MISCELLANEOUS DEPARTMENT. UNITARIAN EXPOSITION OF THE RIGHTS OF THE CHURCHES IN 1806. THE following "digest of the ancient laws" of Massachusetts "relative to the constitution and rights of the churches," is from "the Monthly Anthology and Boston Review," for Nov. 1806. The "Society of Gentlemen,” by whom the Anthology was conducted, included the leading Unitarians in and around Boston at that period. The Anthology stood for several years, as many of our readers will remember, in direct opposition, on religious subjects, to the Panoplist. Although the remarks which follow have respect particularly to the churches in Boston, they will apply, with little modification, to the churches throughout the State. GENTLEMEN, To the Editors of the Anthology. Having lately examined the ancient laws of this State, relative to the constitution and rights of churches in the town of Boston, and reduced them into a digest, I submit it to you for insertion, provided you shall not deem it incompatible with the object of your useful miscellany. ANTIQUARIUS. THE RIGHTS OF PROTESTANT CHURCHES IN THE TOWN OF BOSTON. To constitute a body corporate, it is not necessary that there should be a formal act of incorporation. For if any body of men are, by the supreme authority of the State, recognized as such, it will be a virtual act of incorporation. In the early settlement of this Commonwealth, so unrefined were the inhabitants in their legal notions, that districts were constituted and invested with municipal rights by a single order of the governor and assistants of the colony, that they should be called by certain names. There is no other act of incorporation for the towns of Boston, Salem, Ipswich, and most others in the Commonwealth. In considering the rights of the churches in Boston, we shall have occasion to notice the above principle, as none of them have, until very lately, been incorporated into distinct religious communities by special acts of the government. The congregations in Boston are invested with rights and immunities, which have descended entire through successive generations. Now where a body of men do possess certain rights, which they can, under a general name, and in their united capacity, legally maintain, which rights have descended to them, but will not die with them; they are corporations, "maintaining a perpetual succession, and enjoying a kind of legal immortality." As for the origin of these communities, they may claim corporate rights both from prescription, and by implication from acts of the colony, province, and commonwealth. They have names, by which they are distinguished from each other; they may raise monies; they may sue and be sued; and they may do all legal acts, which may be done by other artificial persons. In these communities (the congregations,) there are several distinct corporate bodies, each known in law, and having its peculiar rights and duties; viz. 1. The Church. 2. The Minister. 3. The Deacons, and, in Episcopal churches, Church-Wardens. And 4. The Proprietors of Pews." 1. The Church. By a law of the colony,* passed in 1641, it is declared, that "all the people of God within the jurisdiction, who are not in a church way, and be orthodox in judgement, and not scandalous in life, shall have liberty to gather themselves into a church estate, provided they do it in a Christian way." But it adds, "that the General Court will not approve of any such companies of men, as shall join in any pretended way of church fellowship, unless they shall acquaint three or more magistrates dwelling next, and the elders of the neighbor churches, where they intend to join, and have their approbation therein." In the same law it is enacted, "that every church hath free liberty of election and ordination of all her officers from time to time, provided they be able, pious, and orthodox. By the expression " the church," is here meant, according to a definition thereof contained in a law passed in 1660,† such as are in full communion only. The teaching officer is intended, "the minister to all the people where the church is planted." All inhabitants, who were not in full communion, were excluded from any right in the choice, and if any one such should presume to act therein, he was accounted a disturber of the peace, and might be punished by the court of the shire, by admonition, security for good behavior, fine, or imprisonment, according to the aggravation of the offence. The church is invested with liberty to admit, recommend, dismiss, expel, or dispose of its officers and members for due cause: to assemble when it pleases, and to exercise all the ordinances of God, according to the Scriptures: to deal with its members, who are in the hands of justice, but not to retard its course: and even with the civil magistrate, "in case of apparent and just offence given in his place," but not to degrade him from his office or dignity in the Commonwealth. The government of the colony consisted, in those early periods, of a spiritual and a temporal power. It was usual to consult with the elders of the churches in affairs of a civil nature, relating to the institution of laws, and the conduct of public affairs. And in 1642, it was ordered, that the public treasurer should defray the charges of the elders, when they were employed by the order of the General Court. It is to this circumstance, that we must attribute the incorporating of so many of the provisions of the Levitical law into the jurisprudence of the early period of the State. In the choice of the ministers, the church were originally the sole electors; but for more than a century past, it has been an established rule in the town of Boston, and in the other towns of the Commonwealth, that all who contribute to their support, shall have a voice in their election. By a law passed in the 4 and 5 of W. and M., it is declared, that whenever a church is destitute of a minister, such church is invested with power to choose one. If the major part of * Laws and Liberties of the Colony of Massachusetts, 43. Prov. Laws, p. 33. * such of the inhabitants as usually attend public worship, and are qualified by law to vote in town affairs, with whom likewise the members of the church may vote, shall concur with the act of the church, and the person elected shall accept thereof, he becomes the minister, to whose support all the inhabitants and rateable estates are obliged to contribute. In case of a disagreement between the church and the inhabitants, the former may call in the help of a council, consisting of the elders and messengers of three or five neighboring churches. This council is empowered to hear, examine, and consider the exceptions and allegations made against the election of the churches. If they should approve of the choice, and the person elected should declare his acceptance, he became the minister of the society to all intents, and entitled to be supported by the parish. But the act of 4 and 5 of W. and M., which applies to the towns and parishes throughout the Commonwealth, expressly provides, that it shall not "abridge the inhabitants of Boston of their accustomed way and practice as to the choice and maintenance of their ministers." Each society in this town should, when proceeding to choose a minister, ascertain and pursue the ancient practice, if it has followed any one mode in preference to another, from which it is presumed it would be illegal to depart, in respect of the rights, which, by the choice and acceptance, rest in the minister. By a law of the province, passed 28 Geo. II. and re-enacted‡ in part by this Commonwealth, Feb. 20, 1786, churches are constituted corporations to receive donations, to choose a committee to advise the deacons in the administration of their affairs, to call the church officers to an account, and, if need be, to commence and prosecute any suits touching the same. 2. The Minister. The ministers of the several protestant churches, of whatever denomination, are made capable of taking, in succession, any parsonage land or lands, granted to the minister and his successors, or to the use of the ministers, and of suing and defending all actions touching the same. But no alienation by them of such lands is valid any longer, than they shall continue to be ministers, unless it be with the consent of the town, district, or precinct,—or, if such ministers are of the Episcopal denomination, with the consent of the vestry. 3. Deacons and Church-Wardens. By the same act, the deacons of the Congregational churches, and the church-wardens of the Episcopal churches, are constituted corporations, including the minister, elders, or vestry, where they are named in the original grant, to take in succession all grants and donations, 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. But they cannot alienate any lands belonging to churches, without the consent of the church, or of the vestry, where the gift is to an Episcopal church. 4. Proprietors of Pews. Prior to the year 1754, the several congregations in Boston could not, by law, raise money for the support *Prov. Laws, p. 62. +7 W. iii. Ib. p. 62. Prov. Laws, 370. Mass. Laws, 282. of the ministry and public worship among them. It was therefore enacted by the same law, that the proprietors of the pews, or the persons to whom they are allotted in the houses of public worship, may, at a public meeting to be called for that purpose, cause the several pews in such houses to be valued according to the convenience of their situation; and new valuations to be made from time to time, as shall be found necessary, and impose a tax on each pew according to such valuation, provided it shall not exceed two shillings a week. The monies so raised must be applied to the support of the ministry, and other parochial charges. The proprietors are authorised to choose a clerk, treasurer, and likewise a collector of the assessments. Reference is made in this act to a committee of the proprietors, which may, therefore, be chosen at such meeting. These meetings are to be called by the proprietors' clerk, deacons, or church-wardens, and notice immediately after divine service given ten days, at least, before the meeting. In the notice, the purpose for which the meeting is to be convened, must be specified. If any owner of a pew should neglect for three months, after a demand made, to pay his assessment, his pew may be sold by the proprietors, who, after deducting from the proceeds the debt and costs, shall return the surplus to the owner, unless he shall tender the same to the proprietors, or to their committee, at the last valuation. In this case, if they refuse or neglect to accept the same, no sum shall be deducted out of the sale of the pew, but such only as became due prior to the tender. The proprietors of the pews are owners of the soil on which the meeting-house stands, and are the rightful persons to sue and defend in all cases respecting the same, and likewise in all cases respecting the house. Where the general laws of the Commonwealth, relating to parishes, apply to the societies in Boston, they may avail themselves of them. Because they are general, and contain no exclusive expressions. Where those laws do not apply, they are not obligatory. Parishes in the country towns are in general separated from each other by boundary lines. Where in a town any district has been set off into a new parish, the remaining part is denominated the "first parish," and by an act, passed in the 4 Geo. I.t all country parishes are invested with the rights and immunities of bodies corporate, whether they constitute the original stock, or are branches from it. This subject has been considered without reference to the law which was passed March 4, 1800, providing for the public worship of God, and repealing the laws heretofore made on the subject. The first section of that law confirms to churches, connected and associated in public worship with towns, parishes, precincts, districts, and other bodies politic, being religious societies, established according to law within this Commonwealth, all their accustomed privileges and liberties respecting divine worship, church order and discipline. It declares that contracts, made by these bodies with any public teacher, shall have the same force, and be as obligatory + Mass. Laws, 931, &c. *Prov. Laws, 371. † Ib. 198. on the contracting parties, as any other lawful contract, and be sustained in the courts of justice. It prescribes the mode, in which the monies, paid by the subject to the support of public worship, shall be applied to the use of the teacher of his own denomination. It provides, that nothing in the act shall take from any church or religious society in Boston, or any other town, the right and liberty to support the public worship of God, by a tax on pews, or other established mode. And lastly, it repeals all laws, providing for the settlement of ministers, and the support of public worship, made prior to the adoption of our present constitution, except as to the recovery of fines which had accrued, and the fulfilment of contracts made under them. This act was probably drawn up by some one, who was not well acquainted with the ancient laws relative to the subject, for such construction must be given to this repealing clause, as will very much limit its operation. 1. The rights and privileges which had been vested in the several religious communities, still remain in them, by virtue of the first section of the law, which amounts to an act of confirmation. Therefore, the rights of the churches, to lead in the election of ministers, and of other officers, and to maintain order and discipline, where they have been accustomed to exercise and enjoy those rights, still remain in them. 2. The established mode in which the societies in Boston have supported public worship, is likewise preserved, together with the rights of the several bodies politic, of which they are composed. If there is anything in those old laws, as undoubtedly there is, which is repugnant to the provisions of this act, it is repealed. For it is a rule in the construction of a clause in a statute, that it is to be taken with the other parts of the statute, and to be restrained or enlarged by them, so as to give, if possible, that force and efficacy to the whole, which was intended by the legislature. It will be seen at once that the views exhibited in the foregoing article (written evidently by a lawyer, and, if we are not misinformed, by one in an elevated station) are diametrically opposite to those for which Unitarians now so strenuously contend. They are substantially the views of the Orthodox at the present time. It is here maintained, that " to constitute a body corporate, it is not necessary that there should be a formal act of incorporation;" that in the congregations, "there are several distinct corporate bodies, each known in law, and having its peculiar rights and duties," the first of which is "the church;" that by the act of 1754, re-enacted in 1786, since the adoption of the constitution, the "churches are constituted corporations, to receive donations, to choose a committee to advise the deacons in the administration of their affairs, to call the church officers to an account, and, if need be, to commence and prosecute any suits touching the same;" and that by the constitution and the law of 1800," the rights of the churches to lead in the election of ministers, and of other officers, and to maintain order and discipline, where they have been accustomed to exercise and enjoy those rights, still remain in them." In view of these things, what will Unitarians now say? They cannot say that the Anthology was not a publication of their own, conducted by their own men, and devoted to their interests. They cannot say that the article above given is not there; for there it stands, and there it did stand, uncorrected and |