Commonwealth. Its operation was uniformly happy, and (so far as we know) entirely satisfactory to the churches, affording them all the security they desired, until interrupted by some late decisions of the Supreme Judicial Court—the same to which we have already referred, as depriving the church of its right in the choice of pastor. See number for February, p. 73.
These decisions bear upon the rights of the churches, in both cases, in the same way, viz. by denying their independent existence, and making them the mere appendages of a parish. Says Chief Justice Parker, “ The only circumstance which gives a church any legal character, is its connexion with some regularly constituted society." "A church cannot subsist, without some religious community to which it is attached." “As to all civil purposes, the secession of a whole church from the parish would be an ertinction of the church; and it is competent to the members of the parish to institute a new church, or to engraft one upon the old stock, if any of it should remain ; and this new church would succeed to all the rights of the old, in relation to the parish.” “If all the members of a church should withdraw, leaving not even the deacons, or members enough to elect them, it might be necessary to apply to the Legislature, to appoint some new trustee of the property, until a new church should be organized within the parish. But where members enough are left, to exe
* Mass. Term Reports, vol. xvi. p. 501.
+ Is not the power here given to churches complete proof, of itself, of their corporate existence ? They may, by their committee," commence and prosecute any suits.”