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A. COMPLETE ACCOUNT 
 
 OF THE 
 
 Proceeding in the Court of Common Pleas for the County of Philadelphia. 
 
 IN EQUITY. 
 
 BEFORE THE HONORABLE JAMES R. LUDLOW, 
 
 ONE OF THE JUDGES OF SAID COURT, 
 
 TO RESTRAIN THE YESTRY OF 
 
 ST. CLEMENT’S CHURCH 
 
 FROM DISMISSING THE RECTOR AND ASSISTANT MINISTER WITHOUT A TRIAL, 
 
 AND AGAINST THE PROTEST OF THE CONGREGATION OF SAID CHURCH, 
 
 TOGETHER WITH AN APPENDIX 
 
 CONTAINING STATEMENTS OF SIMILAR CASES IN NEW JERSEY, 
 MICHIGAN, MASSACHUSETTS AND MARYLAND. 
 
 “To whom I answered—It is not the manner of the Romans to deliver any man to die, 
 before that he which is accused, have t le accusers face to face, and have license to answer for 
 himself concerning the crime laid against him.’’—Acrs xxv v. 16. 
 
 PHILADELPHIA: 
 
 BOTJBQUI1T &c WELSH, 
 
 LAW BOOKSELLERS, PUBLISHERS AND IMPORTERS, 
 
 431 WALNUT STREET. 
 
 1871. 
 
Entered according to Act of Congress, in the year 1871 , by 
 ROURQUIN & WELSH, 
 
 In the Office of the Librarian of Congress, at Washington. 
 
ST. CLEMENT’S CHURCH CASE. 
 
 St. Clement’s Church, at the corner of Twentieth and 
 Cherry streets, in the City of Philadelphia, was organized 
 and incorporated in the year 1855. The Church building 
 was erected in the year 1857. Sometime about Easter, 1869, 
 the Rev. Hermon G. Batterson, I). D., was called to the 
 church as the Rector, and the Rev. AT. PI. JST. Stewart, LL. D., 
 was called as the Assistant Minister. During the winter of 
 1870-71, differences upon doctrinal matters arose between 
 the Vestry of the Church and the Clergy, which finally led 
 to an open rupture. Pamphlets were published on both 
 sides, and the newspapers were resorted to, as the breach 
 grew wider. At the annual election for Vestrymen on 
 Easter Monday (April 10th), 1871, two tickets w r ere pre¬ 
 sented to the electors — one in favor of the Vestry then in 
 office, and the other opposed thereto. The announced result 
 was in favor of the Vestry by a small majority ; hut the other 
 party were not satisfied with this result, and they therefore 
 commenced proceedings to contest the election. While these 
 proceedings were pending, the Vestry met on May 3d, 1871, 
 and passed resolutions dismissing Drs. Batterson and Stewart, 
 from their offices of Rector and Assistant Minister, and re¬ 
 ferred the same to the Right Rev. Wm. Bacon Stevens, 
 Bishop of the Diocese of Pennsylvania, for concurrence. The 
 same day (May 3d) the resolutions were presented to the 
 Bishop, and on the next day received his concurrence. 
 On the same day (May 4th) the Ministers and a number 
 of their congregation filed their bill of complaint in Court 
 of Common Pleas of Philadelphia County, for an injunc¬ 
 tion to restrain the Vestry from dismissing the Ministers 
 or interfering with them in the performance of the duties 
 and functions of their offices. The proceedings, in the case 
 were as follows. 
 
 2 
 
6 
 
 v 
 
 In the Court of Common Pleas for the County of 
 
 Philadelphia. 
 
 Of March Term , 1871. No. 37. 
 
 IX EQUITY. 
 
 Between IIermon G. Batterson. William II. X. Stewart, 
 Charles B. Shillitoe, Charles B. Sloan, Samuel 
 Ritchie, Richardson L. Wright, Jr., Lewis G. Bull, 
 Henry X. Barnes, J. C. Morrison, J. Douglas Brown, 
 John IIuggakd, Henry" L. Marple, William A. Rolin, 
 Stephen Fuguet, M. Morris Marple, Walter H. 
 Tilden, Thomas Sinexon, and C. Gedney King, in be¬ 
 half of themselves and such other members of “ The 
 Rector, Church Wardens and Vestrymen of St. Clement’s 
 Church, in the City of Philadelphia,” as may, upon appli¬ 
 cation to the Court, become parties plaintiff herein, 
 Plaintiffs, 
 
 and 
 
 Henry C. Thompson, John Lambert, Henry S. Lowber, 
 P. Pemberton Morris, Henry Henderson, Henry Kor- 
 ris, George X. Allen, James Dougherty", Charles S. 
 Pancoast, Francis R. Abbott, Edward Borheic and T. 
 Franklin Cooper, Defendants. 
 
 To the Honorable the Judges of the said Court. 
 
 Your orators complain and say: 
 
 I. That they are members of “ The Rector, Church 
 Wardens and Vestrymen of St. Clement’s Church, in the 
 City of Philadelphia,” a body politic in the City of Philadel¬ 
 phia, incorporated agreeably to the provisions of the Act of 
 the General Assembly of Pennsylvania, entitled “ An Act to 
 confer on certain associations of the citizens of this Common¬ 
 wealth, the power and immunities of corporations or bodies 
 
politic in law,” approved April 6th, 1791, and by the due 
 performance of all things thereby required. That they are a 
 part of the congregation of St. Clement’s Church aforesaid, 
 within the city and county of Philadelphia, and that they 
 have paid for and now hold pews or sittings in the said 
 church. 
 
 That the said corporation belongs to, and that it is under 
 the authority and regulations of the canons, doctrine, dis¬ 
 cipline and worship of the Protestant Episcopal Church in 
 the State of Pennsylvania, and of the Protestant Episcopal 
 Church in the United States of America. 
 
 II. That some of the defendants are members of the said 
 corporation, and they all claim to have been elected to he 
 the Vestry of the said Church on 10th April, 1871, and until 
 1st April, 1872. But in truth and in fact, the said defend¬ 
 ants now exercise the said office of Vestry contrary to the 
 provisions of the Church charter and of the laws of this Com¬ 
 monwealth. 
 
 That on the 18th April, 1871, a suggestion (a copy of 
 which is hereto annexed, as an exhibit) for the writ of quo 
 warranto was filed in the Supreme Court of Pennsylvania, 
 for the Eastern District, by the Commonwealth, at the re¬ 
 lation of Walter H. Tilden and others therein named, pray¬ 
 ing due process of the law against the defendants herein, 
 and requiring them to make answer to the said Common¬ 
 wealth by what warrant they claim to have, use and enjoy 
 the rights, privileges, liberties, offices and franchises of the 
 vestry of the said corporation. 
 
 That on the day last aforesaid, the writ of quo warranto 
 as prayed was allowed to he issued by Mr. Justice Sharswood. 
 and the same did then issue, and was made returnable to the 
 first Monday of May last past. 
 
 That the defendants named in the writ of quo xcarranto, 
 who are also the defendants herein, have appeared in the 
 Supreme Court by counsel, but they, the defendants, have 
 not answered, pleaded or demurred to the said suggestion 
 filed, and the proceedings therein are now pending and un¬ 
 determined in the said Court. 
 
8 
 
 III. That on or about the first Sunday in March, A. D. 
 1869, the Rev. II. G. Batterson became and was and from 
 thence continuously hitherto has been and still is duly and 
 regularly settled in St. Clement’s Church aforesaid, as the 
 Rector thereof; and that on or about Easter Sunday, A. D. 
 1869, the Rev. W. II. X. Stewart became and was and from 
 thence continuously hitherto lias been and still is duly and 
 regularly settled in the said Church as the Assistant Minister 
 thereof. 
 
 That both the Rev. H. G. Batterson and the Rev. W. H. 
 X. Stewart have had Episcopal ordination, and they ever 
 have been and now are in full standing with the Protestant 
 Episcopal Church in the State of Pennsylvania, and in the 
 United States, and recognized as such by the Bishop of the 
 Diocese of Pennsylvania. 
 
 And that the Rev. II. G. Batterson has received hitherto 
 a stated salary of $1,000 each year, payable quarterly; and 
 that the Rev. W. H. X. Stewart has received hitherto a 
 stated salary of $500 each year, payable quarterly. 
 
 IY. That on the third of May, 1871, all of the defendants, 
 except Charles S. Pancoast, George X. Allen and James 
 Dougherty, assembled in Vestry meeting, at which the Rev. 
 II. G. Batterson, in accordance with the provisions of the 
 By-Laws and the Charter of the corporation, presided. 
 
 That at such meeting there were presented for the action 
 of the Vestry, by Henry C. Thompson, the following resolu¬ 
 tions, to wit: 
 
 Resolved, That with the concurrence of the ecclesiastical 
 authority of the Diocese, the Rev. Hermon G. Batterson, 
 D. D., be and he is hereby dismissed from the Rectorship of 
 St. Clement’s Church, such dismissal to take effect upon the 
 concurrence of said authority therein. 
 
 Resolved , That with the concurrence of the ecclesiastical 
 
 authority of the Diocese, the Rev. AV. H. X. Stewart, LL. D., 
 
 be and he is hereby dismissed from the Assistant Ministership 
 
 of St. Clement’s Church, such dismissal to take effect upon 
 
 the concurrence of said authority therein. 
 
 */ 
 
 Resolved , That the foregoing resolutions be laid before the 
 
9 
 
 ecclesiastical authority of the Diocese, and that Messrs. Lam¬ 
 bert and Morris he appointed a Committee for that purpose. 
 
 Resolved , That the Secretary he directed to notify the Rev. 
 Drs. Batterson and Stewart of the passage of the foregoing 
 resolutions. 
 
 That the Rev. Id. G. Batterson declined to entertain any 
 action upon the said resolutions, and he also declined to en¬ 
 tertain an appeal from his said decision; Avhereupon Henry 
 S. Lowber, acting as the Secretary of the meeting, at the re¬ 
 quest of P. Pemberton Morris, presented the resolutions to the 
 meeting for its action, and they were adopted by all of those 
 present except the Rev. II. G. Batterson, and copies thereof 
 were thereupon sent to the Rev. Id. G. Batterson and the 
 Rev. W. dl. 1ST. Stewart. The meeting then adjourned to 
 meet at 12 m., on Saturday, the 6th of May, 1871. 
 
 And that there has been no presentment whatever against 
 the Rev. Id. G. Batterson and the Rev. W. Id. 1ST. Stewart, 
 nor has any charge whatever been made against them upon 
 which a hearing has been allowed them. 
 
 V. That the plaintiffs charge that the defendants are not 
 now, nor w T ere they at the time of their action upon the said 
 resolutions the legal representatives of the said Church. 
 
 That the action upon the said resolutions were irregular 
 and unlawful; and that the Vestry of the corporation afore¬ 
 said is wholly without jurisdiction and power to dissolve the 
 connection between the congregation and the Rector and 
 Assistant Minister. 
 
 The plaintiffs believe and so charge, as well from the dis¬ 
 position and temper shown in the said action of the defend¬ 
 ants, as from their threats, that they intend (pending their 
 efforts to obtain for their action the concurrence mentioned 
 in the resolutions) to prevent by acts of force the exercise by 
 the Rector and Assistant Minister of the functions of their 
 office within St. Clement’s Church aforesaid. 
 
 VI. The plaintiffs further say : 
 
 That the attempted dissolution of the connection between 
 the congregation and the Rector and Assistant Minister is di- 
 
10 
 
 rectly in opposition to tlie wishes of the plaintiffs and of the 
 congregation ; and that if the same he carried out, it will, to 
 the rights of the plaintiffs and to those of the congregation 
 in the church property, and to their rights to their pews and 
 sittings therein, work an irremediable injury; and that it 
 will imperil anti almost destroy the leasing value of the said 
 pews and sittings. 
 
 Hence the plaintiffs need equitable relief. 
 
 1st. That it may be adjudged and decreed that the plain¬ 
 tiffs are members of the corporation and entitled to all the 
 rights of membership therein, and to the pews and sittings 
 for which they have paid. 
 
 That the Rev. II. G. Batterson and the Rev. "W\ II. R. 
 Stewart are ministers who have been duly and regularly set¬ 
 tled, and are now so settled in St. Clement's Church in Phila¬ 
 delphia. And that while they are so settled they are entitled 
 to exercise their office therein and to receive the stated sala¬ 
 ries aforesaid. 
 
 2d. That the defendants he restrained by injunction special 
 until hearing, and perpetual thereafter, from dissolving the 
 connection between the Rev. II. G. Batterson and the Rev. 
 W. H. R. Stewart and the congregation of St. Clement’s 
 Church of Philadelphia; and that they be so restrained from 
 intermeddling or taking any action therein as a Vestry or as 
 Vestrymen. 
 
 3d. That the defendants, their agents and servants, be re¬ 
 strained as aforesaid, from interfering in any way or manner 
 with the exercise by the Rev. H. G. Batterson of his office 
 of Rector, and with the exercise by the Rev. W. H. R. Stewart 
 of his office of Assistant Minister in St. Clement’s Church of 
 Philadelphia, before a regular and canonical dissolution of 
 the connection now existing between them and the congre- 
 gation of the said Church, shall have taken place in accord¬ 
 ance with the constitution and canons of the Protestant Epis¬ 
 copal Church in Pennsylvania, and in the United States. 
 
11 
 
 4th. Such other and further relief as the Court may deem 
 proper. 
 
 ¥M. B. ROBIN'S, 
 HUM HANSON, 
 
 ¥M. S. PRICE, 
 
 Solicitors for Plaintiffs. 
 
 City and County of Philadelphia , ss.: 
 
 Walter H. Tilden aud Richardson L. Wright, Jr., two 
 of the plaintiffs above named, having been duly sworn accord¬ 
 ing to law, say that the statements in the foregoing hill con¬ 
 tained, so far as they are within their knowledge, are true, 
 and that as to the other statements they verily believe them 
 to he true. 
 
 WALTER H. TILDEN, 
 RICHARDSON L. WRIGHT, Jr. 
 
 Sworn and subscribed before me, 
 
 this 4th day of May, 1871. 
 
 J. P. Delaney, 
 
 Alderman. 
 
 injunction J Iffidnvit. 
 
 IIeumon G. Batterson, being duly sworn according to law, 
 says: 
 
 I. I am the Rector of “ The Rector, Church Wardens and 
 Vestrymen of St. Clement’s Church in the City of Phila¬ 
 delphia,” a corporation which has been duly incorporated in 
 pursuance of the Act of Assembly, approved April 6th, 1791, 
 and of the other parties plaintiff to the above bill, the Rev. 
 William IL. N. Stewart, LL.D., is the Assistant Minister, and 
 all the others are members of the congregation of said St. 
 Clement’s Church, and have paid for and now hold pews or 
 sittings in said Church; and the said Church is a member of 
 and subject to the canons, doctrine, discipline and worship 
 of the Protestant Episcopal Church in the State of Penn¬ 
 sylvania, and in the United States of America. 
 
 II. All of the defendants in this suit (excepting Henry S. 
 LoAvher, Henry Henderson and Charles S. Pancoast) are 
 
12 
 
 ' 
 
 members of said corporation, and all of them claim to be the 
 Vestrymen thereof, by virtue of an election for one year, from 
 April 10th, 1871; but in truth and in fact the defendants now 
 hold their said office contrary to the provisions of the charter 
 of said Church and the laws of Pennsylvania, as I am advised 
 and believe, and on the eighteenth of April, 1871, an infor¬ 
 mation for a writ of quo warranto was filed in the Supreme 
 Court of this Commonwealth at the relation of Walter II. 
 Tilden and others, for the purpose of contesting the election, 
 by virtue of which the defendants assume to act as the 
 Vestrymen of said Church, which said writ of quo warranto 
 was duly allowed and issued, and made returnable on the 
 first Monday of May last past; and the defendants have 
 appeared in said Supreme Court by counsel, but have not 
 yet answered, pleaded or demurred to the said information, 
 and the said proceedings are still pending in said Court. 
 
 III. I took charge of said Church as the Rector thereof on 
 or about the first Sunday in March, 1869, and Dr. Stewart 
 took charge thereof as the Assistant Minister on or about 
 Easter Sunday, 1869, and both of us since then have been 
 and now are duly settled in said Church as the Rector and 
 Assistant Minister thereof. Both Dr. Stewart and I have 
 had Episcopal ordination, and ever have been and now are 
 in full standing in the Protestant Episcopal Church in the 
 State of Pennsylvania, and the United States of America, 
 and are recognized by the Bishop of the Diocese of Penn¬ 
 sylvania. I receive for my services a salary of $1,000 per 
 annum, and Dr. Stewart receives a salary of $500 per annum. 
 
 IV. On May 3d, 1871, all the defendants (except Messrs. 
 Pancoast, Allen and Dougherty) assembled in a Vestry 
 meeting, at which I presided. At that meeting, Henry C. 
 Thompson introduced resolutions dismissing Dr. Stewart and 
 myself from our offices in said Church, and referring the 
 same to the Bishop of the Diocese for his concurrence. I 
 declined to put the question to the meeting, because as I said 
 to them, the right to pass such resolutions was a doubtful 
 one, even when attempted to be exercised by a legally elected 
 ^ estry, and that a Vestry whose title was disputed and in 
 litigation, had no right to pass such resolutions. I also de- 
 
13 
 
 clinecl to entertain an appeal, when Henry S. Lowber, acting 
 as Secretary of the meeting, at the request of P. Pemberton 
 Morris, took the vote of the meeting upon said resolutions, 
 and declared them adopted, and a copy thereof was given to 
 me. The meeting then adjourned until Saturday, May 6th, 
 1871, when they will take final action upon said resolutions. 
 
 V. There has not been either a presentment or charge 
 against Dr. Stewart or myself on which a hearing has been 
 had. I believe from the temper and disposition shown by 
 the defendants, and from their threats, as reported to me, 
 that they desire, and will not cease to attempt to sever the 
 relation between the congregation of St. Clement’s Church 
 and Dr. Stewart and myself, against the wishes and desires 
 of a majority of the said congregation, and the worshippers 
 of the said Church; and that the defendants will, if not re¬ 
 strained, strive to prevent Dr. Stewart and myself by acts of 
 force, from exercising the functions of our said offices. 
 
 On May 4th, 1871, the Court (Honorable James P. Ludlow 
 presiding) granted a preliminary injunction, and issued a 
 writ in the following form : 
 
 [ Se cou f rt the ] City and County of Philadelphia, ss . : 
 
 THE COMMONWEALTH OF PENNSYLVANIA 
 
 To Henry C. Thompson, John Lambert, Henry S. Lowber, 
 P. Pemberton Morris, Henry Henderson, Henry Norris, 
 George N. Allen, James Dougherty. Charles S. Pan¬ 
 coast, Francis R. Abbott, Edward Borhek and T. Frank¬ 
 lin Cooper, Greeting: 
 
 Whereas, Hermon G. Batterson, William H. N. Stewart, 
 Charles B. Shillitoe, Charles B. Sloan, Samuel Ritchie, Rich¬ 
 ardson L. Wright, Jr., Lewis G. Bull, Henry N. Barnes, J. 
 C. Morrison, J. Douglass Brown, John Huggard, Henry L. 
 Marple, William A. Rolin, Stephen Fuguet, M. Morris Mar- 
 pie, Walter H. Tilden, Thomas Sinexon, and C. Gedney 
 
14 
 
 King, in belialf of themselves and such other members of 
 “ The Rector, Church Wardens and Vestrymen of St. Clern- 
 ' ent’s Church, in the City of Philadelphia,” as may, upon ap¬ 
 plication to the Court become parties plaintiff therein, lately, 
 that is to say, in the Term of March, 1871, exhibited their 
 hill of complaint before the Honorable the Judges of our 
 Court of Common Pleas for the City and County aforesaid, 
 asking relief touching the matters therein particularly com¬ 
 plained of and at length set forth: 
 
 Therefore, by the consideration of the Court aforesaid, 
 We command you, the said Henry C. Thompson, and you 
 the said John Lambert, and you the said Henry S. Lowber, 
 and you the said P. Pemberton Morris, and you the said 
 Henry Henderson, and you the said Henry Norris, and you 
 the said George N. Allen, and you the said James Dough¬ 
 erty, and you the said Charles S. Pancoast, and you the said 
 Francis R. Abbott, and you the said Edward Borhek, and 
 you the said T. Franklin Cooper, not to dissolve the connec¬ 
 tion between the Reverend II. G. Batterson, and the Rev¬ 
 erend W. II. N. Stewart, and the Congregation of St. Clem¬ 
 ent’s Church of Philadelphia, and not to intermeddle or take 
 any action therein as a Vestry or as Vestrymen, until the 
 further order of said Court in the premises. 
 
 And we command you the said Henry C. Thompson, and 
 you the said John Lambert, and you the said Henry S. 
 Lowber, and you the said P. Pemberton Morris, and you the 
 said Henry Norris, and you the said Henry Henderson, and 
 you the said George N. Allen, and you the said James 
 Dougherty, and you the said Charles S. Pancoast, and you 
 the said Francis R. Abbott, and you the said Edward Bor¬ 
 hek, and you the said T. Franklin Cooper, not to interfere 
 in any way or manner with tlie exercise by the Reverend II. 
 G. Batterson, of his office of Rector, and with the exercise 
 by the Reverend W. II. N. Stewart, of his office of Assistant 
 Minister, in St. Clement’s Church in Philadelphia, before a 
 regular and canonical dissolution of the connection now ex¬ 
 istin'’: bet ween them and the congregation of the said Church 
 shall have taken place, in accordance with the constitution 
 and canons of the Protestant Episcopal Church in Pcnnsyl- 
 
15 
 
 vania, and in the United States, until the further order of 
 said Court in said premises. 
 
 Witness the Honorable Joseph Allison, LL. D., President 
 of our said Court at Philadelphia, this fourth day of May, 
 
 A. D. 1871. 
 
 P. DOIN'AG-AH, 
 
 Prothonotary. 
 
 The defendants are hereby notified that a special injunc¬ 
 tion for five days, has been granted this 4th day of May, 
 1871, and that on May 6th, 1871, at eleven o’clock A. m., a 
 motion will be made to the Court to continue said injunction. 
 
 WILLIAM B. ROBIN’S, 
 
 IIU HU HAHSOH, 
 
 WILLIAM S. PRICE, 
 
 Solicitors for Plaintiffs. 
 
 This injunction was continued from time to time, until 
 May 20th, 1871, when the parties appeared by their solicit¬ 
 ors, to wit: 
 
 Michael Arnold, Jr., William B. Robins, E. Hunn Han¬ 
 son, and William S. Price, Esquires, for the plaintiffs ; and 
 
 George M. Conarroe, George W. Biddle, and Edward 
 Olmsted, Esquires, for the defendants. 
 
 The following affidavits and exhibits were then read on 
 the part of the plaintiffs: 
 
 Affidavit of Sermon G. Batterson. 
 
 I. The paper marked Exhibit A, is a list of the pew- 
 holders in St. Clement’s Church, Philadelphia, as made up 
 from the list last furnished tome by John Lambert, Account¬ 
 ing Warden of said Church, and one of the defendants in this 
 suit, and other credible sources of information. It contains 
 (including Dr. Stewart and myself) 88 names. 
 
 II. The paper marked Exhibit B, is a list of the communi¬ 
 cants of said Church. It is taken from the records of the 
 Church, and contains 301 names. 
 
 III. The paper marked Exhibit C, is a copy of a paper in 
 
16 
 
 my possession signed by the persons whose names appear 
 thereon, and used by their authority, and all of whom are 
 pewliolders in said Church. It contains 58 names. 
 
 IV. The paper marked Exhibit I), is a copy of papers in 
 my possession, signed by the persons whose names are there¬ 
 upon, and used by their authority, and all of whom are 
 regular attendants at St. Clement’s Church, and 207 of whom 
 are communicants there. 
 
 V. The paper marked Exhibit E, is a copy of a paper in 
 my possession, signed by 18 of the votes at the election for 
 Vestrymen of St. Clement’s Church on Easter Monday, 1871. 
 At said election 36 votes were received and counted, the 
 announced result being 19 for the defendants and 17 for their 
 opponents. 
 
 VI. The paper marked Exhibit F, is a correct statement 
 from the reports of the condition of St. Clement’s Church 
 to the Diocesan Convention for 1869, 1870, and 1871. 
 
 VII. The pew owners of St. Clement’s Church, are the estate 
 of William S. Wilson, deceased, which owns about $40,000 
 of pews; Henry Henderson, one of the defendants, who 
 took several pews in payment for a debt, and who, although 
 an acting Vestryman of said Church, is neither a voter, 
 attendant, nor communicant thereat; James A. McCrea, who 
 sub-rents his pew, and is a member of and an attendant at 
 St. Mark’s Church, and not St. Clement’s; John Lambert, 
 Charles S. Pancoast, and Henry Horns, of the defendants, of 
 whom the said Charles S. Pancoast is a member and Vestry¬ 
 man of and attendant at St. Michael’s Church, Germantown, 
 and not at St. Clement’s ; George W. Hunter; and Simon 
 Delbert, who favors the plaintiffs in this suit, and has signed 
 the pew holders' paper (Exhibit C) in favor of Dr. Stewart 
 and myself. 
 
 VIII. The printed book marked Exhibit G, is a copy of 
 the Charter and By-Laws of St. Clement’s Church. 
 
 IX. The Vestry receive the funds paid into said Church 
 for the purposes of paying the expenses thereof, and they 
 have, since Easter Monday, 1871, received a considerable 
 amount of money from pew rents and collections at the ser¬ 
 vices of the Church. 
 
17 
 
 X. When I was called to the Rectorship of St. Clement’s 
 Church, there were no terms of tenure stipulated between me 
 and the congregation or Vestry. There was no contract of 
 hiring for a year or for any other period of time, but I received 
 and accepted the call according to the usage of the Protestant 
 Episcopal Church, which I have always understood to be 
 until the connection was dissolved by mutual consent, or 
 until I should be removed for cause shown, and after trial 
 and conviction. 
 
 Exhibit A. 
 
 A list of the pew holders in St. Clement’s Church. (Here 
 follows a list of 88 names, including'the ministers.) 
 
 Exhibit B. 
 
 A list of communicants of St. Clement’s Church. (Here 
 follows a list of 801 names.) 
 
 Exhibit C. 
 
 Whereas , It has been intimated to us that certain promi¬ 
 nent members of the Vestry of St. Clement’s Church, have 
 signified their desire to bring about a severance of the re¬ 
 lation with the present Rector and Assistant Minister : 
 Therefore , we, pew holders in St. Clement’s Church, do hereby 
 express our entire satisfaction with the ministrations and 
 teachings of the Rector and Assistant Minister, aud our hope 
 that the relation may not be severed. (Here follows a list 
 of 58 names.) 
 
 Exhibit D. 
 
 Whereas , It has beeu intimated to us that certain promi¬ 
 nent members of the Vestry of St. Clement’s Church, have 
 signified their desire to bring about a severance of the re¬ 
 lation with the present Rector and Assistant Minister: 
 
18 
 
 Therefore , wo, members of St. Clement's Parish, do hereby 
 express our entire satisfaction with the ministrations and 
 teachings of the Rector and Assistant Minister, and our hope 
 that the relation may not be severed. (Here follows a list of 
 219 names, of whom 207 are communicants.) 
 
 Exhibit E. 
 For Vestrymen. 
 
 Walter II. Tilden, 
 J. Douglass Brown, 
 John IIuggard, 
 Henry 1ST. Barnes, 
 Samuel Ritchie, 
 Michael Arnold, Jr. 
 
 Charles B. Stewart, 
 Charles B. Sloan, 
 William A. Rolin, 
 Elias L. Boudinot, 
 Francis D. Wetiierill, 
 William S. Johnston. 
 
 At the annual election, by the legal voters of St. Clement’s 
 Church, in the City of Philadelphia, held according to the 
 charter, on Easter Monday (April lOthb 1871, we, whose 
 
 names are hereunto annexed, 
 the above ticket: 
 
 Walter H. Tilden, 
 
 J. Douglass Brown, 
 
 Henry H. Barnes, 
 
 C. D. Kates, 
 
 E. D. Wetherill, 
 
 M. M. Marple, 
 
 John L. Kates, 
 
 Lewis G. Bull, 
 
 W. A. Rolin, (My oivn 
 
 hereby declare that we voted 
 
 Charles B. Stewart, 
 
 Delia K. Cozens, 
 
 Mrs. J. B. Parker, 
 
 John C. Morrison, 
 
 Maria R. Lamb, 
 
 Emmeline Griffith, 
 
 John Penn Brock, 
 
 B. L. LAXGSTROTn, 
 e excepted.) 
 
 To whom it may Concern. 
 
 I hereby declare that at the election for Vestrymen, held at 
 St. Clement’s Church, on Easter Monday (April 10th), 1871, 
 I voted, or supposed that I voted the ticket favorable to the 
 Rector. 
 
 S. FUGUET. 
 
 Easter Tuesday , April 11, 1871. 
 
19 
 
 Exhibit F. 
 
 Report of St. Clement’s Church, Philadelphia, to the con¬ 
 
 vention of the Diocese, May, 1869. 
 
 Communicants.120 
 
 Pew rents...$2,6-83 21 
 
 Total revenues from all sources.$6,604 23 
 
 Report of same, May, 1870. 
 
 Communicants.274 
 
 Pew rents... . .$4,882 36 
 
 Total revenues from all sources.$20,678 00 
 
 (This year there were several extraordinary expenses in¬ 
 curred, which demanded and received liberal contributions 
 from the members of the Church, and some friends not in 
 the Church.) 
 
 Report of same, May, 1871. 
 
 Communicants. 301 
 
 Pew rent.-.$4,839 48 
 
 Total revenues from all sources, about.$13,244 00 
 
 Exhibit G. 
 
 Charter of St. Clement's Church, Philadelphia. 
 
 Whereas , The following named persons, citizens of this 
 Commonwealth, viz., John R. Wilmer, Charles S. Pancoast, 
 John Lambert, George H. Kirkham, Colin Campbell Cooper, 
 J. Dickinson Logan, John Cooke, and George W. Biddle, 
 have, together with other citizens associated for the purpose 
 of worshipping Almighty God according to the faith and 
 discipline of the Protestant Episcopal Church op the 
 United States of America, and have for that purpose 
 formed a congregation in the City of Philadelphia, and are 
 now desirous to he incorporated agreeably to the provisions 
 of the Act of General Assembly of Pennsylvania, entitled 
 “ An Act to confer on certain associations of the citizens of 
 
20 
 
 this Commonwealth the powers and immunities of corpora¬ 
 tions or bodies politic in law; ” they, therefore, declare the 
 following to be the objects, articles and conditions of their 
 said association, agreeably to which they desire to be in¬ 
 corporated, viz. 
 
 ARTICLE I. 
 
 The name of the corporation shall he “The Rector, 
 Church ‘Wardens and Vestrymen of St. Clement’s Church, 
 in the City of Philadelphia.” 
 
 article II. 
 
 This Church acknowledges itself to he a member of, and 
 to belong to the Protestant Episcopal Church in the State 
 of Pennsylvania, and the Protestant Episcopal Chnrch in the 
 United States of America. As such, it accedes to, recog¬ 
 nizes and adopts the constitution, canons, doctrine, dis¬ 
 cipline and worship of the Protestant Episcopal Church in 
 the State of Pennsylvania, and of the Protestant Episcopal 
 Church in the United States of America, and acknowledges 
 their authority accordingly. 
 
 Any member of this Church or Corporation who shall dis¬ 
 claim, or refuse conformity to the said authority, shall cease 
 to be a member of this Corporation, and shall not be elected 
 or vote in the election of Vestrymen, or exercise any office or 
 functions in, concerning, or connected with the said Church 
 ' or Corporation. 
 
 ARTICLE III. 
 
 The rents and revenues of this Corporation shall be from 
 time to time applied for the maintenance and support of the 
 Rector, Ministers and Officers of the said Church, and in the 
 erection and necessary repairs of the Church and church¬ 
 yard, and parsonage house, and other houses, which now do, 
 or hereafter shall belong to the said Corporation, and to no 
 other use and purpose whatsoever. 
 
21 
 
 ARTICLE IY. 
 
 The said Corporation shall not by deed, tine or recovery, 
 or by any other means, without the assent of the Convention 
 of the Protestant Episcopal Church of the State of Penn¬ 
 sylvania, or of the Standing Committee of the Diocese, pre¬ 
 viously had and obtained, grant, sell, alien, or otherwise 
 dispose of any lands, messuages, tenements, or hereditaments 
 in them vested, or charge or encumber the same to any 
 person or persons whomsoever ; and they shali have the right 
 to take and hold real and personal property: Provided , The 
 clear and yearly value or income thereof does not at any 
 time exceed the sum of two thousand dollars. 
 
 ARTICLE V. 
 
 The Rector of this Church shall be elected by the Church 
 Wardens and Vestrymen, in such manner as the statutes and 
 By-laws shall ordain. 
 
 The Vestry of the said Church shall consist of twelve 
 persons, members of the said Church, who shall continue in 
 office for one year, and until others be chosen ; and the 
 election of such Vestry shall be made every year, on Easter 
 Monday, by a majority of such members of the said Church 
 as shall appear by the Vestry books to have paid two succes¬ 
 sive years, immediately preceding the time of such election, 
 for a pew or sitting in the said Church : Provided,, That until 
 the next Easter Monday, after the expiration of five years 
 from the date of the Charter, members of the said Church, 
 who shall in any way have contributed to the erection of the 
 Church, or to the support of the Rector or Minister thereof, 
 shall be entitled to vote at the election of Vestrymen. And, 
 provided, That in case of the failure to elect Vestrymen on 
 that day, the Corporation shall not on that account be 
 dissolved, but the election shall be holden on some other day, 
 in such manner as the By-laws may prescribe. 
 
 3 
 
22 
 
 ARTICLE VI. 
 
 Xo person shall be Rector or Assistant Minister of this 
 Church unless he shall have had Episcopal ordination, and 
 unless he he in full standing with the Protestant Episcopal 
 Church of the State of Pennsylvania, and of the United 
 States, and recognized as such by the Bishop of this Diocese, 
 or in case of vacancy in the Episcopate, by the Standing 
 Committee of the Diocese. 
 
 ARTICLE VII. 
 
 The said Vestry shall have full power to choose their own 
 officers, and they shall annually, at their first meeting after 
 their election, elect one of their own number, to be one 
 Church Warden, and the Rector for the time being, shall 
 choose another of the said Vestrymen to be the other 
 Church Warden of the said Church. In case of a vacancy 
 in the office of Rector at the time of the election, the other 
 Church Warden shall also be elected by the Vestry, to re¬ 
 main until the election of a Rector or a new election of the 
 Vestry. And during such vacancy, the Church Wardens 
 for the time being, and Vestrymen, shall have the same 
 powers and authorities relating to the disposition of the 
 rents and revenues of the said Corporation, as are hereby 
 vested in the Rector, Church Wardens, and Vestrymen: 
 Provided always , That it shall be the duty of the said 
 Church Wardens and Vestrymen to elect another Rector to 
 supply the vacancy as soou as conveniently may be. And 
 said Vestry shall have the power to make By-laws not 
 repugnant to the Constitution and laws of the United States 
 of America, this State, or this Charter. 
 
 ARTICLE VIII. 
 
 The following named persons to be the Church Wardens 
 and Vestrymen, to continue in office until the election on 
 Easter Monday next, and until others be chosen, viz., John 
 
23 
 
 E. Wilmer, Charles S. Pancoast, John Lambert, George H. 
 Kirkham, Colin Campbell Cooper, J. Dickinson Logan, John 
 Cooke, and George W. Diddle, and in case of vacancy, by 
 resignation or otherwise, such vacancy to be filled by per¬ 
 sons chosen by the remaining Vestrymen, and to continue 
 in office until another election shall take place. 
 
 John E. Wilmer, 
 John Lambert, 
 George II. Kirkham, 
 C. Campbell Cooper, 
 
 J. Dickinson Logan, 
 John Cooke, 
 
 George W. Biddle, 
 Charles S. Pancoast. 
 
 I certify that I have perused and examined the foregoing 
 instrument of association of the Eector, Church "Wardens, 
 and Vestrymen of St. Clement’s Church, in the City of 
 Philadelphia, and am of opinion that the objects, articles, 
 and conditions therein set forth and contained are lawful. 
 
 THOMAS E. FEAHKLIF, 
 Attorney General. 
 
 Lancaster May 30,1855. 
 
 We certify that we have perused and examined the 
 foregoing instrument of association of the Eector, Church 
 Wardens, and Vestrymen of St. Clement’s Church, in the 
 City of Philadelphia, and are of opinion that the objects, 
 articles, and conditions therein set forth and contained are 
 lawful. 
 
 ELLIS LEWIS, 
 
 W. IT. LOWEIE, 
 
 GEO. W. WOODWAED, 
 JOTIU C. KXOX, 
 
 J. S. BLACK 
 
 Bedford, August 15, 1855. 
 
 I, William II. Miller, Prothonotary of the Supreme 
 Court of Pennsylvania for the Middle District, do certify 
 that the foregoing instrument of writing was duly presented 
 to the Judges of the Supreme Court of Pennsylvania, and 
 
24 
 
 was by them duly allowed, as appears by their above certi¬ 
 ficate. 
 
 In testimony whereof I have hereunto set my hand and 
 affixed the seal of the said Supreme Court, at Harrisburg, 
 this thirteenth day of September, A. 1). 1855. 
 
 WILLIAM H. MILLER, 
 [seal.] Froth. Sup. Ct. 
 
 The lawfulness of the objects, articles, and conditions of 
 the within Charter of the Rector, Church Wardens, and 
 Vestrymen of St. Clement’s Church, in the City of Phila¬ 
 delphia, having been certified to by the Attorney General, 
 and Supreme Court of the State of Pennsylvania, I hereby 
 require the Secretary of State of said Commonwealth to en¬ 
 roll the said Charter at the expense of the applicants. 
 
 JAMES POLLOCK 
 
 Sept. 13, A. D. 1855. 
 
 Executive Chamber, Harrisburg. 
 
 Secretary’s Office. 
 
 Pennsylvania , ss. : 
 
 Enrolled in Charter Book, Volume Ho. 7, pages 
 595, 596, 597 and 598. 
 
 In testimony whereof I have hereunto set my hand and 
 caused the seal of the Secretary’s Office to be affixed, at 
 Harrisburg, this thirteenth day of September, in the year 
 of our Lord one thousand eight hundred and fifty-five. 
 
 JOIIX M. SULLIVAX, 
 
 Pep. Sect'y of the Comm tlx. 
 
25 
 
 By-laws of St. Clemeiit’s Church, Philadelphia, 
 
 ARTICLE I. 
 
 Of Vestrymen and the Election of Vestrymen. 
 
 Sect. 1. No person shall he eligible to the office of Vestry¬ 
 man, unless he shall have been a worshipper and the renter 
 of a seat or sittings for two years next preceding his election, 
 and not in arrears; or the holder of permanent sittings in 
 the Church at the time of his election: Provided , That until 
 Easter Monday, 1861, all persons who have contributed to 
 the erection of the Church shall he eligible for election as 
 Vestrymen. 
 
 Sect. 2. The time and place for holding the election, as 
 provided for in the fifth article of the Charter, shall be an¬ 
 nounced to the congregation on the Sunday next preceding 
 the day of the election. 
 
 Sect. 3. The Vestry shall choose two pew-holders, one of 
 whom shall be a Vestryman, to be judges of the election, 
 and shall cause them to he notified in due time of their ap¬ 
 pointment. In case the judges so appointed should neglect 
 to act, then the Wardens shall make a new appointment, or 
 if not convenient at the time to do so, act themselves as 
 judges of the election. 
 
 Sect. 4. It shall he the duty of the judges to open the 
 polls at twelve o’clock M. at the place specified for the elec¬ 
 tion of Vestrymen, in conformity with the Charter and By¬ 
 laws of the Corporation, and to close the same at two o’clock 
 p. M., unless the said judges shall deem it proper to continue 
 them open longer. At the close of the polls the judges shall 
 count the votes, and thereupon notify, or cause to be notified, 
 each of the candidates elected, to attend a meeting of the 
 
26 
 
 Vestry to be held on the next day following the election, at 
 an hour named in the notice, for the purpose of organizing; 
 to which meeting the judges shall make their official return, 
 in writing. 
 
 Sect. 5. The Vestry shall cause the return of the judges 
 of the election to be entered at large upon their minutes; 
 and in case of vacancies by resignation or otherwise, such 
 vacancies shall he filled by persons chosen by the remaining 
 Vestrymen, and who shall continue in office until the next 
 annual election ; the result of the election shall be publicly 
 announced in the Church on the Sunday next following. 
 
 Sect. 6. In case of a failure to elect Vestrymen on Easter 
 Monday, then the election may he held at any other time, 
 which the Vestry in office shall appoint for that purpose. 
 
 ARTICLE II. 
 
 Of the Meetings of Vestry , Election , Order of Business , fc. 
 
 Sect. 1. The stated meetings of the Vestry shall he held 
 on Easter Tuesday, and thereafter on the first Tuesday in the 
 months of June, October and January, throughout the year, 
 at such time and place as the Vestry may appoint. 
 
 Sect. 2. Five members shall constitute a quorum for the 
 transaction of business: Provided , That no sum of monev 
 exceeding one hundred dollars shall he disposed of, nor any 
 salary increased, unless the notices of such meeting shall 
 contain the words, “ money to he disposed of,” or unless 
 eight members of the Vestry he present, the consent of a ma¬ 
 jority of whom shall he necessary. 
 
 Sect. 3. At the first stated meeting after their election, 
 the A estry shall, pursuant to the seventh article of the 
 Charter, elect one of their number who shall he “ The Ac¬ 
 counting Church Warden," the Rector shall appoint another 
 member of the Vestry who shall he “ The Rector’s Church 
 
27 
 
 Warden.” The Vestry shall then elect a Secretary, from 
 their own bocty; and shall also elect such other officers as 
 may he necessary. The Vestry shall also elect Lay Deputies 
 to represent the Parish in the Diocesan Convention, as re¬ 
 quired by the Canons of the Church. In case of failure to 
 elect officers and Lay Deputies, or either of them as afore¬ 
 said, the election may be held at any subsequent meeting of 
 the Vestry. All elections shall he by ballot, unless the same 
 shall be dispensed with by unanimous consent. 
 
 Sect. 4. The Rector, either Church Warden, or any two 
 of the Vestry, may require the Secretary to call special meet¬ 
 ings, and written notice of any such meetings shall be left 
 at the house or place of business of each Vestryman at least 
 twenty-four hours before the proposed time of meeting, sig¬ 
 nifying the time and place and object thereof. 
 
 Sect. 5. The Rector, or in his absence the Rector’s Church- 
 Warden, shall preside at the meetings of the Vestry ; hut if 
 both shall be absent, then any other member present may be 
 appointed Chairman for the time. 
 
 article in. 
 
 Of the Election of a Rector or Assistant-Minister. 
 
 Sect. 1. For the election of a Rector, or Assistant Minis¬ 
 ter, at least eight votes of the Vestry shall he necessary: 
 Provided , That the consent of the Rector shall always he 
 necessary to render the election of an Assistant Minister 
 valid. 
 
 Sect. 2. In either case, the person to be elected must have 
 been openly nominated, at a previous meeting of the Vestry, 
 the notices of which shall have been issued at least one week 
 previous to the holding thereof, and shall have expressed 
 therein, that such nomination would then be made and re¬ 
 ceived ; and the notices for the meeting, at which such elec¬ 
 tion is intended, shall express such intention ; and no election 
 
28 
 
 as aforesaid shall be held, until at least two weeks shall have 
 elapsed from and after the nomination of the candidate or 
 candidates. 
 
 Sect. 3. The election of a Rector or Assistant Minister 
 shall he by ballot. 
 
 Sect. 4. In the case of the election of a Rector or an As¬ 
 sistant Minister, publication thereof shall he made on the 
 next ensuing Sunday, by the officiating minister, morning 
 and evenino’. 
 
 O 
 
 ARTICLE IV. 
 
 Of the Church Wardens , Secretary and Sexton. 
 
 Sect. 1. The Church Wardens shall have a general super¬ 
 intendence over the property of the corporation, and shall 
 take care that the Sexton and other officers perform their 
 respective duties in a satisfactory manner, and that order he 
 maintained in and about the Church during the time of 
 divine service. They shall have power to make purchases of 
 all articles necessary for the use of the Church, not exceed¬ 
 ing in amount one hundred dollars per quarter, unless by 
 order of the Vestry. 
 
 Sect. 2. The Accounting Church Warden shall have the 
 custody of the title papers, seal, and account books of the 
 Corporation. lie shall have charge of all the revenues of the 
 Corporation, which he shall deposit in one of the banks of 
 this city, to his credit as Accounting Warden of St. 
 Clement’s Church, and shall disburse them under the orders 
 of the Vestry, and shall enter in a hook, to he kept for the 
 purpose, all sums received and paid by him, which book shall 
 he open to the inspection of the Vestry if required. He 
 shall pay the Rector, and all other officers of the Corporation 
 respectively, the stated salaries or compensation quarter- 
 yearly. And for all payments made by him, he shall take 
 lull and proper receipts, as his vouchers therefor. He shall 
 render to the "\ estry annual accounts of all receipts and dis- 
 
29 
 
 bursements at the stated meeting on Easter Tuesday; and 
 shall at that time have prepared and lay before the Yestry, a 
 statement of all the debts and liabilities of the Corporation, 
 in detail, and to whom the same are owing, respectively; 
 and also a statement of all the property, claims, and effects 
 belonging to the Corporation, which accounts shall be referred 
 to a committee to be audited. lie shall have special charge 
 of the communion plate, &c., and shall provide the bread 
 and wine necessary to the administration of the Holy Com¬ 
 munion. It shall be the duty of the Vestry to collect the 
 alms of the congregation when required. 
 
 Sect. 3. The Secretary shall keep regular minutes of the 
 proceedings of the Vestry, notify its members of all its meet¬ 
 ings, call special meetings when required, and perform 
 generally such duties as appertain to the office. 
 
 Sect. 4. All books and papers, the property of the Corpora¬ 
 tion, shall be delivered by the Secretary and Wardens to 
 their successors in office. 
 
 Sect. 5. The Sexton, besides his constant care of the Church, 
 shall perform all other duties connected with its affairs which 
 shall be required by the Rector or either of the Wardens. 
 
 ARTICLE V. 
 
 Registers. 
 
 The Accounting Church Warden shall provide a book, to 
 be kept under lock in the Vestry room, in which the Rector 
 or officiating Minister shall enter an account of all marriages, 
 baptisms, confirmations, and funerals at which he shall have 
 officiated—the record to state the date of the marriages, and 
 names of the parties, with the names of the parents ; the date 
 of the birth of the child baptized, with its name and those of 
 the parents and sponsors; the name of the adult baptized, 
 with those of the sponsors ; the name of the person con¬ 
 firmed ; and the name and age of the person buried, with 
 the date of his or her death. 
 
30 
 
 This book shall belong to, and remain with the Vestry as 
 part of the Church Records. 
 
 Certificates from these records, under seal, shall, when re¬ 
 quested, be given without charge, by the Wardens. 
 
 ARTICLE VI. 
 
 Committees. 
 
 The Standing Committees shall be appointed by the Rec¬ 
 tor, and shall consist of three members on the Committee 
 of Accounts, three members on the Committee on Music, five 
 members on the Committee on Distribution of Collections, 
 three members on the Committee on Sunday Schools, three 
 members on the Steeple and Bells. 
 
 ARTICLE VII. 
 
 Pews and Pew Rents. 
 
 Sect. 1. Any person may acquire a right to hold perma¬ 
 nent sittings in the Church, the Vestry not objecting, by 
 paying such a sum as shall have been assessed upon such 
 sittings by the Vestry, a list of which shall always hang in 
 the Vestry room: Provided ', That no person shall hold less 
 than all the permanent sittings in one pew. 
 
 Sect. 2. All other sittings shall be termed “ rented sit¬ 
 tings,” and shall be set forth and described in a book to be 
 kept for that purpose. Ro such sitting shall be rented for 
 anvterm exceeding one vear from the next semi-annual col- 
 lection day; and the rent or compensation shall be payable 
 semi-annually in advance on the first Mondays of April and 
 October. The actual renter not being in arrears, shall have 
 a preference over any other applicant for the same sitting or 
 sittings. 
 
 Sect. 3. A register of permanent and rented sittings in the 
 Church shall be kept by the Accounting Church Warden. 
 
 Sect. 4. All transfers of permanent sittings shall be made 
 in writing, in a book to be kept for that purpose by the Ac- 
 
31 
 
 counting Church Warden, hut no transfer shall have any 
 effect until it he approved by the Vestry, and entered in the 
 said register. 
 
 Sect. 5. The Accounting Church Warden shall have power 
 to let any vacant sittings, subject to the approbation of the 
 Vestry, and he shall report at each meeting all the sittings 
 let since the last meeting, which, being approved, shall be 
 entered on the Minute Book of the Vestry. 
 
 Sect. 6. When the same pew is rented by more than one 
 person, no particular part of the pew shall he considered as 
 belonging exclusively to any or either of them, and in case 
 of dispute, the Accounting Warden shall adjust the same. 
 If either of the parties shall refuse to acquiesce, the matter 
 shall he decided by the Vestry. 
 
 Sect. 7. If any person holding permanent sittings in the 
 Church, shall let, sell, or otherwise dispose of the same to 
 any other person, without the consent of the Vestry, his 
 right therein shall be forfeited. 
 
 Sect. 8. The pew rents shall be payable in such place as 
 the Vestry may designate semi-annually, on the first Mon¬ 
 days in April and October in each year; and all persons in¬ 
 debted for pew rent shall he hound to pay the same then and 
 there, without further demand. 
 
 Sect. 9. If any person shall, for the space of six calendar 
 months, be in arrear for a year’s pew rent, for any sitting or 
 sittings, the Accounting Church Warden shall have power 
 forthwith thereafter to let the same as vacant. Or if any 
 person holding permanent sittings in the Church, shall be in 
 arrear for the tax upon the same for the space of two years, 
 his or her right therein shall be forfeited. 
 
 Sect. 10. When any permanent sittings shall he forfeited, 
 the same shall be reported to the Vestry, and being approved, 
 the name of the holder shall be erased from the register. 
 
 O 
 
Sect. 11. The tax upon permanent sittings shall he as 
 directed from time to time by the Vestry. 
 
 Sect. 12. The carpets of the pews shall not be removed 
 from the Church except by order of the Vestry : the cushions 
 of the pews shall be uniform in color and material, as di¬ 
 rected by the Vestry. 
 
 article tin. 
 
 Seal of tie Corporation. 
 
 The Seal—representing a celestial crown with the circum¬ 
 scription, "Sigillum Ecclesife S. Clementis. Fhilada." — shall 
 be of metal: it shall be used in all acts of the Vestry requir¬ 
 ing the seal, and only by their order. 
 
 ARTICLE IX. 
 
 Repeal or alteration of the By-laws. 
 
 Vo repeal or alteration of these By-laws shall be made, 
 unless j reposed at a previous meeting, and adopted by two- • 
 thirds of the members present; the notices for both meetings 
 having expressed that alterations in the By-laws will be pro¬ 
 posed or acted upon. 
 
 Affidavit of TT*. B. .V. Stewart. 
 
 L I am the Assistant Minister of St. Clement's Church, 
 Philadelphia, and entered upon the duties of my said office 
 on or about Easter day. 1869. My salary is $500 a year. 
 
 II. I have during all of the time of my connection with 
 said Church, received only three communications from the 
 Vestry of said Church; the first calling me as Assistant 
 Miuister of said Church: the second conveying resolutions 
 of thanks for a memorial window I put therein, and the 
 third dismissing me therefrom. 
 
 III. I have never been charged, presented, or tried for 
 any offence whatever, aud I have never had any quarrel 
 with any member of said Church, but on the contrary, have 
 
had the assurance of large numbers of them of their coufi- 
 deuce in me, and their desire that I should not leave said 
 Church. 
 
 IV. VThen I was called to and accepted the Assistant 
 Ministership of St. Clement’s Church, no terms in regard to 
 any tenure were stipulated and agreed upon between me and 
 the Mestiy, or congregation of the said Church. There was 
 no contract of hiring between us, for a year or any other 
 term, but I accepted the office according to the usage of the 
 Protestant Episcopal Church. I have always understood it 
 to he, until the relation of Minister and people was dissolved 
 by mutual consent, or the Minister was removed for cause 
 shown after trial or regular investigation. I have been in 
 the m ini stry of the Church twenty-seven years, and nineteen 
 of them in the United States, and have had charge of four 
 Parishes in that time. I have never known of the dismissal 
 of a Minister by the ex parte action of any one, Vestry, or 
 congregation, or Bishop, and I have always understood and 
 believe, that I am not at liberty to leave the Church of my 
 own Parish by my own mere motion, but that I must have 
 the consent of the Parish, or obtain permission from the au¬ 
 thorities of the Diocese for cause shown. 
 
 Affidavit of Walter H. Tilden. 
 
 I. I am a member of St. Clement’s Church, and a pew- 
 holder therein, and have been such about four years. I have 
 been a Vestryman of said Church, and favored Mr. Walden 
 while he was the Eector of the Church, and now favor Dr. 
 Batterson, and Dr. Stewart ; and, so far as I know the senti¬ 
 ments of the congregation of said Church, I believe they are 
 by a lai’ge majority in favor of the present Ministers. 
 
 IT. Some time ago, I had a conversation with Mr. Morris, 
 concerning the Ministers of St. Clement's Church. He said 
 to me, that as the Vestry called the Ministers, they could 
 discharge them. I asked him what would be the consequence 
 if they would not be discharged, when he said they could 
 close the doors of the Church, and thereby keep them out. 
 
34 
 
 lie further said, that he would rather see the Church closed 
 than kept open under the present Ministers. 
 
 III. From my knowledge of the sentiments of the pew- 
 holders and congregation of said Church, I believe that a 
 large number of them will leave said Church, if the acting: 
 Vestry of the Church he permitted to deprive them of the 
 Ministers of their choice. 
 
 Affidavit of C. Gedney King. 
 
 I. A short time prior to the Easter election, I was riding 
 in a Walnut street car, in which were seated Mr. George H. 
 Allen and a friend, conversing together about St. Clement’s 
 Church, and the election then near at hand. Mr. Allen’s 
 friend asked him what they were going to do if they (the 
 Vestry party) were successful at the election. Mr. Allen said, 
 that rather than have the thing go on as it was, they would 
 close the Church; that Dr. Batterson had thrown down the 
 gauntlet and they would take it up. 
 
 Affidavit of Elias L. Boudinot. 
 
 I. I am a member of, communicant, and constant attend¬ 
 ant at St. Clement’s Church, and have been a pew-holder 
 in said Church for the two years last past. 
 
 II. I desire that the connection of the Rev. Drs. Batterson 
 and Stewart with the said Church should remain unbroken, 
 and believe such to be the wish of a large majority of the 
 congregation. 
 
 III. I believe that should the action of the present 
 (de facto ) Vestry be sustained, it would injure the financial 
 affairs of said Church, and would depreciate the value of 
 pew-holdings. 
 
 Affidavit of Charles B. Stewart. 
 
 I. I am a member of St. Clement’s Church, and have been 
 a constant attendant and pew-holder in said Church for 
 
35 
 
 the great part of the time since the Church was formed 
 and for the two years last past. 
 
 II. I desire the Eev. Drs. Batterson and Stewart 
 should retain their connection with said Church, and I 
 believe that a majority of the congregation are unwilling 
 that they should leave it. 
 
 Affidavit of M. Morris Marple. 
 
 I. I am a pew-holder and attendant at St. Clement’s 
 Church, and have been such for the last two years, and 
 am not a member of any other church. 
 
 II. I desire that the connection of the Rev. Drs. Batterson 
 and Stewart with said Church should remain unbroken, and 
 I believe that to be the desire of a large majority of the con¬ 
 gregation of said Church. 
 
 III. I believe that if the action of the present acting 
 Vestry be sustained, it would cause many of the members 
 and pew-liolders to leave said Church, and thereby injure the 
 financial affairs thereof, and depreciate the value of the 
 sittings. 
 
 Affidavit of Henry L. Marple. 
 
 I. I am a member, communicant, regular attendant, and 
 pew-holder of St. Clement’s Church. 
 
 II. I desire that the connection of the Rev. Drs. Batterson 
 and Stewart with said Church should remain unbroken, and 
 I believe that to be the desire of a large majority of the con¬ 
 gregation of said Church. 
 
 III. I believe that should the action of the present Vestry 
 be sustained, it would injure the financial affairs of said 
 Church, and would depreciate the value of sittings therein. 
 
 Affidavit of Richardson L. Wright, Jr. 
 
 I. I am a member, communicant, pew-holder and attend¬ 
 ant at St. Clement’s Church, and favor the Rev. Drs. 
 
36 
 
 Batterson and Stewart as the clergy thereof, and believe 
 that a large majority of the communicants and pew-holders 
 of said Parish and Church are of the same mind. 
 
 II. I believe that if the action of the acting Yestry be not 
 restrained, large numbers of the congregation and pew- 
 liolders would leave the Church, to the great detriment 
 thereof, financially and spiritually, and that it will deter 
 others from connecting themselves with said Church, and 
 thereby render it impossible to dispose of my holding for the 
 remainder of my term, and deprive me of the value and 
 benefit thereof. 
 
 Affidavit of John L. Kates. 
 
 I. I am a pew-holder in St. Clement’s Church, Philadel¬ 
 phia, and have been for ten years. 
 
 II. I attend said Church frequently, as also do my family, 
 and I do not attend any other Church than St. Clement’s. 
 
 III. I favor Drs. Batterson and Stewart as the Ministers 
 of said Church, and am opposed to the action of the Yestry 
 in their efforts to dismiss said Ministers; and all of my 
 family are of the same opinion in this respect. 
 
 Affidavit of Henry X. Barnes. 
 
 I. I am a member, communicant, and regular attendant 
 at St. Clement’s Church, Philadelphia, and have been a pew- 
 holder therein for the last five years, the allegation of the 
 defendants in their answer to the quo icarranto , to the con¬ 
 trary thereof, notwithstanding. 
 
 II. I desire Drs. Batterson and Stewart to remain in the 
 said Church, and I believe that a large majority of the actual 
 attendants, communicants, worshippers, and pew-holders are 
 of the same way of thinking; and that if the Acting Yestry 
 succeed in dismissing said Ministers, a large majority of the 
 worshippers and pew-holders will leave said Church, to the 
 great detriment thereof, spiritually and financially. 
 
/ 
 
 ST 
 
 Affidavit of Leivis G. Bull. 
 
 I. I am a member of and pew-holder in St. Clement’s 
 Church, Philadelphia, and have been such for seven years. 
 I have regularly paid the pew rent thereof, and have the 
 receipts therefor, some of them being issued in the name of 
 Mr. Lewis G. Bull, and some in the name of Mrs. Lewis G-. 
 Bull. At the Easter election, 1871, I was told that the pew 
 stood in my wife’s name, when I offered to vote and was 
 refused the right; whereupon I brought my wife, and went 
 with her and voted. 
 
 II. I and my wife and family favor Drs. Batterson and 
 Stewart as the Ministers of said Church, and hope that they 
 may be sustained in their offices. 
 
 Affidavit of Samuel Ritchie. 
 
 I am well acquainted with Joseph It. Wilkins, Jr. He 
 is an attendant at St. Clement’s Church. He lias a pew 
 therein, which he rents from the Church, and has held about 
 one year. Before he took said pew, he rented one-half of a 
 pew from Mrs. Thaddeus Norris, and paid the rent therefor 
 to her. 
 
 The following affidavits were read on the part of the de¬ 
 fendants. 
 
 Affidavit of John Lambert. 
 
 John Lambert, being duly affirmed, deposes and says, that 
 he is instructed, and believes none of the complainants are 
 members of the Hector, Church Wardens and Vestrymen ot 
 St. Clement’s Church, in the City of Philadelphia, a body 
 politic, as set forth in said bill. Hot one of them owns, or 
 has ever owned, a pew in the said Church, though some of 
 them are members of the Church, entitled to vote. The 
 
 complainants, with the exception of Hermon G. Batterson 
 
 4 
 
38 
 
 and ~W. II. X. Stewart, and Lewis G. Bull, are renters of 
 pews and sittings in said Church. The said Ilermon G. Bat- 
 terson and W. II. X. Stewart do not, nor does either of 
 them, rent a pew or sitting in said Church, and neither of 
 them has ever paid for or held a pew or sitting in said 
 Church. The said Lewis G. Bull is not the owner or renter 
 of a pew or sitting in said Church, and his name does not 
 appear on the Vestry books. Of the complainants, J. C. 
 Morrison, J. Douglass Brown, William A. Rolin, Stephen 
 Fuguet, M. Morris Marple, Henry X. Barnes, and Walter H. 
 Tilden, only, were competent to vote for Vestrymen at the 
 election held on Easter Monday, April 10th, 1871. They 
 only of the complainants appearing by the Vestry hooks to 
 have paid two successive years immediately preceding the 
 time of said election, for a pew or sitting in said Church. 
 
 That John Lambert, Henry Henderson, Henry Xorris, and 
 Charles S. Pancoast, of the defendants, are each pew owners 
 in said Church, and are undoubtedly members of said Cor¬ 
 poration. That Henry C. Thompson, Henry S. Lowber, P. 
 Pemberton Morris, George X. Allen, James Dougherty, 
 Francis R. Abbott, Edward Borhek, and T. Franklin Cooper, 
 of the defendants, are renters of pews or sittings in said 
 Church, and appear by the Vestry books to have paid two 
 successive years immediately preceding the time of said elec¬ 
 tion, for a pew or sitting in said Church, as do also the said 
 John Lambert, Henry Xorris, and Charles S. Pancoast. 
 The said defendants now exercise the office of Vestrymen, 
 having, as they believe, been regularly and duly elected 
 thereto on the 10th day of April, 1871, each and all of them 
 being by the Constitution and By-laws of said Corporation 
 duly qualified to act as such Vestrymen. 
 
 The statements of the bill as to the issuing, service, and 
 pendency of a writ of quo warranto in the Supreme Court, 
 are true. 
 
 The statements of the bill as to the*election of the Rev. II. 
 G. Batterson, and the Rev. W. II. X. Stewart, to the offices 
 ot Rector and Assistant Minister respectively, and as to the 
 amount of salary paid them, are true. 
 
 I he resolutions recited in the fourth article of the bill 
 
39 
 
 were presented and passed as therein stated; and the state¬ 
 ment in said article of the action of the Rev. II. G. Batterson 
 and the Vestry respectively, is true. 
 
 The deponent further says that Messrs. Lambert and Mor¬ 
 ris laid said resolutions before the ecclesiastical authority of 
 the said Diocese on the third day of May, 1871, and that the 
 Right Rev. Vm. Bacon Stevens, Bishop of the Diocese of 
 Pennsylvania, concurred in the same on the fourth day of 
 May, A. D. 1871. 
 
 This deponent further says that, to the best of his knowl¬ 
 edge and belief, the defendants are now, and were at the 
 time of their action upon the said resolutions, the legal repre¬ 
 sentatives and duly elected Vestry of said Church. That 
 their action upon said resolutions was regular, canonical, and 
 lawful. That with the concurrence of the ecclesiastical 
 authority, they had full power to dissolve the connection 
 between the Chnrch and its Rector and Assistant Minister, 
 and that that connection is dissolved and was dissolved 
 before the said injunction was served, in accordance with 
 the Constitution and Canons of the Protestant Episcopal 
 Church in Pennsylvania, and in the United States. 
 
 That the defendants never intended, as alleged in the bill, 
 pending their efforts to obtain for their action the concur¬ 
 rence of the ecclesiastical authorities, to prevent, by acts of 
 force, the exercise by the Rector and Assistant Minister of 
 the functions of their respective offices within St. Clement’s 
 Church. 
 
 The deponent further says that John Lambert, Henry 
 Henderson, Henry Horns, and Charles 9. Pancoast, of the 
 defendants, the Executors of the Estate of the late Wm. 
 Savery Wilson, Dr. J. A. McCrea, George W. Hunter, and 
 Simon Delbert (the four last named not taking part with the 
 complainants in these proceedings), are the only parties own¬ 
 ing any pews in the said Church, except the Corporation 
 itself, which is the donee of the said W. S. Wilson, of thirty- 
 six pews. And that the said Henry Henderson owns eight, 
 and the Estate of AV. S. AVilson one hundred and thirty-seven 
 pews. They are the only parties interested as proprietors in 
 the Church property. There can be no damage, as this de- 
 
40 
 
 ponent believes, to the leasing value of complainants’ pews, 
 as they own none. 
 
 The deponent further says, that the complainants, Charles 
 B. Shillitoe, Samuel Ritchie, Richardson L. Wright, Jr., 
 Henry 1ST. Barnes, J. C. Morrison, John Iluggard, Stephen 
 Fuguet, Walter H. Tilden and C. Gedney King, who were 
 renters of pews up to April 3d, 1871, have not paid the pew 
 rent due in advance from that day, and, if renters of pews, 
 are in arrear since said April 3d, 1871. 
 
 Additional Affidavit of John Lambert. 
 
 John Lambert further avers, that the Vestry of St. Clem¬ 
 ent’s Church, for the year from Easter Monday, 1871, to 
 Easter Monday, 1872, is composed of the following named 
 persons, to wit: John Lambert, Henry S. Lowber, P. Pem¬ 
 berton Morris, Henry Henderson, Henry Korris, George H. 
 Allen, Henry C. Thompson, James Dougherty, Charles S. 
 Pancoast, Francis R. Abbott, Edward Borhek, and T. Frank¬ 
 lin Cooper. And that the Vestry for said Church for the 
 year from Easter Monday, 1870, to Easter Monday, 1871, 
 was composed of some of the same persons, to wit: John 
 Lambert, Henry S. Lowber, P. Pemberton Morris, Henry 
 Henderson, Henry Xorris, George FT. Allen, Henry C. Thomp¬ 
 son, James Dougherty, Charles S. Pancoast, and Francis R. 
 Abbott, and also Walter II. Tilden and Charles B. Stewart, 
 which last two named are now relators in the suggestion for 
 the writ of quo warranto, brought before the Supreme Court 
 against the present Vestry of said St. Clement's Church. 
 
 Deponent further says, that the encumbrances against said 
 Church, are a ground rent of fourteen hundred (1400) dollars 
 per annum, and bonds and mortgages amounting to ten 
 thousand (10,000) dollars, secured on the Parish building ; 
 together with sundry indebtedness not secured by liens. 
 
 Additional Affidavit of John Lambert. 
 
 John Lambert, being duly a ffirmed according to law, doth 
 depose and say, that he is Accounting Warden of St. 
 
Clement’s Church, in the City of Philadelphia, and as such 
 has possession of the Vestry hooks. 
 
 That the following named persons are owners and renters 
 of pews in said Church, from the dates set opposite their 
 respective names. (Here follows a list of 96 names.) 
 
 And the deponent saith that the above statements, taken 
 by him from the Vestry books, are true to the best of his 
 knowledge and belief. 
 
 Mr. Hanson then addressed the Court on behalf of the 
 plaintiffs. He said— 
 
 This case is peculiai'ly free from a dispute as to the facts, 
 and so far as they affect the question now before the Court 
 in its strictly legal character, they are these. 
 
 On the 10th April, 1871, the regular annual election for the 
 Vestrymen of St. Clement’s Church was held. The result was 
 a declaration by the judges of election, that Mr. Lambert 
 and others (the defendants here) were chosen to be Vestrymen 
 from Easter Monday, 1871, to Easter Monday, 1872, and 
 those gentlemen accordingly entered upon the performance of 
 their duties. On the 18tlr April, 1871, Mr. Tilden and others, 
 who had contested with Mr. Lambert and others, in the elec¬ 
 tion to the office of Vestrymen, tiled in the Supreme Court a 
 suggestion for the writ of quo warranto; the writ Avas allowed 
 and made returnable to the first Monday of May following. 
 The suggestion alleged that Mr. Lambert and others were 
 not duly and lawfully elected, and charged that votes of 
 those who under the charter of the Church were not legal 
 voters, were received for Mr. Lambert and those acting with 
 him, and that the votes of others (among them the Rector 
 and the Assistant Minister) who offered to vote for Mr. Tilden 
 and others, and who were legally qualified voters, were re¬ 
 jected; and that had the first class of votes been rejected, 
 and the second class i-eceived, Mr. Tilden and the plaintiffs 
 in the quo warranto proceedings, would have been the right¬ 
 fully elected Vestrymen. The proceedings in the quo war¬ 
 ranto are still pending. At a meeting of the acting Vestry, 
 held 3d May, 1871, Mr. Thompson presented to the meeting 
 a series of resolutions, proposing with, the concurrence of the 
 
42 
 
 Ecclesiastical authority of the Diocese, to dismiss the Rector 
 and the Assistant Minister from their offices. Iso reasons for 
 this course were assigned. The Rector, who presided, declined 
 to entertain any action upon the resolutions, on the ground 
 that the attempted course was not within the scope of the 
 Vestry’s authority, and he refused to entertain an appeal 
 from his decision. The acting Secretary of the meeting, at 
 the request of one of the Vestrymen, submitted the resolu¬ 
 tions for the action of the Vestry ; and disregarding the pres¬ 
 ence of the Rector and without his action, the resolutions 
 were adopted. The meeting adjourned to meet on Saturday, 
 6th May, 1871. 
 
 On the day following that of the Vestry meeting, that is, 
 4th May, the Rector and others, parties plaintiff, filed their 
 . bill praying for an injunction to restrain the defendants from 
 interfering with the exercise by the Rector and Assistant Min¬ 
 ister of their offices in St. Clement’s Church, uutil a canonical 
 dissolution of the connection existing between them and the 
 congregation shall have taken place in accordance with the 
 canons of the Protestant Episcopal Church; and under the 
 new equity rules an ex parte injunction issued. On the same 
 day, May 4th, a notification of this action of the Rector and 
 others was sent to the Bishop of the Diocese. 
 
 By the affidavits filed on behalf of the present defendants, 
 it appears that the Bishop - on the day following the Vestry 
 meeting, and on the very day on which the injunction issued, 
 and notice of its exit was sent to him—with a haste that 
 counsel for defendants may show to have been well con¬ 
 sidered, concurred in the action of the Vestry; although, 
 neither by the Vestry nor by any one, had there been a pre¬ 
 sentment against either the Rector or Assistant Minister; 
 neither a hearing nor a trial. 
 
 Not only have the defendants sought to do that which 
 they had no lawful power to do, but their action has been 
 that of a body whose very existence the Commonwealth had 
 called in question, seeking, in disregard of the wishes of their 
 constituents, of the wishes of more than two-thirds of the 
 communicants of the Church, and of those who occupy 
 pews and sittings, as the affidavits show, to sever the con- 
 
43 
 
 nection between the Church and its Rector and Assistant 
 Minister; and this without a cause alleged or a charge made. 
 
 The aid of equity is invoked on. two grounds. 
 
 I. To protect legal rights to property from irreparable in¬ 
 jury pending litigation. This is part of the original and 
 proper office of a court of equity. 
 
 II. To restrain an act wholly illegal, and from which, if 
 not restrained, irremediable damage will flow. 
 
 The legal rights alluded to, and which the Rector and As¬ 
 sistant Minister have, are 1. The right to their salaries. 2. 
 The right to pursue their avocations. This is a property, 
 an estate in their professions. In Cummings v. State of Mis¬ 
 souri , 4 Wall. 277-320, in reply to the argument of counsel 
 for the State, that to deprive one of life, liberty and property, 
 was punishment, but to take from one a right to exercise a 
 vocation was not, Mr. Justice Field, in showing the fallacy 
 of this, said, “ITe does not include under property those 
 “ estates which one may acquire in professions, though they 
 “ are often the source of the highest endowments and honors.” 
 
 The legal rights of those having sittings and rented pews, 
 are 1. The enjojunent of the right to meet and hear the 
 teachings for which they have paid. 2. The right to transfer 
 their sittings for a consideration, which would be barred if the 
 Rector is dismissed. The character of a pew-right is described 
 in Church v. Wells’ Executors , 12 Harris (24 Penna.), 249. 
 3. The right to require the body to whom is delegated the 
 power to collect and apply funds, that such body shall apply 
 said funds in accordance with the trust accepted. “ It ap- 
 “ pears that the funds of the institution are under the con- 
 “ trol of the governing body, and the defendants have prac- 
 “ tically the power of withholding from the plaintiff the 
 “ emolument assigned to and accepted by him. This consti- 
 “ tutes a trust which they have to perform, and which they 
 “ are hound to perform in favor of the person who fills the 
 “ office of pastor, and accusing the plaintiff to he wrongfully 
 “ deposed. I am of opinion, the relation of trustee and 
 “ cestui que trust does exist, &c.” Eauguars v. Rivaz , 28 
 Beavan, 233-247. 
 
 In order to obtain protection of legal rights pending liti- 
 
44 
 
 gation, the plaintiffs must show 1. That there is a real ques¬ 
 tion in litigation. 2. That there will be irreparable injury. 
 3. That the weight of inconvenience (in balancing between 
 interfering and not interfering) is greatly in favor of plaintiffs. 
 
 In the Great Western Railway Co. v. The Birmingham and 
 Oxford Junction Co ., 2 Phillips, 597-602, Lord Chancellor Cot- 
 tenham said: “ It is certain that the Court will, in many 
 “ cases, interfere and preserve property in status quo during the 
 “ pendency of suit in which the rights to it are to be decided, 
 “ and that without expressing and often without having the 
 “ means of forming any opinion as to such rights.” * * * 
 “ In order to support an injunction for such purpose it is not 
 “ necessary for the Court to decide upon the merits in favor 
 “ of the plaintiffs. If, then, this bill states a substantial 
 “ question between the parties, the title to the injunction 
 * “ may be good, although the title to the relief prayed 
 “ may ultimately fail.” In Daly v. Archbishop of Dublin , 
 Flanegan & Kelly's Kep. 263 (Kolls Court), the Master of 
 the Polls granted an injunction to restrain the Ai’chbishop 
 from collating by way of lapse to a deanery, pending a suit 
 in the Consistorial Court respecting the presentment by the 
 chapter. The Mammoth Vein Coal Co.’s Appeal , 4 P. F. Smith, 
 183 (54 Penna.), although not a case for an injunction, yet 
 the principle is stated by Thompson, J. “ It ought not to 
 “ be forgotten that a preliminary injunction is a restrictive 
 u or prohibitory process designed to compel the party against 
 “ whom it is granted to maintain his status merely until the 
 “ matters in dispute shall, by due process of the Courts, be de- 
 “ termined; the sole foundation for such an order being, in 
 u addition to cases of the invasion of unquestioned rights, 
 “ the prevention of irreparable mischief or injury.” 
 
 Irreparable injury. This must be a grievous or material 
 injury, and not adequately reparable by damages at law. In 
 Mammoth Vein Coal Cods Appeal , such injury is said to be 
 “ injurious consequences which cannot be repaired under any 
 “ standard of compensation.” One that cannot he readily 
 estimated in damages. A dismissal may render exercise of 
 the Hector's avocation doubtful and uncertain. It may 
 break up the Church, and do an injury to those who rented 
 
45 
 
 sittings on the faith of Mr. Batterson’s Rectorship, which 
 cannot he estimated. 
 
 Weight of inconvenience. The leading consideration is 
 as to the comparative mischief to the parties. If, upon the 
 balance of inconvenience, it appears that greater damage 
 would arise to the defendants by granting the injunction in 
 the event of its turning out afterwards to have been wrongly 
 granted, than to the plaintiff from withholding it, in the 
 event of the legal right proving to be in his favor, the injunc¬ 
 tion will not be granted. If it appear that greater damage 
 would arise to the plaintiff by withholding the injunction in 
 the event of the legal right proving to be in his favor, than 
 to the defendant by granting the injunction, in tlie event of 
 the injunction proving afterwards to have been wrongly 
 granted, the injunction will issue. 
 
 The litigation pending under the quo warranto is a chal¬ 
 lenge and warning to the defendant, and the quo warranto is 
 itself a cautionary writ, and should need no injunction to 
 aid it. 
 
 II. To restrain the wholly unlawful. invasion of aright. 
 The proof is that the Ministers are regularly settled in the 
 Church, with a perfect right to the salaries agreed upon. 
 The action of the Vestry is unlawful, 1. Because the meet¬ 
 ing at which the resolutions were passed was not held in 
 accordance with the provisions of the By-laws. 2d. Because 
 any action of the Vestry of St. Clement’s Church to dismiss 
 a Minister is ultra vires and void. 3. Because the Vestry 
 have sought to disfranchise a member of the Corporation 
 without a charge, a summons or a hearing. 
 
 The meeting was irregular. By sect. 5 of art. 2 of the 
 By-laws, the Rector shall, if present, preside at the meetings 
 of the Vestry. The Vestry is composed of twelve lay mem¬ 
 bers. A quorum consists of five. Thus its meetings are 
 (when the Rector is present) composed of integral parts, 
 clerical and lay. Each part derives its right from a different 
 source,—the Rector, from the action of the Vestry and the 
 Bishop ; the Vestry, from election by members of the Church. 
 The Rector is such until canonically dismissed. The Vestry 
 
46 
 
 change from year to year. In Wilson v. Me Math, 3 Philli- 
 more, 67-81 (Peculiars Court of Canterbury, 1819), it was 
 held, that the Rector is not a mere individual of the Vestry. 
 He is an integral part of the parish. Sir John Hiclioll said— 
 “ The minister is not, in consideration of law, a mere indi- 
 “ vidual of the Vestry, as has been contended, nor is he in 
 “ any instance so described. On the contrary, he is always 
 “ described as the first and as an integral part of the parish. 
 “ The form of citing a parish proves this position, namely, 
 “ as ‘ the minister , church warden, and parishioners,’ he being 
 “ specially named. Such is the legal description of a parish 
 “ in all formal process.” In King v. Miller, 6 T. Rep. 268-278, 
 Lord Kenyon, Cli. J., said: “This proposition seems to he 
 “ now clearly established; that when there is a definite 
 “ body in a corporation, a majority of that definite body 
 “ must not only exist at the time when any act is to he done 
 “ by them, hut a majority of that body must attend the 
 “ assembly when such act is done.” In King v. Williams, 
 2 Maule & Selwyn, 141, Lord Ellenborough, Ch. J., said, it 
 is necessary that a presiding officer, who by the charter of a 
 borough forms an integral part of an elective assembly, 
 should be present up to the time when the election is com¬ 
 pleted, and an election cannot be proceeded in during his 
 absence, although he should improperly absent himself. In 
 the Case of St. Mary’s Church, 7 S. & R. 517-538, a religious 
 corporation, consisting of eight lay and three clerical mem¬ 
 bers, the lay members were in favor of a change of charter, 
 and the clerical members were not. At the meeting for 
 alterations, there were present seven lay and one clerical 
 member. Held to be an unlawful meeting, because a majority 
 of the integral parts of the corporation were- not present. 
 
 2. Because the action of the Vestry is ultra vires and 
 void. Although this Court will not re-judge the judgment of a 
 Vestry ( forum domesticum ) if it lias acted within the scope of its 
 authority, yet the Court will always see whether such tribu¬ 
 nals have so acted. In King v. Bishop of Ely, 2 Term Rep. 
 290-336, Ashliurst, J., said: “If this be the true construc- 
 “ tion of the statute, the right of nomination was an object 
 “ of the Bishop’s visitorial power. Therefore, our opinion in 
 
47 
 
 “ this case does not militate against any of the cases cited 
 “ at the bar; those cases show that the acts of a visitor, 
 “ whether right or wrong, are not to he examined in the 
 “ courts of law, but those are cases where he has acted within 
 “ his jurisdiction, and they proceed upon this principle that 
 “ he is the judge whom the founder has thought fit to ap- 
 “ point.” In Long v. Bishop of Cape Town , 1 Moore, Privy 
 Council Cases, (H. S.) pg. 411, pg. 461, Lord Kingsdown, said : 
 “ When any religious or other lawful association has not 
 “ only agreed on the terms of its union, hut has also consti- 
 “ tuted a tribunal to determine whether the rules of the as- 
 “ sociation have been violated by any of its members or not, 
 “ and what shall be the consequence of such violation ; the 
 “ decision of such tribunal will he binding when it has acted 
 “ within the scope of its authority ; has observed such forms as 
 “ the rules require, if any forms he prescribed, and if not, 
 “ has proceeded in a manner consistent with the principles of 
 “ justice. In such cases the tribunals so constituted are 
 “ not in any sense courts ; they derive no authority from 
 “ the Crown; they have no power of their own to enforce 
 “ their sentences; they must apply for that purpose to the 
 “ courts established by law, and such courts will give effect 
 “ to their decisions as they give effect to the decisions of 
 “ arbitrators, whose jurisdiction rests entirely upon the 
 “ agreement of the parties.” See also In re Bishop of Natal, 
 3 Moore, P. C. C. (H. S.) 115 ; Murray v. Burgess , 4 Moore, 
 P. C. C. (1ST. S.) 250. In Dauguars v. Bivaz, 28 Beavan, 233, 
 Sir John Romilly inquired into the right of a governing body 
 to dismiss a pastor from his office in the French Protestant 
 Church of London, and issued an injunction to prevent their 
 doing it. In Com. v. The German Soc ., 3 Harris,(15 Penna.) 251, 
 it is said the courts will preserve private tribunals within the 
 line of their authority, and examine whether they have juris¬ 
 diction of what they attempt to adjudicate, (explaining Com. 
 v. Ben. Soc., 8 W. & S. 247 ; and Torarri v. Ben. Soc. 4 Barr, 
 (Pa.) 519.) In McGinnis v. Watson, 5 Wright, (41 Pa.) and 
 Sutter v. Trustees, 6 Wright, 503, the Court examined to see 
 if the governing bodies of churches had exceeded their powers. 
 So also in Smith v. Nelson, 18 Vermont, 511,549, 566, by Ch. 
 
48 
 
 Williams; Watson v. Avery , 2 Bush, (Ky.) 332,348. And this 
 Court in Leech v. Board of Brokers , 2 Brewster, 571, examined 
 into the power of the Philadelphia Board of Brokers to expel 
 a member, and prevented them from doing it in that case. 
 
 The Court, therefore, having upon it the duty to examine 
 if the Vestry have acted within the scope of their authority, 
 where exists the authority to disfranchise a member of the 
 Corporation? In Angel & Ames on Corp. § 432, it is said: 
 “ The power of disfranchisement and a motion, unless it has 
 “ been confided to a particular person or class, is to be exer- 
 “ cised by the corporation at large, and not by the person or 
 “class in whom the right of appointing or admitting is 
 “ vested.” And in pleading disfranchisement, if the au¬ 
 thority is not shown in a class, it will be construed to be in 
 the body at large. 
 
 In Green v. The Church , 1 Sergeant & Rawle, 254, the 
 return stated a member was expelled by a select number. 
 The court said: “ It is not shown by what authority they 
 “ proceeded to try and expel a member. This is a radical 
 “ defect, for the power of expulsion must belong to the 
 “ society at large, unless by the fundamental article or some 
 “by-law founded in these articles, it is transferred to a 
 “ select number.” And to the same effect is Judge Williams’ 
 charge to the jury in Gordon v. Williams , case of the First 
 Reformed Presbyterian Congregation in the City of Philadel¬ 
 phia, in the Supreme Court of Pennsylvania, reported in the 
 Legal Gazette of Philadelphia, April 14th, 1871. 
 
 Nowhere in the Charter or By-laws does there exist author¬ 
 ity in a Vestry to dissolve the connection ; neither in the Can¬ 
 ons of the Diocese of Pennsylvania, nor in those of the Church 
 in the United States. The only canon on the subject is the 4tli, 
 Title 2 of Discipline, in the Digest of Canons in the Church, 
 imposing penalties. It does not give expressly the right to 
 any one; it contemplates two kinds of dissolution of the re¬ 
 lation—an irregular one, and a regular and canonical one. 
 If the Minister be dismissed by the Parish or Church, without 
 concurrence, then a penalty is imposed. If the Ecclesiastical 
 authority concurs, then the penalty is remitted; but the act 
 is not made regular or canonical as between the Minister and 
 
49 
 
 congregation. The Vestry is nowhere mentioned in the can¬ 
 non, or anywhere in the prayer hook, except in parenthesis, 
 as a substitute for the Church Wardens in the office for the 
 institution of ministers. The canon was enacted to impose 
 a penalty upon an act which the congregation might actually 
 hut not rightfully do; which penalty may be remitted by 
 the Ecclesiastical authority. But the dismissal is none the 
 less an offence ; although the penalty be afterwards forgiven. 
 It is a familiar rule of law, that a statute which imposes a 
 penalty is intended as a prohibition of the act. 
 
 The canonical dissolution is by consent, sanctioned by the 
 Ecclesiastical authority, or by presentment, trial and punish¬ 
 ment under Canon 2, Title 2 of Discipline. 
 
 3. Because the vestry have sought to disfranchise the 
 Rector, &c., without a hearing or trial. 
 
 In Bagg’s Case , 11 Coke’s Rep. 93-98, Ring’s Bench, 13 
 James, 1, for a mandamus, it was resolved, “and although 
 “ they have lawful authority either by charter or prescription 
 “ to remove any one from the freedom, and that they have 
 “just cause to remove him, yet it appears by the return that 
 “ they have proceeded against him without hearing him an- 
 “ swer to what was objected, or that he was not reasonably 
 “ warned. Such removal is void, will and shall not bind the 
 “ party quia quicunque aliquid statuerit parte inaudita altera , 
 “ aequum licet statuerit haud aequus fuerit , and such removal 
 “ is against justice and right.” So in King v. Gaskin , 8 
 Term Rep. 209, A. D. 1799, a return to a mandamus to re¬ 
 store, was held insufficient, because it did not state that the 
 party had been summoned to answer the charge before he 
 was removed. Kenyon, C. J., said : “ If we were to hold this 
 “ return to be sufficient, we should decide contrary to one of 
 “ the first principles of justice, audi alteram partem * * * 
 
 “ It is to be found at the head of our criminal law, that 
 “ every man ought to have an opportunity of being heard 
 “before he is condemned, and I should tremble at the con- 
 “ sequences o r f giving way to this principle. I have no doubt 
 “ that Dr. Gaskin has acted, on this occasion, from the best 
 “ motives, and notwithstanding our decision, he will be per- 
 
50 
 
 “ fectly justified in renewing liis accusation against this 
 “person, and in removing him from his office in a more 
 “ formal manner if the charge he true.” Doe on Demise 
 v. Gartham , 8 Moore’s Rep. 3G8, was an ejectment, A. D. 1823. 
 The visitors of a grammar school, who had dismissed the 
 schoolmaster for misconduct or breach of regulations of the 
 deed of endowment, could not recover possession of the school 
 house against the schoolmaster, because they had not legally 
 determined the schoolmaster’s interest, by first summoning 
 him, that he might be heard in his own defence. Queen v. 
 Smith, 3 Queen’s Bench, 614, A. D. 1844, was a mandamus 
 to restore one to his office as clerk of the parish. The re¬ 
 turn was that the clerk had misbehaved himself and had 
 been drunk within the view of the vicar ; to which it was 
 pleaded that the clerk had not been summoned to answer a 
 charge against him. And the return was held bad for not 
 showing that the clerk had been summoned. In Jones v. 
 Wright , 47 English Common Law Rep. 262, Queen’s Bench, 
 A. I). 1844, Lord Denman, C. J., said: “No proceeding in 
 “ the nature of a judicial proceeding can be valid unless the 
 “ party charged is told that he is so charged, is called on to 
 “ answer the charge, and is warned of the consequences of 
 “refusing to do so.” In Commonwealth v. The Pennsylvania 
 Beneficial Institution , 2 Sergeant & Rawle, 141, a member of 
 a society, being in arrears three months, under the charter, 
 which provided, “ that should any member neglect to pay 
 “his arrearages for three months, he shall be expelled,” was 
 struck off the society roll, and the court held the act was 
 illegal; that there should be a charge and an opportunity of 
 being heard. “ No man should be expelled in his absence, 
 without notice,” said C. J. Tilghman. 
 
 The resolutions of the Vestry dismissing the Rector and 
 Assistant Minister, were passed at a Vestry meeting, which, 
 in omitting the Rector as a part of it, was constituted in 
 disregard of the Charter and By-laws of St. Clement’s 
 Church. The Vestry (or as it would be called in England 
 the Select Vestry), have nowhere granted to them by the 
 Charter or the Canons of the Church, the power of dismissing 
 the Rector which they sought to exercise, and it does not 
 
51 
 
 reside in them vertuti officii; admitting solely for the pur¬ 
 pose of argument, they had this power of disfranchisement, 
 this quasi judicial power, then they have exercised it in a 
 manner which would of itself make their acts void ; what 
 has been done was in violation of the very conception of law 
 and judgment, and in disregard of the plainest dictates of 
 the English and American common law. 
 
 The wrongful act affects well defined rights of property 
 so injuriously, that it cannot he redressed by the machinery 
 of the courts of law; it calls for prevention; the injury would 
 be irreparable in the judgment of a Chancellor; and it 
 is clear that greater damage would befall the plaintiffs, 
 certainly the Rector and Assistant Minister, by withholding 
 the injunction, than to the defendants by continuing it. 
 
 The Court is therefore asked to continue the injunction 
 heretofore granted ex parte. 
 
 Mr. Biddle, on behalf of the defendants, said—It is to 
 he deeply regretted that this case has come before the 
 Court. It has been ardently desired that the difficulty would 
 be settled by arbitration outside. The present year presents 
 the first time within the past half century, that members of 
 this denomination have had recourse to the civil tribunals. 
 It has been the solace of the persons of that faith, that they 
 have been able to keep their troubles out of courts of justice. 
 The parties to the complaint have altogether misjudged their 
 remedy. The Ministers can leave at any time they see 
 proper, and the Vestry can dispense with their services at 
 any time it is their pleasure to do so. And if they think the 
 Ministers have been wronged, they have their remedy in a 
 civil tribunal, to bring a suit for the i-ecovei’y of their salary. 
 They should resort to the courts of law, for their salary, not 
 to a court of equity for an injunction. They have an 
 adequate remedy at law. This dismission is but the sever¬ 
 ance of a connection that is without terms as to time, and 
 it cannot be pretended that when they have an action at 
 law, they can by injunction tie up the hands of the Vestry, 
 and continue these disorders in the Church for another year. 
 I recognize in the fullest sense the right of men to worship 
 
according to their consciences, bnt it is most extraordinary 
 that persons becoming members of a Church, accepting its 
 rules and formulas, should, the moment they become so 
 associated, act contrary to those rules and formulas, and 
 when trouble arises, as in this case, say we are martyrs to 
 the cause of faith.” If they do not like the formulas, there 
 is a very simple thing for them to do—let them depart in 
 peace. 
 
 The pendency of the quo icarranto ought not to deprive 
 the Vestry of any of its powers ; they are the de fa-do Vestry, 
 to perform all the duties of the office fully and not by halves. 
 This was decided in the case of the Trustees v. Hill, 6 Cowen, 
 page 23. In that case de facto officers commenced and 
 maintained an action against a party who objected that 
 they were de facto officers only. But the objection was 
 overruled. 
 
 By the Constitution and Canons of the Church, the Vestry 
 is the ruling body, the organ of the Church, and they elect 
 the delegates to the Diocesan Convention. The Church acts 
 only by the Vestry. 
 
 The affidavits of a majority of the congregation ought not 
 to have any weight here. The question is, what is the power 
 of the Vestry, and are they acting within the scope of their 
 authority ? This question of dismissal was passed upon at 
 the election for Vestrymen, and now when they are success¬ 
 ful, an effort is made to prevent them doing the very thing 
 they were elected to do. The proceedings by quo warranto 
 were intended for delay, and this Court ought not to favor 
 that. The writ was filed in the Supreme Court, and made 
 returnable to May, a time when it is well known that that 
 Court would be away from this cit}% and sitting in another 
 district. An issue of fact is raised in it which cannot be 
 tried until next winter, although the real issue is one of law. 
 
 The Vestry is a body to perform its duties fully and not 
 by halves. They are to do everything or nothing. AVlio is 
 to keep the Church in repair, if the Vestry can be tied up by 
 an injunction, or pay interest on the incumbrances, and for 
 the music ? 
 
53 
 
 They are the old Vestry. They have given their means to 
 support it before the innovations were made. 
 
 The power to elect the Rector, includes the power to dis¬ 
 miss him. The Vestry elects him as will be seen by the 
 Charter, Art. V. and By-laws, Art. III. A power of dismissal 
 is given by Title II., Canon 4 of the Digest of the Canons. 
 The title of this canon is, “ Of the dissolution of a pastoral 
 connection.” It is always proper to resort to the title of a 
 statute for aid in construing it. This canon treats of the 
 dissolution—the severance of the relation. Dismission is as 
 wide as the poles from degradation, or suspension. This last 
 punishment is inflicted when a Minister has been tried and 
 convicted. But there are times when it is'desired to get rid 
 of the Minister, to sever the relation between him and the 
 Parish, and yet there may be no charges to make against 
 him, for which he can be tried and convicted. It is for such 
 cases at times when the Parish wishes to dismiss the Minis¬ 
 ter, and yet may not have any charge or crime to impute to 
 him, that the canon was. enacted. In this case the Vestry 
 has acted within its power, has proceeded according to the 
 canon, and obtained the concurrence of the Bishop—the 
 Ecclesiastical authority. 
 
 Dr. Batterson has stated in his affidavit, that no terms as 
 to the time of his engagement were stipulated between him 
 and the Vestry. The rule of law in cases where the parties 
 have not fixed upon any time for the duration of the con¬ 
 tract between them, is that either party may dissolve it at 
 pleasure. This was said by the Supreme Court, in Coffin v. 
 Landis , 10 Wright, 426, and Peacock v. Cummings , same 
 book, page 434. Who then dissolves the relation ? Either 
 party may do it. Here the Vestry may do it. A Parish, 
 Church or congregation only acts by its Vestry. The Vestry 
 elect the delegates to the General Convention, and if they 
 dismiss without the Ecclesiastical concurrence, the punish¬ 
 ment therefor falls upon them. They are deprived of repre¬ 
 sentation in the Convention. 
 
 The resolutions of dismissal were introduced and passed 
 regularly, notwithstanding the refusal of Dr. Batterson, to 
 put the question to them. Mr. Murray Hoffman in his work 
 
 5 
 
54 
 
 on u Ecclesiastical Law in the State of Yew York,” at page 
 78, says, on this subject of the Lector’s right to decline to 
 put questions to a meeting of the Vestry: “ Questions have 
 also, in my experience, arisen as to the extent of the duty of 
 a Rector, to put questions for the decision of the Vestry. 
 There can be no doubt of his obligation to do this, in every 
 case of a proposition properly within the province of the 
 Vestry to act upon. It is, on the other side, clear, that he is 
 not bound to put questions or resolutions tending to censure 
 or criminate himself. When acts or resolutions are proposed 
 hostile to the Rector, as under the canon respecting a disso¬ 
 lution of the connection, or where a Vestry is authorized to 
 present, the body acts of necessity as Warden and Vestrymen, 
 not as the strict integral body.” 
 
 In this case the resolutions were properly put and voted 
 for; the dismission was carried; the Ecclesiastical authority 
 has concurred, thereby making the dismissal complete, and 
 the injunction ought not to continue. I ask that it be 
 dissolved. 
 
 Mr. Olmsted, on the same side, said— 
 
 The Rector is not a member of the Corporation, nor a 
 member of the Vestry. The Corporation owns the Church 
 property, and it is composed of those who own pews. The 
 Vestry is elected by the pew-holders and renters. But the 
 owners of pews are the only ones really interested in the 
 Church, and of these all except one are with the Vestry. The 
 renters of the pews who favor the clergy have no pecuniary 
 interest in this suit; they own nothing of the Church. If 
 the property were sold, to whom would the proceeds go ? Yot 
 to a pew renter, nor a communicant, nor a member of the 
 congregation. Yone of these persons, therefore, have an in¬ 
 terest which gives them a right to an injunction. Even if 
 they had, the Vestry as the representative body has au¬ 
 thority to act independently of them, even against their 
 wishes. The Supreme Court of this State in the case of 
 Dana v. The Bank of the United States , 5 Watts & Sergeant, 
 page 223, held that the directors of the Bank had power to 
 make an assignment of its assets, notwithstanding the objec- 
 
55 
 
 tion and protest of the stockholders. The same principle of 
 law applied here would sustain the action of the Vestry as 
 against the congregation, even if the latter had any property 
 rights. 
 
 The Vestry, by Article V. of the Charter, is composed of 
 twelve members of the Church, but the Eector is not a mem¬ 
 ber of the Vestry. He presides at the meetings of the Vestry 
 by courtesy, not by right. He is not an integral part of the 
 body. In relation to the rights of the Minister and congre¬ 
 gation, in the absence of express provisions in the canons, the 
 civil law will govern, and the principles of law concerning 
 employer and employe apply in all their force. The employer 
 can discharge at any time unless there be a special contract, 
 and the employe can leave whenever he chooses to. This is 
 the law in this State according to the cases of Coffin v. Lan¬ 
 dis, and Peacock v. Chambers , already referred to. Any 
 other doctrine would compel a Church to sustain a Minister 
 when he is totally incompetent to perform his duties. He 
 might become old, infirm, sick and unable to serve in the 
 Church; and yet if the plaintiffs’ views are correct, such 
 Minister could not be dismissed, but must remain in and be 
 supported by his Church. This would be a great hardship. 
 
 But there is a canon on this subject which authorizes the 
 dismissal of Ministers. It is Canon 4, Title II., and it pre¬ 
 scribes a way by which the Parish or Church may dismiss a 
 Minister. All that they have to do is to get the Ecclesias¬ 
 tical authority to concur with them and the dismissal is com¬ 
 plete. That has been done here. In the Office for the Insti¬ 
 tution of Ministers, in the Prayer Book, the settlement of ail 
 questions between the Minister and congregation concerning 
 a separation is reserved to the Bishop and Presbyters. TCe 
 find in all the law of the Church on the subject of the disso¬ 
 lution of the pastoral relation, the words Parish, Church, cure 
 and congregation used as synonyms of each other. The 
 power of dismissal resting in either of these, is to be exercised 
 by its representative, the Vestry. 
 
 Finally the injunction asked for ought to be refused at 
 this stage of the cause, because it is intended thereby to com¬ 
 pel the Vestry to restore the Ministers to the places from 
 
 \ 
 
which they have been dismissed. It is mandatory upon them, 
 and a mandatory injunction will never be granted until final 
 hearing. This was decided by the Supreme Court last win¬ 
 ter, in the case of Audenreid v. Reading Railroad Co ., re¬ 
 ported in the Legal Intelligencer of January 13th, 1871. 
 The plaintiffs here ask for a preliminary injunction which 
 would be mandatory upon the defendants, and that should 
 he refused. 
 
 Mr. Price, for the complainants, in conclusion said— 
 
 Dr. Batterson and Dr. Stewart are not here of their own 
 choice or by their own act. They are only the representa¬ 
 tives of their order; and they owe it to that order, that a 
 wrong like that complained of here, should not go unre¬ 
 sented. Arbitration would have been accepted gladly by 
 them ; indeed there have been frequent efforts made by them, 
 not only to settle, but to avert such difficulties as now beset 
 them. If scandal is brought upon the Church it is not by 
 them; others must bear the odium. The defendants have 
 given the cause for a resort to the Courts, and the blame for 
 bringing this case into Court at all lies upon them. They 
 are the wrongdoers, and Drs. Batterson and Stewart are 
 compelled for their own sake, and for the sake of their order, 
 to come here for protection. They seek no revenge, no gain, 
 nothing but protection. 
 
 It has been conceded that this Court has jurisdiction to 
 inquire whether the proceedings for the dismissal of the 
 Ministers have been in accordance with the canons and dis¬ 
 cipline of the Protestant Episcopal Church. It can readily 
 be shown that the proceedings now complained of have no 
 warrant in the law of the Church. 
 
 It is proper to inquire—are these parties, before the 
 Court as complainants, entitled to invoke that jurisdiction 
 for the object set forth in the bill? The affidavits show that 
 there are here complaining of the action of the Vestry, mem¬ 
 bers of the Corporation ; members of the Church; holders of 
 pews and sittings ; the larger part of the congregation ; and 
 the Rector and Assistant Minister. What interest is there, 
 of any possible importance in the case, remaining unrepre- 
 
57 
 
 sented? Fewer parties would liave been sufficient for the 
 purposes of the case; hut.it is no valid ground of objection 
 that so many, and representatives of all aspects of the rela¬ 
 tion of pastor and people, have manifested their deep interest 
 in the result of this hearing by becoming parties to it. They 
 are proper parties complaining, and that is enough. It is 
 not necessary to look farther than the preamble to the Char¬ 
 ter of St. Clement’s Church for them. The preamble desig¬ 
 nates for whom the incorporation was asked, and the Charter 
 is the evidence that they obtained it. Pew-owners will be 
 found to be of no greater importance under the Charter, than 
 other members of the congregation who hold their pews by 
 renting them. Both are alike members of the Corporation, 
 and entitled to appear as such, and resist the threatened in¬ 
 jury so far as it may affect the Corporation merely. 
 
 The true relation to be regarded now, is that of Rector and 
 congregation; that which was established after Dr. Batter- 
 son had been elected by the Vestry and accepted their call; 
 when he was instituted or settled as the Rector of St. Clement’s. 
 The relation sought to be dissolved by a summary dismissal 
 of the Ministers, is an ecclesiastical one; and the aid of the 
 Bishop has been sought, showing that the defendants so re¬ 
 garded it. They evidently did not consider it safe to rely 
 upon what has been set up in the argument for the defend¬ 
 ants here, that there is a mere civil contract for hiring, made 
 between Dr. Batterson aud the Vestry, liable to be dissolved 
 at the pleasure of either. They would not require the assist¬ 
 ance of the Bishop to dissolve such a compact as that. But 
 the true relation, after Dr. Batterson had become Rector, 
 and Dr. Stewart, Assistant Minister, was ecclesiastical, as it 
 appears by the canons and by the Office of Institution in the 
 Prayer Book, and therefore can be dissolved only in one of 
 the ways provided by the ecclesiastical law of that Church. 
 The attempt to dissolve it in some other way is a grievance 
 to the congregation, and they are therefore proper parties to 
 the bill of complaint. 
 
 The Rector and Assistant Minister are also parties to the 
 record. Rone more deeply deplore the necessity which brings 
 them into a civil Court than they do. But the defendants, 
 
53 
 
 by their conduct, have compelled them to he here. They 
 have no alternative but to submit to the wrong, or appeal to 
 a civil Court for justice. These Presbyters ought to have 
 been able to go to their Bishop for protection, for a hearing 
 at least; but as has been said by counsel for the defendants 
 in the course of their argument, the Bishop has already con¬ 
 sented to what the Vestry did. The announcement is heard 
 with surprise and regret. The Bishop was not made a party 
 defendant in this case, only because it was believed that he 
 would not consent to such a wrong as was threatened. It 
 was not believed that he would condemn any one of the 
 Ministers in his Diocese upon ex parte presentment, or with¬ 
 out a hearing; and hence the Court was not asked to enjoin 
 him also. It will be seen now, that these Ministers find in a 
 civil Court their only recourse against injustice. Their con¬ 
 gregation, except the nineteen persons who voted for the 
 acting Vestry on Easter Monday last, insist that they shall 
 resist the unwarranted action of that Vestry. It is their 
 duty to the Episcopal Church, and to themselves; and it is 
 their duty to every brother Presbyter of that Church, that 
 they should l-esist such action, and as far as they can, prevent 
 its passing into a precedent, upon which similiar mischief may 
 be done and justified hereafter. It has been shown already, 
 by my colleague, that the Keetor is an integral part of a 
 Church corporation, and that he has rights which make him 
 a proper party to such a suit as this. But more than that, 
 he is the direct object of the threatened wrong. 
 
 What is the status of the defendants who undertake to 
 dismiss the Rector and Assistant Minister of St. Clement’s? 
 They are the Vestrymen de facto only. An officer de facto 
 of a private Corporation, as St. Clement’s is, may do and 
 perform sundry acts that will bind the Corporation ; but 
 it is questionable whether his powers are as ample as those of 
 an officer de jure. Lord Ellenborough, in The King v. The 
 Corporation of Bedford Level , 6 East, 368, defined such an 
 officer to be one who has the reputation of being the officer 
 he assumes to be, and yet is not a good officer in point of 
 law. If the right of a public officer, as a sheriff, or mayor 
 of a city, to hold his office is contested, the incumbent 
 
59 
 
 may discharge ail official duties, but that is upon the ground 
 of a public necessity. It is admitted that a de facto officer 
 of a private corporation, may perform acts required to pre¬ 
 serve the corporation; he may bind the corporation to one 
 who has paid a valuable consideration for the corporate act; 
 he may hind the corporation to third persons, and do some 
 other acts which shall be binding. He may sue for and 
 recover an annual subscription to support the Church, as in 
 the case cited from 6th Cowen. But it is denied that an 
 officer de facto may so act as to impair or destroy the useful¬ 
 ness of the corporation. The officer whose right is entire 
 and unquestioned, is hut the agent of the body. The affi¬ 
 davits in this case shows that out of about ninety pew- 
 holders, fifty-eight are opposed to the action of the Vestry ; 
 out of three hundred and one communicants of St. Clement’s, 
 two hundred and seven are also opposed; and we do not 
 know, and have not heard of any in favor of the Vestry, 
 other than the nineteen who voted for them. It is in¬ 
 cumbent on those who have undertaken so serious a business 
 as this dismissal, against the will and desire of the congrega¬ 
 tion, to show a good and sufficient warrant for it. What 
 warrant have they shown ? It has been urged upon the 
 mercenary footing of a contract of hiring, alleged to be made 
 between the Vestry and the Ministers, for no definite period, 
 and therefore liable to be terminated at the will and pleasure 
 of either party to it; and that is urged as decisive of the 
 whole question, as though such a contract were the only 
 bond between a Rector and his congregation in the Episcopal 
 Church. It might be instructive to know, whether the Bishop 
 concurred in the Vestry’s resolutions of dismissal, upon such 
 gi’ounds. It is not probable that he did. It is more proba¬ 
 ble that he would he as much surprised to learn that the 
 dismissal is sought to be justified in that manner, as many 
 others were surprised to learn that he had concurred in the 
 resolutions to bring it about. But no such thing exists, in 
 fact, as a contract between the Vestry and the Rector of St. 
 Clement’s. 
 
 It was said also, that the Vestry of St. Clement’s have, by 
 the Charter, an implied power to dismiss the Ministers, 
 
GO 
 
 because the Charter gives to the Vestry express power to 
 elect them. The answer is an obvious one. The powers of 
 election and dismissal are dissimilar ; and if a special delega¬ 
 tion of power to the Vestry was necessary to enable them to 
 elect a Rector and Assistant, it would require an express 
 power to enable the Vestry to dismiss them; and that power 
 cannot he found in the Charter. There are reasons arising 
 from the Ecclesiastical relation between a Rector and his 
 congregation, under the laws and discipline of the Church, 
 which would make it improper to introduce such power into 
 a charter. An alleged cause of dismissal is, under the Eccle¬ 
 siastical cognizance, and must he inquired into by a tribunal 
 provided by the canons of the Church. 
 
 Canon 4 of 1804, respecting differences between Ministers 
 and their congregations, not now in force, has been referred 
 to as showing what has been the sense of the Church on this 
 subject. It provided that in cases of controversy between 
 rectors of churches and the Vestry or congregations of such 
 churches which could not be settled by themselves, either 
 party might make application to the Bishop. And if it ap¬ 
 peared to the Bishop and his Presbyters, that the controversy 
 had proceeded to such lengths as to preclude all hope of its 
 favorable termination, and that a dissolution of the connec¬ 
 tion was indispensably necessary to restore the peace and pro¬ 
 mote the prosperity of the Church, the Bishop and his Pres¬ 
 byters were to recommend the Minister to relinquish his 
 charge, on such condition as should appear reasonable and 
 proper to the Bishop and his Presbyters. If the Rector re¬ 
 fused to comply, then the Bishop and his Presbyters were to 
 proceed according to the canons of the Church, to suspend 
 him from the exercise of ministerial duties within that Dio¬ 
 cese ; and if the congregation or Vestry refused compliance 
 with the recommendation of the Bishop and his Presbyters, 
 they were to be prohibited from sitting in the Convention. 
 
 For the case of disagreement merely, there was a well- 
 known tribunal, the Bishop and his Presbyters, a hearing of 
 both parties, and a suitable recommendation, in-advance of 
 action under other canons. There has always been in the 
 Episcopal Church a negation of ex parte proceedings, and of ' 
 
61 
 
 arbitrary power. The sense of the Church on that subject 
 was expressed in the first Pastoral Letter of the House of 
 Bishops in the General Convention of 1808, over the signa¬ 
 ture of Bishop White, as follows: 
 
 “ Prom worship we proceed to discipline. And here we 
 wish our clerical and our lay brethren to be aware, as, on the 
 one hand of the responsibility under which we lie, so, on the 
 other, of the caution which justice and impartiality require. 
 The Church has made provisions for the degradation of un¬ 
 worthy clergymen. It is for us to suppose that there are 
 none of that description, until the contrary is made known 
 to us in our respective places, in the manner which the 
 canons have prescribed. And if the contrary to what we 
 wish, is in any instance to be found, it lies on you, our cleri¬ 
 cal and lay brethren, to present such faulty conduct, although 
 with due regard to proof; and, above all, in a temper which 
 shows the impelling motive to be the glory of God, and the 
 sanctity of the reputation of his Church. 
 
 “ While we are not conscious of any bias, which, under an 
 official call, would prevent the conscientious discharge of 
 duty, we wish to be explicit in making known to all, we 
 think it due to God and to his Church, to avoid whatever 
 may sanction assumed power, however desirable the end to 
 which it may be directed. We have at least weighty reasons 
 to restrain us from judging without inquiry, and from cen¬ 
 suring without evidence of crime. These are ends to which 
 men of impetuous spirits -would sometimes draw. But we 
 would rather subject ourselves to the charge of indifference, 
 however little merited, than be the means of establishing 
 precedents, giving to slander an advantage, against which no 
 innocence can be a shield ; and leaving to no man a security 
 either of interest or of reputation. Although we have no 
 reason to complain that sentiments in contrariety to these 
 prevail among us to any considerable extent; yet we freely 
 deliver our sentiments on the subject, in order to give us au 
 opportunity of calling on all wise and good men—and we 
 shall not call on them in vain—to aid us in resisting, wher- 
 ever it may appear, that mischievous spirit which confounds 
 right and wrong, in judging of the characters and rights of 
 others.” 
 
 •s 
 
62 
 
 The remaining point urged by the defendants is, that 
 Canon 4, Title 2, of the General Canons, justifies a dissolu¬ 
 tion of the pastoral connection, if the Bishop concurs in 
 making it. This brings forward the ecclesiastical aspect of 
 the case, and presents the true point of controversy. 
 
 We maintain that when a Minister has been elected to the 
 Rectorship of a Church, and is instituted or settled as such 
 Rector, an ecclesiastical or sacerdotal connection is established 
 between him and his congregation, which can he dissolved 
 only by mutual consent, or for cause duly appearing. The 
 connection is meant to be equally permanent, in this country, 
 whether the Rector is formally instituted or not. 
 
 The well known course of proceeding in the Church of 
 England is the presentation of the Minister who is to fill a 
 vacancy; and after examination, his institution by the Bishop; 
 then the ceremony of induction into the Church and Parish 
 in which he is to serve. When once inducted, the incumbent 
 could be removed only for some canonical offence committed 
 by him; and not then, until a trial and condemnation was 
 had. The pioneers of the Episcopal Church in this country, 
 brought a like discipline with them ; and the spirit of it has 
 pervaded the legislation and practice of that Church, and 
 still remains. When a Minister has been elected to a Rector¬ 
 ship, and has accepted, and the office of institution is to be 
 performed, the Bishop's Letter of Institution runs thus: 
 
 “ And as the Lord hath ordained that they who serve at 
 the altar should live of the things belonging to the altar, so 
 we authorize you to claim and enjoy all the accustomed tem¬ 
 poralities appertaining to your cure, until some urgent reason 
 or reasons occasion a wish in you, or in the congregation 
 committed to your charge, to bring about a separation and 
 dissolution of all sacerdotal relation between you and them ; 
 of all which you will give us due notice; and in case of any 
 difference between you and your congregation, as to a sepa¬ 
 ration and dissolution of all sacerdotal connection between 
 you and them, we, your Bishop, with the advice of our 
 Presbyters, are to be the ultimate arbiter and judge.” 
 
 Here is another exclusion of assumed power, and that in 
 an office of the Church which reaches hack to the Reforma- 
 
G3 
 
 fcion, ancl probably beyond it; for it does not appear that the 
 Institution Office was changed at the time of the Reforma¬ 
 tion, when other offices were changed. The desire for a 
 separation must be founded on a “ reason or reasonsthe 
 Bishop is to be notified of it; he is to proceed therein with 
 the advice of his Presbyters; and that tribunal is to judge 
 of the reasons alleged. But if it be conceded that the Bishop 
 alone is to be “ the ultimate arbiter and judge,” is he to judge 
 and determine without hearing and investigation, or, what 
 is worse, upon hearing one side only? Every man’s sense 
 of justice revolts at that idea. 
 
 As reference has been made on the other side to a canon 
 not now in force, to show what has been the expression of 
 the Episcopal Church regarding the tenure by which a Rector 
 holds his place, reference may also be made to the 29th Gen¬ 
 eral Canon of 1808, concerning the election and institution 
 of Ministers into Parishes or Churches. That canon con¬ 
 cluded thus: 
 
 “ But it is to be understood that this Church designs not 
 to express any approbation of any laws or usages which make 
 the station of a Minister dependant on anything else than 
 his own soundness in the faith, or worthy conduct. On the 
 contrary, the Church trusts that every regulation in contra¬ 
 riety to this, will be in due time reconsidered, and that there 
 will be removed all hindrances to such reasonable discipline 
 as appears to have belonged to the churches of the most ac¬ 
 knowledged orthodoxy and respectability.” 
 
 Again, Canon 1 of 1795, required every Bishop to visit the 
 Churches within his Diocese at least once in three years ; but 
 no State was to elect a Bishop unless there be at least six 
 Presbyters residing and officiating therein. By Canon 3 of 
 1799, it was provided that no clergyman employed by the 
 year, or for a limited time, shall be considered as a regularly 
 officiating and resident Minister of the Church in any State, 
 for the purpose of electing a Bishop under the Canon of 1795. 
 
 The canons have been moulded and remoulded from time 
 to time, by the General Conventions of the Episcopal Church, 
 but cardinal rules of discipline have not been changed. The 
 Office of Institution of Ministers, which asserts the relation 
 
64 
 
 between the Rector and his congregation, remains the same 
 to this day, and the obligation to investigate before a sentence 
 of dismissal is sealed, is as binding as ever before. The part 
 of Canon 4, relied on by the defendants, is 
 
 “In case a Minister who has been regularly instituted or 
 settled in a Parish or Church, be dismissed by such Parish or 
 Church without the concurrence of the Episcopal authority 
 of the Diocese, the Vestry or congregation of such Parish or 
 Church shall have no right to a representation in the Con¬ 
 vention of the Diocese, until they have made such satisfac¬ 
 tion as the Convention may require; but the Minister thus 
 dismissed shall retain his right to a seat in the Convention, 
 subject to the approval of the Ecclesiastical authority of the 
 Diocese.” 
 
 It is wrong, then, for a congregation to dismiss their 
 settled Minister without the concurrence of the Bishop, and 
 if such thing is done, the congregation is to be punished for 
 it, by a loss of representation in the Diocesan Convention. 
 The canon does not concede that a Vestry can dismiss under 
 any circumstances. Does the prohibition of a dismissal 
 without the concurrence of the Bishop, necessai’ily imply 
 that it may be done with his arbitrary concurrence, and 
 without more than that? 
 
 In what case may the Bishop concur in dismissal by the 
 Parish or Church, in order to render it effective? Surely not 
 when it is sought without reason, or for no cause shown. 
 The second section of the same Canon 4, refers to the case in 
 which the Bishop intervenes, as one of “ regular and canonical 
 dissolution between a Minister and bis congregation,” and 
 provides that it shall be recorded as such. By necessary 
 implication, it would appear that the concurrence is to be 
 given in some canonical way. This becomes even more 
 apparent when it is considered that the canons are the source 
 of the Bishop’s authority to deal with the Ministers in his 
 Diocese, and that he is not the custodian of any arbitrary 
 power. Whatever may come of the assumed power, which 
 the House of Bishops rebuked in their Pastoral Letter, is 
 evil. A concurrence not founded upon some canon, would 
 be unauthorized, and therefore a concurrence to no purpose. 
 
65 
 
 Again, this matter of dismissal is in the nature of a 
 sentence and penalty. It involves the salary of the Minister, 
 which is his right and his property, and it involves his repu¬ 
 tation also, both of which are objects of legal protection. It 
 appears by the affidavits read, that the sentence and penalty 
 now threatened to be imposed, have been made up and re¬ 
 solved upon without accusation of the Ministers of St. Clem¬ 
 ent’s, without notice to them, or hearing; and, so far as any¬ 
 thing appears in this case, Avithout any assigned reason or 
 cause. In this manner the injury to reputation is to come, 
 for no Minister can be thus summarily dismissed, without 
 serious detriment to his reputation. How it is argued upon 
 the other side, that all this may be done, and that the fourth 
 General Canon authorizes it. The complainants deny that 
 the canon, fairly interpreted as one of a body of canons for 
 the gOA 7 ernment of the Church, does authorize such a course 
 of procedure, nevertheless if such be its true intent and 
 meaning, then the canon is in conflict with the law of the 
 land, and must fall before it. 
 
 The construction to be given to it, should harmonize it 
 with the rest of the canons, and with the known discipline 
 of the Church. It should uot be regarded as purposely in 
 conflict Avith general principles of action, which have run 
 through all prior legislation of the Church on that subject, 
 if it be possible to escape such view of it. That is possible, 
 if the Bishop’s concurrence is given or withheld Avith due 
 regard to the provisions of other canons; and Avith due 
 regard to Avhat is contained in the Office of Institution, 
 Avhich is above the canons. Is this case one of difference 
 only, betAveen the Ministers and their congregation ? Then 
 let it be judged by the Bishop and his council, whether the 
 council be composed of his Presbyters or the Standing Com¬ 
 mittee of the Diocese. Is the case founded upon some 
 accusing complaint presented by the Vestry to the Bishop? 
 Ample provision is made for that also. If it be an accu¬ 
 sation of crime or immorality; or of holding and teaching 
 publicly or privately, any doctrine contrary to that held by 
 the Protestant Episcopal Church in the United States; or of 
 violation of the Constitution or Canons of the Church ; or of 
 
66 
 
 any act which involves a breach of ordination vows; then 
 the General Canon 2, under Title 2, points out that the 
 Minister is to be presented and tried for either of those 
 offences; and if found guilty, (not otherwise,) he shall be 
 admonished, suspended, or degraded, according to the Canons 
 of the Diocese in which the trial takes place. Almost every 
 supposable case of sufficient importance to justify official 
 action, is thus specifically provided for in one way or 
 another. There is no need to delve into the ambiguous 
 language of the fourth Canon for an implied authority, to 
 put a sentence and punishment in advance of investigation 
 or trial, and thus reverse the orderly course of proceedings 
 for which the canons have amply provided. Such a method 
 of proceeding savors too much of looking up an excuse for 
 assumption of power, which the Church abhors. 
 
 See with what order and fairness accusations are to be 
 proceeded with, under the first Canon of the Episcopal 
 Church in the Diocese of Pennsylvania. The presentment 
 shall be in writing, specifying with clearness and certainty, 
 as to time, place and circumstance, the offence charged. It 
 must be made to the Bishop by the Convention, or by the 
 Warden or Vestry of the Parish to which the accused 
 belongs, or by three Presbyters of the Diocese; but the 
 accusers must pledge themselves to make good the accusa¬ 
 tion ; and furnish in writing, the names of the witnesses and 
 the purport of their evidence. Then the Bishop shall cause 
 a copy of the presentment to be served upon the accused, 
 and lie shall be summoned to show cause at a certain day 
 and place, why a commissary should not be appointed to 
 take and report the testimony on both sides; but either 
 before or after the appointment of a commissary, or after a 
 report by him, the Bishop shall have power to dismiss the 
 presentment, and declare the accused party discharged, if 
 the accusation contained in it appears to him an insufficient 
 cause of presentment in itself, or to be clearly unsupported 
 by the evidence. The accused shall have fifteen days’ notice 
 of the proceeding before the commissary, who is to examine 
 the witnesses on both sides and take their testimony in 
 writing. Such is the course of preliminary examination, 
 
67 
 
 with a view to ascertain whether the accusation shall be 
 dismissed, or submitted to a Court of Presbyters for formal 
 trial; and it is only after that formal trial and conviction 
 that the Bishop is at liberty, under the fifth of the State 
 Canons, to admonish, to suspend a Minister, or to degrade 
 him from the ministry, according to the character and cir¬ 
 cumstances of his offence. But it is said on the other side, 
 that the dismissal of a Minister is neither admonition, nor 
 suspension, nor degradation. It is worse than the first, hut 
 not so bad as the last, which is the penalty in extreme cases 
 only. Still it is a penalty, and more damaging to the repu¬ 
 tation of a clergyman than admonition would he ; and there 
 must he canonical authority to warrant the infliction of a 
 penalty of any degree. The canonical authority should be 
 found in something better than an implication sought to be 
 derived from ambiguous language of a prohibitory canon, 
 which is not ambiguous however, in relation to the thing 
 prohibited, and to which the provisions of the canon should 
 he confined. 
 
 The defendants have not been able to produce a case, or 
 any writer upon the law of the Episcopal Church, coinciding 
 with their view. On the contrary, the complainants, have 
 furnished the views of such authorities as Bishop White, 
 Hoffman, and Dr. Hawks, who do not sustain the alleged 
 right of a Bishop and Vestry to dismiss a Sector summarily. 
 But if it be a fair construction of the fourth General Canon, 
 that a Rector shall not he dismissed without the concurrence 
 of the Bishop, therefore he may he dismissed with such con¬ 
 currence; still it is insisted that the Bishop’s concurrence is 
 not to he yielded arbitrarily, hut only upon proper cause 
 shown in some orderly manner, in which both sides shall be 
 heard and opportunity for explanation given, and then only 
 if the circumstances of the case are found to warrant the 
 dismissal. It must not he forgotten that Presbyters of the 
 Episcopal Church have rights under the canons of their 
 Church, and that they have civil rights also, and that both 
 must be regarded. But we are asked what is to be done 
 when a Minister becomes unable, or refuses without good 
 cause to perform his duties and neglects them. Canon 12 of 
 
68 
 
 Title 1, § vi. [3] then comes into force. By it the Bishop or 
 a Standing Committee, or other duly authorized persons, shall 
 have power to inquire into the matter, and may open the 
 doors of the Church to some other Minister. But hy para¬ 
 graph [4] of this same canon, this shall not affect any legal 
 rights of property of any Parish: that is the Minister’s 
 rights when he has become feeble and unable to serve. He 
 has his rights as well as the Parish, and they will always as 
 they have heretofore, accommodate them to each other. 
 
 The opinion of the Court was delivered May 2Ttli, 1871, by 
 
 Ludlow, J. We approach the consideration of this case 
 with an oppressive sense of the responsibility cast upon us. 
 We see in it questions of real difficulty, involving the con¬ 
 sideration not onl}’ of the civil law, but of the canon law of 
 a body of influential and respected Christians ; and a question 
 also arises, upon the proper legal solution of which depends 
 the dearest rights of every Presbyter of “ The Protestant 
 Episcopal Church” in this Diocese, and probably in this 
 country. We shall endeavor to solve these questions. We 
 mean, if possible, to he right in our conclusions ; if we should 
 fall into error, it is a satisfaction to know that it may be 
 corrected elsewhere. 
 
 The case presented is simply this. An incorporated body 
 exists in this country known as “ The Kector, Church War¬ 
 dens and Vestrymen of St. Clement’s Church, in the City of 
 Philadelphia.” By the 5th Article of the Constitution, 
 “ the election of the Vestry shall be made every year on 
 Easter Monday.” An election took place this year accord¬ 
 ing to the Charter, at the time therein specified. 
 
 On the 18th of April, 1871, a suggestion for a writ of quo 
 warranto was filed in the Supreme Court of the State. That 
 writ was allowed by one of the justices of that Court; and it 
 is now pending and is undetermined. The object of this writ 
 was to test the legality of the election of the defendants in 
 this bill, as the Vestrymen of St. Clement’s Church. On the 
 3d day of May, 1871, a meeting of certain persons, claiming 
 to be the Vestry of the Church, was held, whereupon resolu¬ 
 tions were adopted dismissing the Rector and Assistant Min- 
 
69 
 
 ister (with the concurrence of the ecclesiastical authority of 
 the Diocese) from their offices. In the affidavit of one of the 
 defendants, it appears that on the fourth day of May, 1871, 
 “ the Bight Rev. William Bacon Stevens, Bishop of the 
 Diocese of Pennsylvania, concurred in the same.” The letter 
 or order of concurrence has not been submitted to the Court, 
 and it is not pretended that the Rector or his assistants ever 
 had notice from the Bishop of the matter submitted to him, 
 or ever had a hearing or trial, or opportunity for explanation. 
 
 The contract between the Vestry and the Rector and his 
 Assistant contained no special terms as to the tenure of office. 
 It is admitted by the affidavits tiled on behalf of the defend¬ 
 ants, that of the plaintiffs, all except three, to wit, the Rector, 
 his Assistant, and Mr. Lewis Gr. Bull, are renters of pews and 
 sittings in said Church. It is denied that they (the plaintiffs) 
 or either of them, own or have ever owned a pew, though 
 some are members of the Church, entitled to vote. We are 
 asked to give relief in three forms. 
 
 1st. To adjudge and decree that plaintiffs are members of 
 the Corporation, etc. 
 
 2d. To restrain the defendants from dissolving the con- 
 nection between the Rector and his Assistant and the congre- 
 tion, and from intermeddling or taking any action therein as 
 a Vestry or Vestrymen. 
 
 3d. To restrain the defendants, their agents or servants, 
 from interfering in any way with the Rector and his Assist¬ 
 ant in the exercise of their respective offices until a regular 
 and canonical dissolution takes place. 
 
 This brief statement of the facts of the case (about which 
 there seems to be no dispute) presents for our consideration 
 three important questions of law, in disposing of which we 
 think we shall be able to embrace all points presented, and 
 thus decide this cause. 
 
 1st. Has a civil tribunal, and especially a Court of Equity, 
 jurisdiction, and if so, are these proper parties before the 
 Court ? 
 
 2d. Can a Vestry de facto act, supposing such action to be 
 in other respects canonical ? 
 
 3d. Can a Rector, without his consent, be dismissed under 
 
 6 
 
and by virtue of tbe Charter and By-laws of this Corporation, 
 or by virtue of the canonical laws of the Protestaut Episco¬ 
 pal Church in the Diocese of Pennsylvania, or of the Pro¬ 
 testant Episcopal Church of the United States? 
 
 Tbe first proposition can easily be maintained. It has 
 been frequently decided that the civil tribunals will interfere 
 in matters connected with disputes or contests arisiug out of 
 things ecclesiastical, only, however, in so far as it is neces¬ 
 sary to ascertain if the governing body has exceeded its 
 power, or, in other words, has acted within the scope of its 
 authority. The learned counsel upon both sides of this 
 cause, during the argument, admitted this proposition, and 
 in Pennsylvania our recent cases, McGinnis v. Watson , 5 
 Wright, 9, and Sutter v. Trustees, 6 Wright, 503, were de¬ 
 cided upon principles which preclude any further discussion 
 of the subject. 
 
 If a civil tribunal can thus take jurisdiction, a Court ot 
 Equity, under the facts of this case, and with the parties 
 now before the Court, ought certainly to do so. While 
 it is quite clear that we look only at the civil nature of the 
 contract entered into between the Rector and the con°;re°;a- 
 tion, in a case involving a direct breach of contract, it is 
 also certain that the very contract between the parties may 
 give birth to rights, which, being violated, can onty be 
 maintained in a Court of Equity. The general principle 
 contended for b} 7 the counsel for defendants, to wit, that 
 where in an agreement for service no time is fixed, either 
 party may dissolve the contract, (see Coffin v. Landis , 10 
 Wright, 42G ; Kirk v. Hartman , 13 P. F. Smith, p. 97,) is not 
 denied, nor do we doubt the right of a Rector to bring an 
 action at law for damages, against those who prevent him 
 from entering the church building. That doctrine was 
 clearly maintained by the Supreme Court of New Jersey, in 
 a learned opinion delivered in Lynd v. Menzies , by Beasley, 
 C. J., to be found reported in the American Law Register, 
 (new series,) Vol. viii., p. 94. All we now decide is, that with 
 the facts before us, a suit at law would be useless, and that 
 the plaintiffs would be remediless. 
 
 Under and by virtue of the canon laws of the Protestant 
 
71 
 
 Episcopal Church in the United States, a Rector, and such 
 of his parishioners as are members of the Church, and have 
 rented pews and sittings, who have made profession of its 
 faith, and submitted to its government, have rights which 
 are to be respected, (see Cowmyer v. United German Church , 2 
 Sandf. Ch. 186,) and which, being violated, cannot be main¬ 
 tained by an action for damages merely. The Rector has not 
 only a claim for the salary, which by a contract is to be paid 
 to him, but he has also, under the charter of incorporation, 
 those rights guaranteed by canonical law, which the peti¬ 
 tioners desired to obtain when they “ associated for the pur¬ 
 pose of worshipping Almighty God, according to the faith and 
 discipline of the Protestant Episcopal Church in the United 
 States of America.” The Charter being granted, the Rector 
 and his parishioners, together with the Vestry, held rights 
 under and by virtue of that fundamental law, which in terms 
 “ adopts the constitution, canons, doctrine, discipline, and 
 worship of the Protestant Episcopal Church” in this Diocese, 
 and in the United States, and acknowledges their authority. 
 
 Mutual rights and obligations were thereupon created, as 
 sacred as any known to Courts of Equity. If these rights 
 cannot be maintained in this Court, remediless injury may 
 be inflicted upon the plaintiffs in this bill. 
 
 I care not now to discuss the exact legal bearing of the 
 Office of Institution. It is enough for my present purpose to 
 know, that when, as by the rubric directed, the senior "War¬ 
 den, (or the member of the Vestry,) delivered the keys of 
 the Church to the new incumbent, he said, “ In the name and 
 
 on behalf of-- Parish, I do receive and acknowledge 
 
 you, the Rev. A. B., as Priest and Rector (or Assistant) of the 
 same.” 
 
 By Article 8 of the Constitution of the Church, among 
 other things, the “ Administration of the Sacraments and 
 other Rites and Ceremonies of the Church,” established by 
 the General Conventions, shall be used in the Protestant 
 Episcopal Churches. By virtue of the civil contract and the 
 canon of the Church, a person becomes canonically the Rec¬ 
 tor. It is true he may or may not receive a salary; he may 
 or may not be an integral part of the corporation ; by the 
 
canonical law lie lias the right, as Rector of a certain Parish, 
 to perform ecclesiastical duties there in that place, to wit, 
 the Church building ; there he has the right to administer the 
 sacraments ; there to solemnize the marriage service; there to 
 perform the duties incident to the public worship of Almighty 
 God. 
 
 More than this, among other rights, a canonically settled 
 Rector has a right to prohibit another Minister of the Church 
 from officiating in his Parish, or within his parochial cure, 
 without his consent. Title 1, Canon 12, sect. 6 [1] of Digest 
 of the Canons. I quite concur with Chief Justice Beasley in 
 the remark made by him in the case heretofore cited, when 
 he said, “Xo matter in whom the title may reside, if the 
 congregation has the use of the building, the Rector must, of 
 necessity, have the right to partake in such useand I may 
 add, not only that he may have possession of the building, 
 hut that he may of right perform his duties there, in that 
 place, and not elsewhere, unless at his own option. If these 
 are the rights of the Rector, any parishioner who is a renter 
 of a pew and constant attendant at the Church, who in 
 good faith believes the doctrines of the Church, and submits 
 to its government, has the equitable right to the services of 
 the Rector of this Church within this particular Parish or 
 parochial cure, until such services are dispensed with by 
 competent authority. 
 
 To argue that because a civil contract exists for the pay¬ 
 ment of money, therefore, in case of a dispute, the Rector is 
 turned over exclusively to a court of law for damages, is to 
 run counter to the whole policy of the law ; to permit, under 
 color of a contract, a breach, or possible breach, of rights of 
 the most solemn character ; to confound things sacred and 
 profane ; and this Court would be obliged to witness the utter 
 destruction of the dearest rights, under the charter and 
 canons of the Church, of the Rector and parishioners with¬ 
 out power to afford equitable relief. 
 
 I will not so administer the law. I will, as a chancellor, 
 take jurisdiction in equity; and having the parties and the 
 cause within my judicial grasp, will treat the argument in 
 
73 
 
 favor of a mere action at law, and against the remedy in 
 equity, as of the earth, earthy—it must therefore perish. 
 
 Having disposed of our first proposition, we proceed to 
 consider the second. 
 
 Can a Vestry de facto act, supposing such action to be in 
 other respects canonical? 
 
 We speak of a Vestry de facto , because it is not denied 
 that by a writ of quo warranto the defendants’ title to their 
 office has been and is contested, and that the suit is now 
 pending and is undetermined. “ An officer de facto is one 
 who has the reputation of being the officer he assumes to be, 
 and yet is not a good officer in point of law.” Parker v. 
 Keib , 1 Lord Raymond, 658 ; King v. Corporation of Bedford, 
 6 East, 868. Or he is one who actually performs the duties 
 of an office with apparent right, and under claim and color 
 of an appointment or election. He is not an officer de jure, 
 because not in all respects qualified, nor an usurper , who 
 presumes to act officially without just pretence of right. 
 Brown v. Bunt , 37 Maine, 429. We need not multiply 
 authorities, (as was said in my opinion in Thompson v. Ewing, 
 1 Brewster, 121,) when the whole subject was most ably 
 discussed and determined in The People v. Cook, 14 Barbour, 
 before the Supreme Court of Hew York, and on appeal 
 affirmed by the Court of Errors and Appeals. See 4 Sel- 
 den, 67. 
 
 We do not now express an opinion as to the legality of the 
 election held on Easter day. These defendants may be the 
 Vestry de jure ; but for the present, and for the purposes 
 of this case, I am of the opinion that, the Vestry is a Vestry 
 not dejure but de facto; and by all the analogies an officer 
 de facto may, without doubt, legally act in and about the 
 duties of his office. Indeed, in one case reported it is said, 
 where an abbot or parson, erroneously inducted, made a deed 
 or obligation, though afterwards deprived of his benefice, 
 yet this shall bind; but the deed of one who usurps, before 
 installation or induction, or who occupies in time of vaca¬ 
 tion, without election or presentation, is void. Vin. Abr. 
 Officer and Offices, Gf. 3, vol. 1. 
 
 In Baircl v. Bank of Washington, 11 Sergeant & Rawle, 411, 
 
74 
 
 the Court thought that the de facto title of an officer depended, 
 not upon the question whether the appointment was void or 
 only voidable, hut whether the officer has come in under color 
 of right or in open contempt of all right whatever; and it was 
 further said in that cause, that the law applied not only to 
 public, but also to private officers. Indeed, an examination 
 of the cases upon this point, clearly satisfies me that as to 
 third persons having an interest therein, the acts of de facto 
 officers are valid ; though the case cannot he found, where 
 the right has been successfully claimed by an officer de facto, 
 claiming for an act done by himself. Riddle v. Co. of Bedford, 
 7 Sergeant & Rawle, 392. 
 
 The case cited by the defendants’ counsel, Trustees of Ihe 
 Vernon Society v. Hill, 6 Cowen, 23,sustains the view they take 
 of it; and on the whole, I am inclined to the opinion (though 
 for reasons hereafter to be stated it is not necessary to decide 
 positively the point), that the Vestry, if otherwise compe¬ 
 tent, had authority to act. 
 
 We are thus brought to the consideration of the last point 
 to be discussed, and which is not only the most important, 
 hut the most difficult one to decide in this case. 
 
 Can a Rector be dismissed without his consent by virtue 
 of the Charter and By-laws of St. Clement’s Church, or by 
 virtue of any canonical law or laws whatever, of binding- 
 force, iu the Protestant Episcopal Church in the United 
 States, or iu the Diocese of Pennsylvania, at this time? 
 
 We confine our investigation rigidly to the sources of 
 power above enumerated, because we have no right to go be¬ 
 yond them. If the resolutions of dismissal are to be con¬ 
 sidered legal, they must be so, because sanctioned by the civil 
 or canonical laws specified. All else is ultra vires, and be¬ 
 yond the scope of legitimate authority. 
 
 Looking now to the Charter and By-laws of the Church, I 
 find a power vested in the Yestry to elect a Rector. See 
 Charter, Art. 5 ; By-Laws, Art. 3. But upon the question of 
 his dismissal the Charter and By-laws are silent. 
 
 By the common law, as long ago as Baggs’ Case, decided 
 in 13th Jas. 1, and reported in the 11th Coke, 99, (a,) it was 
 determined that the power of amotion did not pass by a 
 
75 
 
 grant of the power to elect, as incidental to it, but must be 
 expressly reposed in the select body by the Charter. It was 
 assumed by Lord Mansfield, that it may be transferred to a 
 select body by a by-law, in the same manner as the right of 
 election. Wilcock on Corp. 247, note to sec. 634. 
 
 Even if the Vestry, under Rex v. Doncaster , 1 Barnardiston, 
 265, had the right to make a by-law upon the subject, none 
 now exists; and Wilcock very justly observes, that in a cor¬ 
 poration, by charter, surely such a power must be shown to 
 have been expressly granted by a charter or a subsequent 
 by-law. If there is no special provision on the subject in the 
 charter, the power of removal of a member resides in the 
 whole body. 2 Kent, 359; King v. Mayor f Burgesses of 
 Dyne , 1 Douglass, 149. And this last case also decides, that 
 if special power be delegated to a part of the body, it must 
 be shown to exist. 
 
 We think that beyond a doubt, the resolutions adopted 
 by the Vestry are per se null and void, as being beyond the 
 powers delegated by the Charter and By-laws. 
 
 Here we might pause, and for the purposes of this case, 
 found our final order upon the view we take of the power of 
 the Vestry, without deciding how far a congregation, with the 
 consent of the Bishop, may dissolve the connection ; but as it 
 is stated that the resolutions have received the concurrence 
 of the Ecclesiastical authority of the Diocese, I will go one 
 step further, because the question has been argued, and in¬ 
 quire whether on that account they are valid? If so,it must 
 be because of some canon of the Protestant Episcopal Church 
 in the United States, or of this Diocese, or the power which 
 will give validity to this action of the Vestry, must he con¬ 
 tained in the constitution of the Church itself. I have ex¬ 
 amined the canons of the Church of England for light upon 
 this subject, not because I believe they are of binding effect 
 here, but because as Chief Justice Beasley remarked, “the 
 English Ecclesiastical law, although somewhat modified by 
 new circumstances, and by American usages and statutes, 
 constitutes the substantial basis of the law controlling the 
 affairs of this particular Church.” 
 
76 
 
 These canons, by reason of the peculiar nature of the laws 
 of England upon the subject, give us no assistance, except 
 it may he said that no case has been discovered wherein 
 any priest has been condemned without a hearing. The con¬ 
 stitution of the Church in the United States, after much 
 discussion, extending over a long period of time, from Octo¬ 
 ber, 1784, to August, 1789, was at this last date finally con¬ 
 summated and became the great Charter of the Church, the 
 universal rule of action, and the bond of a common faith. 
 (Hawks’ Eccl. Contributions, 12.) Ho express power, such 
 as is claimed in this case, is granted in terms in the constitu¬ 
 tion. If it exists at all, it must be found in the canons of 
 the Church at large or of this Diocese. 
 
 The canons of the Diocese of Pennsylvania have been ex¬ 
 amined, and are now before me, but these are silent upon 
 the subject; so that the only canon now in existence will be 
 found under Title II., Canon 4, § 1, entitled “Of the dis¬ 
 solution of a pastoral connection.” The first section declares, 
 “ In case a Minister who has been regularly instituted or 
 settled in a Parish or Church, be dismissed by such Parish 
 or Church, without the concurrence of the Ecclesiastical au¬ 
 thority of the Diocese, the Vestry * * * shall have no right 
 of representation in the convention of the Diocese, until they 
 have made such satisfaction as the convention maj r inquire; 
 but the minister shall retain his right to a seat in the con¬ 
 vention, subject to the approval of the Ecclesiastical authority 
 of the Diocese.” 
 
 “ And no minister shall leave his congregation against 
 their will, without the concurrence of the Ecclesiastical au¬ 
 thority aforesaid; and if he shall leave his congregation 
 against their will, without such concurrence, he shall not be 
 allowed to take his seat in any convention of this church, or 
 be eligible into any church or parish until he shall have made 
 such satisfaction, as the Ecclesiastical authority of the Diocese 
 shall require.” 
 
 The second section of this canon provides that a record 
 shall be made of a regular and canonical dissolution, and 
 that a dissolution not regular or canonical, shall be sub¬ 
 mitted to the Convention of the Diocese. 
 
77 
 
 “ This canon shall not he obligatory in those Dioceses with 
 whose canons, laws, or charters, it may interfere.” 
 
 “ It will be observed,” says Dr. Hawks, in his work hereto¬ 
 fore cited, page 307, that “ this canon applies to nothing hut 
 the single case of a desire for separation, which may exist 
 without any other disagreement between the parties.” 
 
 It may be further declared that no provision is made for 
 the case of a Minister who refuses to consent to a dissolution. 
 If a Parish or Church act without Ecclesiastical sanction, or 
 if the Minister shall leave without the same, a penalt}^ fol¬ 
 lows and may be inflicted; but what is to he done with a 
 church law which, in a case like the present, prescribes no 
 duty to be performed, creates no offence, and affixes no 
 penalty. 
 
 I find under Title II., Canon 2, § 1, of Discipline, a series 
 of punishable offences. For these a Presbyter may he tried, 
 and, on being found guilty, “maybe admonished, suspended, 
 or degraded.” 
 
 Is the refusal to consent to a dissolution an offence within 
 the meaning of this canon ? If so, the minister must be 
 canonically tried. Any other doctrine would expose any 
 Presbyter to a virtual suspension or degradation, when and 
 as the officials of the Church, ecclesiastical and lay, might 
 determine to strike the blow, and yet lacked either the cour¬ 
 age or the evidence, or both, to make and sustain a direct 
 charge or accusation. 
 
 The remarks are not intended to apply to these defendants, 
 nor to the present most able, eloquent, and worthy incumbent 
 of the Episcopal chair; they are intended, however, to test 
 the true meaning of this canon and its legal effect. 
 
 If we try the proceedings of the Vestry by another stand¬ 
 ard, we will find their action altogether untenable. 
 
 Under and by virtue of a canon in force in this Diocese, a 
 Presbyter may be tried for certain offences. This canon was 
 doubtless adopted under the authority of the canon already 
 referred to. See Tit. I., Canon 2, of Discipline. 
 
 Can it be possible that any Minister may he summarily 
 ejected from his Parish without a trial ? 
 
 Shall the civil law guarantee to the humblest citizen a 
 
78 
 
 hearing, and may an ordained and duly instituted Minister 
 of the Protestant Episcopal Church he denied a right as 
 common as this one ? * 
 
 The Standing Committee of the Diocese of New York did 
 not so think when in June, 1848, they acted upon a case of 
 this description, after a copy of the written application then 
 made, with the facts and reasons upon which it was grounded, 
 had been served upon the Minister. 
 
 The Convention of the Diocese of New Jersey, as far back 
 as June 6th, 1804, did not think so, when they suspended 
 action until a canon (now repealed) was passed to meet Dr. 
 Ogden’s case. See Hoffman’s Law of the Church, p. 823. 
 That venerable prelate, whose name and opinions to this 
 day, even in a civil Court, carry with them great weight— 
 I mean Bishop White—did not so believe, when in speaking 
 of the canon enacted to meet the above case, he questioned 
 its principle on the ground that there should be no severance 
 from a pastoral charge except as the result of a trial for 
 alleged misconduct. Memoirs of the Church, p. 191, sup¬ 
 posed to have been written in 1820. 
 
 In the “ Office of Institution of Ministers ” I find in the 
 form of the “ Letter of Institution,” which a Bishop may he 
 the rubric, send by one of his Presbyters, whom he may ap¬ 
 point as the institutor, the following significant senteuce: 
 “ And in case of any difference between }' 0 u and your con¬ 
 gregation, as to a separation and dissolution of all sacerdotal 
 connection between you and them, we, your Bishop, with the 
 advice of our Presbyters, are to be the ultimate arbiter and 
 judge.” IIow, unless by a hearing and trial? At law and 
 in equity, from Baggs’ Case to the present day, no man or 
 men can be condemned against his or their consent without 
 a hearing. 
 
 But we must go one step further and endeavor to prove 
 that without a special agreement, or in the absence of a pro¬ 
 vision in a Church Charter, or the By-laws adopted by virtue 
 thereof, the tenure by which a Presbyter in the Protestant 
 Episcopal Church holds bis Rectorship, is by no means un¬ 
 certain. 
 
 Special provisions in a Charter, or special agreements be- 
 
79 
 
 tween the Rector ancl his congregation, become the law of 
 the case. In England the tie cannot he broken except by 
 judicial sentence, or resignation to and acceptance by the 
 ordinary. Burns’ Eccl. Law, Yol. III., p. 540. 
 
 In the United States, conflicting opinions exist among 
 those best able to form a judgment upon the subject. 
 
 I am, however, of the opinion, that under the existing 
 laws of the Church, the civil contract (except as hereinbefore 
 specified) cannot be broken without an accusation and trial. 
 
 This opinion is based in part upon the past legislation of 
 the Church; upon the expressed views of more than one of 
 its oldest divines; upon the opinions of men learned in the 
 law, who have examined the subject; upon the attempts 
 which have from time to time been made to remedy the 
 difficulty ; and upon those general principles, which must, in 
 the absence of express authority, govern the case. In 1804 a 
 canon was adopted entitled “ Of Differences between Minis¬ 
 ters and their Congregations.” A canon on the subject was 
 passed, being 32d of 1808, with an additional clause. This 
 clause was omitted in 1832. Canon XXXIV. of General 
 Convention of 1832. This canon provides a method of trial 
 and a penalty. In 1847, the Committee on Canons proposed 
 a new canon, not I believe adopted, in which a system of 
 arbitration was created. The original canon was, in 1859, 
 repealed by the General Convention in session at Richmond, 
 Va.,on motion of the Rev. Dr. Stevens, then a Presbyter and 
 now the Bishop of this Diocese. See Journal of Convention 
 of 1859, pages 125-127. An unsuccessful effort was made 
 at this Convention to amend the old canon. See Journal 
 of Convention, p. 88, for report of Committee on Canons, by 
 Mr. Iloffman. 
 
 The subject in 1865 was brought before the Convention of 
 Ohio by the Bishop, and that prelate, in an address, notices 
 as a sound principle that, “ where the rights and interests of 
 both Ministers and congregation are concerned, the body to 
 judge should be composed of clergy and laity.” 
 
 Bishop White’s opinion has already been referred to, while 
 the effort of Mr. Hoffman in the General Convention, and 
 the expressed opinion of the late G. M. Wharton, Escp, (a 
 
 / 
 
80 
 
 canonical lawyer of acknowledged ability,) upon the case 
 which arose in Michigan, (see Hoffman’s Eccl. Law, p. 270,) 
 as well as the reported views in the last cited volume, of an 
 eminent Presbyter of this Diocese, Rev. M. A. De Wolfe 
 Howe, (whose letter, I regret to say, I have been unable to 
 find,) all look in the same direction. 
 
 The legislation now repealed embodied the views of the 
 Church upon the subject; the efforts made to amend and to 
 repeal the existing law both indicated a desire either to 
 perfect the method of trial, or to abolish it, aud thus make a 
 Minister amenable only to canonical discipline ; the expressed 
 opinions of prelates, presbyters, and conventions, together 
 with the views of prominent laymen, all seem to take it for 
 granted that in some method a trial should take place, and, 
 in default thereof, the ministerial bond should not be severed. 
 
 Upon general principles, the views already expressed in 
 this opinion upon other points, cover the proposition now 
 contended for, while the canon which declares that “ a Min¬ 
 ister is settled, for all purposes, here or elsewhere mentioned 
 in these canons, who has been engaged permanently by any 
 Parish, according to the rules of said Diocese, or for any term 
 not less than one year,” (Tit. I., Canon 13, § 2, of Digest of 
 Canons,) would seem to indicate the sense of the Church to 
 be: First, That a settlement should not exist for a shorter 
 term than one year; and, Second , That unless some special 
 agreement, or the terms of a Charter or By-laws prohibit, it 
 may be indefinite. 
 
 Having thus considered the facts aud law of the case, it 
 becomes my duty to act according to the dictates of my 
 judgment and conscience. 
 
 It is very evident that the interests of this Corporation are 
 endangered by internal difficulties of which I cannot speak, 
 because I have no judicial knowledge of their nature. Be 
 the causes what they maj', it is certain that a house divided 
 against itself cannot stand. I therefore officially recommend 
 some amicable adjustment of existing difficulties. Should 
 an intimation to that effect be made, I will at once modify 
 or suspend the operation of the order about to be recorded. 
 
 The usefulness of the Rector and his Assistant will be 
 
81 
 
 greatly promoted, and the peace of Vestry and parishioners 
 re-established should the course suggested be adopted; and 
 this is not an expression of individual opinion (which can 
 have no place here), but of a judge clothed with the powers 
 of a chancellor, about to exercise a most delicate prerogative; 
 not, indeed, thereby to encourage insubordination, or wilful 
 disregard of Ecclesiastical authority, canonically invoked, but 
 only to prevent remediless injury. 
 
 The first prayer for relief canuot be granted at this stage 
 of the cause; nor will I grant the second prayer in the bill 
 contained, because the injunction would be mandatory. 
 
 The plaintiffs are, however, entitled to relief as prayed for 
 in the third prayer of the bill; and it is therefore ordered, 
 adjudged, and decreed that the preliminary injunction here¬ 
 tofore granted be continued until the further order of this 
 Court, and that the defendants, their agents and servants be 
 restrained from interfering in any way with the exercise by 
 the Rev. TI. GL Batterson, of his office of Rector, and with 
 the exercise by the Rev. W. H. V. Stewart, of his office of 
 Assistant Minister, in St. Clement’s Church in Philadelphia, 
 until a regular and canonical dissolution of the connection 
 now existing between them and the congregation of said 
 Church, shall take place in accordance with the Constitution 
 and Canons of the Protestant Episcopal Church in Penn¬ 
 sylvania, and in the United States. 
 
The following is a copy of Bishop Stevens' letter of 
 concurrence. 
 
 Diocese of Pennsylvania, 
 Episcopal Rooms, 
 
 70S Walnut Street, 
 
 Philadelphia, May 4,1871. 
 
 Henry S. Lowber, Esq., 
 
 Secy Vestry of St. Clement's Church , Philadelphia. 
 
 Dear Sir : — In reply to your official note of the 3d inst., 
 enclosing certain resolutions of the Vestry, I beg leave to 
 say that the Ecclesiastical authority of the Diocese concurs 
 with the action taken by the Vestry in dissolving the pasto¬ 
 ral connection between it and the Minister and Assistant 
 Minister of St. Clement’s Church. 
 
 Very respectfully yours, 
 
 Wm. Bacon Stevens, 
 
 Bishop of the P. E. Church , 
 Diocese of Penna. 
 
 APPENDIX I. 
 
 Supreme Court of New Jersey. 
 
 WILLIAM J. LYXD v. GEORGE MENZIES, JOHN II. 
 SUYDAM, AND OTHERS. 
 
 This was an action on the case for forcibly preventing a 
 Minister from preaching iu the Church and occupying the 
 parochial school-house. Upon the trial the following facts 
 were elicited. By a deed dated 1st October, 1853, Cyrus 
 Peck and wife conveyed the lot upon which the church and 
 school-house are now erected, to the Rectors, Wardens, and 
 Vestrymen of the Church of St. Barnabas, Roseville, in the 
 city of Newark, in fee, upon the condition that a church and 
 school-house should be erected thereon, and which church 
 edifice should be consecrated, appropriated, and devoted for¬ 
 ever exculsively to the service of Almighty God, according 
 
83 
 
 to the doctrine, discipline, and worship of the Protestant 
 Episcopal Church in the United States of America. At the 
 time of this conveyance the said Church was not incorporated, 
 and did not become so until after the expulsion of the minis¬ 
 ter, as herein after stated. 
 
 On the 23d July, 1855, this church was consecrated by the 
 Bishop of the Diocese of ISTew Jersey, and from that time 
 forward the congrelation continued its organization. In 
 December, 1861, the plaintiff accepted a call to the Rectorship 
 of this church, and in the month of June, 1862, was duly 
 instituted. It appeared that the plaintiff, in common with 
 the other officers of the Church, supposed the Church had 
 been incorporated and that various corporate acts were per¬ 
 formed. Before his call, the Church had claimed and been 
 conceded ecclesiastical rights which pertained to incorporated 
 churches only; after the call of the plaintiff, a school-house 
 was put up on the church lot, and he was placed in possession. 
 On the 27th April, 1867, the plaintiff received a note from 
 two of the defendants, who were the Wardens of the Church, 
 notifying him that on Easter Day, which was then passed, 
 his connection as Rector with the church had ceased. On the 
 next day, which was Sunday, when the plaintiff went to the 
 Church to officiate he found the Church closed, the doors being 
 fastened, so as to prevent his entering. In a few days after¬ 
 wards he was in a similiar manner excluded from the school- 
 house. It Avas proved that such expulsions were the acts of 
 the defendants, two of whom were Wardens and the others 
 V estry men of the Church. The question of laAV as to the right 
 of the plaintiff to recover Avas reserved, and the matter of 
 damages submitted to the iury, avIio returned a verdict 
 for $1,000. 
 
 The case came before this Court on a motion for a neAV 
 trial. 
 
 C. Parker and Charles Borcherling , Jr., for plaintiff. 
 
 Joseph P. Bradley , for defendants. 
 
 Beasley, C. J.—The motion for a new trial in this case is 
 rested on two grounds, viz.: first, that the proofs will not 
 
84 
 
 sustain an action at law; second, that the damages are 
 excessive. 
 
 On the first of these heads the ground taken is, that at the 
 time when the plaintiff became the Rector of this congrega¬ 
 tion, and also at the time of the transaction complained of, 
 the congregation was not incorporated. From this fact it 
 was urged that the title under the deed from Mr. Peck could 
 not pass out of him for the want of a competent grantee to 
 take it, and that the members of the congregation were in 
 possession of these premises as tenants in common by suffer¬ 
 ance, and that, consequently, such rights in the realty as 
 ordinarily pass to the Rector under a regular organization, 
 did not in the present case vest. 
 
 So far as the law has to do with the relationship of the 
 Rector with his flock, such relationship is to be regarded as 
 the effect of a contract. 
 
 What, then, is the agreement into which a congregation 
 of this denomination of Christians enters upon the call of a 
 Rector? So far as touches the matter in controversy, it 
 plainly appears to be this : They otter to the Minister re¬ 
 ceiving the call such rights in their temporalities as by the 
 Ecclesiastical law of their sect, belong to the office which is 
 tendered, one of such rights being that of preaching on Sun¬ 
 days in the Church provided by the congregation. Such an 
 otter, therefore, can have nothing to do with the title to the 
 Church edifice. .No matter in whom the title may reside, if 
 the congregation has the use of the building, the Rector 
 must of necessity have the right to partake in such use. 
 The agreement is not, as the argument on the part of the 
 defendants assumed, that the Rector is to possess this class 
 of privileges in these temporalities of which the congregation 
 is the absolute owner. Put to the contrary, whatever place 
 the congregation provide for the purpose of public worship 
 in the Parish, into such place the Rector, by virtue of his 
 office, has the right to enter in order to conduct such wor¬ 
 ship. I have failed, therefore, to perceive how the fact of 
 title to the Church premises in question is to affect, the legal 
 result in this case. In the view which I take of the under¬ 
 standing between these parties, it cannot matter at all 
 
85 
 
 whether or not the congregation had any interest in these 
 premises other than a right to the occupation of them for 
 the purpose of Divine service on the Sunday of the expul¬ 
 sion ; because, if on that occasion this building was the place 
 set apart by the congregation for their religious exercises, then 
 it necessarily follows that the plaintiff at that time, virtate 
 officii, had the legal right to be present and to conduct the 
 worship. But the case in reality is much stronger in favor 
 of the plaintiff than this. This Church property was put 
 into the possession of this congregation for their denomina¬ 
 tional uses by Mr. Peck, the owner of the fee; they had 
 erected their Church upon it, and thus complied with the 
 conditions of the grant; it is true the title at law was de¬ 
 fective, but it is also true that their title in equity was com¬ 
 plete. This Church, thus built, had beeu consecrated bj T the 
 Bishop of the Diocese, and by institution, performed with all 
 due Ecclesiastical formalities, the plaintiff had been placed 
 in charge of the spiritual affairs of the Church; the congre- 
 tion remained in full possession of the Church edifice, and 
 neither Mr. Peck nor any one else called such possession in 
 question. Under the circumstances, bow is it possible that 
 these defendants, who claim to be the representatives of the 
 congregation, can deny the rights of the Rector as to these 
 premises on the ground of the inferiority of their own title? 
 Suppose we regard them as mere tenants at sufferance, will 
 that fact enable them to put an end to the rights of the 
 plaintiff in this property? If such were their position, the 
 only effect would be to make both their own rights and 
 those of the Rector dependant on the will of the owner of 
 the land. But it certainly would be contrary to all principle 
 to permit a party in possession of real property to grant an 
 interest in it to another, and then defeat such interest on 
 the ground of his own inability to make such grant. The 
 rule that a party cannot derogate from his own grant is one 
 of universal efficacy, and applies in a very direct manner to 
 the present case. JSTor is there anything in the suggestion 
 that the usual rights touching the temporalities which vest 
 in the Rector, could not be obtained by him in the present 
 instance, on account of the imperfection of the Ecclesiastical 
 
 7 
 
organization of this congregation. The imperfection relied 
 on was the absence of an incorporation. But the want of this 
 quality does not at all affect the rights and duties of pastor 
 and people towards each other; the effect of becoming in¬ 
 corporated is to facilitate the acquisition and transfer of 
 property, and to enable the congregation to be represented 
 in the Convention of the Diocese: Article V. of Constitution 
 of P. E. C. of Diocese of iSTew Jersey. But, by the canoni¬ 
 cal law of this denomination of Christians, it is not neces¬ 
 sary, in order to constitute a Church, that the congregation 
 should take the form of an incorporated body. Indeed, the 
 very law of this State, which provides for the incorporation 
 of this class of churches, presupposes and requires that there 
 shall be antecedent to the inception of proceedings “ a con¬ 
 gregation of the Protestant Episcopal Church in this State 
 duly organized, according to the constitution and usages of 
 said churchAct of 1829. In the case now before us, it 
 plainly appears that this Church was constituted in con¬ 
 formity to the Ecclesiastical law and usages applicable to it > 
 and the consequence is, that the plaintiff, by his official con¬ 
 nection with it, acquired all the customary powers and 
 privileges pertaining to the Rectorship. 
 
 But there was a second objection taken on the argument, 
 which was, that on the assumption of the existence of the 
 right of the Rector to the privileges claimed by him, still it 
 was said, an innovation or disturbance of such rights would 
 not constitute the ground of a suit at law. 
 
 I cannot yield my assent to this proposition. The nature 
 of the right in question forbids such a result. I think it is 
 clear that, in right of his office, a Rector, by force of the law 
 of this Church, has either the possession of the Church edifice, 
 or has a privilege which enables him to enter into it—such 
 privilege being in the nature of an easement. Mr. Murray 
 Hoffman, in his learned and interesting treatise on the law 
 of the Protestant Episcopal Church in the United States, 
 page 266, in remarking on the effect of the incorporation of 
 churches, states his views in these terms, viz.: u The title 
 then to the church and all church property is in the trustees, 
 collectively, for all corporate purposes; but there is another 
 
87 
 
 class of purposes purely Ecclesiastical, hs to which the statute 
 did not mean to interfere or prescribe any rule. These are 
 to he controlled by the law of the church.” And the con¬ 
 clusion to which he comes is thus stated: “ That the control 
 and possession of the Church edifice upon Sundays, and at all 
 times when open for Divine services, appertains exclusively 
 to the Rector.” I have no doubt with regard to the correct¬ 
 ness of this view. By the English Ecclesiastical law, which, 
 although somewhat modified by new circumstances and by 
 American usages and statutes, constitutes the substantial 
 basis of the law controlling the affairs of this particular 
 Church, the possession of the Church and churchyard is in 
 the incumbent; nor does it make any difference in' this re¬ 
 spect, in whose hands the title to the religious property is 
 lodged, as for example, in case the freehold of the Church 
 and churchyard is in the Rector, nevertheless, the curate will 
 be deemed in possession for all Ecclesiastical purposes. In 
 exemplification of this rule, I refer to an interesting discus¬ 
 sion of the question in Greenslade v. Darby , decided during 
 the present year by the Court of Queen’s Bench, Law Rep. 8 
 Q. B. 421. “ I quite agree with the former decisions.” Such 
 
 is the declaration of Chief Justice Cockburn, that an incum¬ 
 bent has possession of the churchyard as well as of the Church 
 for all spiritual purposes; therefore for burials, and for all 
 purposes attached to his office, he has undoubtedly uncon¬ 
 trolled possession of the churchyard. To the same purpose 
 is the rule laid down by Cripps in his treatise on the Church 
 and Clergy, page 158. See, also, 1 Burns’ Ecclesiastical Law, 
 877; /Stocks v. Booth , 1 T. R. 428. If, then, we adopt this 
 theory, and I perceive no reason for rejecting it, that for the 
 purpose of the exercise of his sacerdotal functions, the Rector 
 becomes possessed of the Church buildings and grounds, it 
 will be difficult to devise any pretext in denial of the right 
 of such officer to a civil remedy if such possession he invaded. 
 Ror does the right to redress for an interference with his 
 rights, seem less clear, if we adopt the hypothesis, that by 
 force of his position the plaintiff was possessed of an ease¬ 
 ment in these premises. Such a privilege would not be un¬ 
 like in kind to a right to the occupation of a pew in a Church; 
 
88 
 
 and of this latter right in the case of The Presbyterian Church 
 v. Andruss , 1 Zabriskie 328, Chief Justice Green remarks, it 
 “ is an incorporeal hereditament. It is in the nature of an 
 easement, a right or privilege in the lands of another. For 
 an interruption of this right, an action on the case for a dis¬ 
 turbance, as in other cases of injury to incorporeal heredita¬ 
 ments, is the only remedy.” Regarding, then, the Rector’s 
 interest in the Church edifice as a mere right to enter, and 
 while there to discharge certain functions, I am unable to 
 distinguish it, in its substantial essence, from the right of the 
 pew holder. The right of the latter is obviously no more 
 secular in its character than the former; both the pew-holder 
 and the Minister attend to the end of religious worship and 
 edification, and as the pew-holder has a remedy at law for a 
 disturbance of his privilege, it would seem to be preposterous 
 to deny it to a Minister lor a like wrong. Upon principle, 
 then, I think, the present action is to be vindicated, and for 
 a precedent I refer to the case of Pliillybrowne v. Ryland , 8 
 Mod. 352, 2 Strange G24, in which it was decided that an 
 action would lie on behalf of a Parish over against the clerk 
 of the Vestry, for shutting the Vestry-door and keeping the 
 plaintiff' out, so that he could not come in to vote. The rule 
 of decision in this case appears to he indistinguishable from 
 that which is called for by the one now before us. 
 
 Adopting, therefore, either of the views above indicated, 
 viz., that the plaintiff' was in possession, or that lie had a 
 right to enter on special occasions, the interference with 
 either of such interests affords a right of suit; the mere fact 
 that the form of action would be variant if we adopt one or 
 the other theory, cannot affect this case on the present motion, 
 as the real question in controversy between the parties has 
 been tried, and consequently by force of the provision of our 
 present Practice Act, the mode of suit is now alterable, so as 
 to conform to the legal view which the Court may adopt. 
 
 Influenced by these considerations, I have concluded that 
 the plaintiff’s right of action is sustained by the proofs in the 
 case. 
 
 On the second head my judgment is also in favor of the 
 plaintiff; the damages are undoubtedly large, but this ques- 
 
89 
 
 tion was left fairly to the jury, and there is no reason to 
 suppose that they were in any respect subjected to any sin¬ 
 ister influence. The defendants acted with great indiscre¬ 
 tion ; their conduct was oppressive, and whatever their 
 intentions may have been, it was calculated to wound and 
 injure the plaintiff. 
 
 The verdict should not be disturbed. 
 
 V 
 
 APPENDIX II. 
 
 The case of the Rev. Milton C. Lightner, Rector of St. 
 Paul’s Church, Detroit, Michigan. 
 
 Shortly after the Easter election in the year 1866, it was 
 found that the Vestry, which was composed of old and new 
 members, were unanimous in their desire to get rid of the 
 Rector of the Church. They met and passed resolutions of 
 dismissal, and referred them to the Bishop for his concur¬ 
 rence. Thereupon the congregation rose and took steps to 
 prevent the Vestry from carrying out their designs. They 
 immediately prepared a letter of confidence in their Rector, 
 which was signed by a large majority of them. It was in¬ 
 tended to present it to the Vestry, but this was not done, 
 as they had already informed the congregation that they 
 did not hold themselves amenable to them, upon the 
 ground that “ ours is not a Congregational Church.” The 
 Bishop also expressed similar views. The paper, however, 
 was sent to the Bishop, time having been allowed them before 
 he acted, together with a letter requesting him to avert the 
 calamity hanging over them. 
 
 The congregation thought the Church “ Congregational” 
 to the extent of there being a congregation recognized by 
 its constitution ; and warned of the antagonism of the Bishop 
 to the Rector, they determined to move in their own self-de¬ 
 fence, and instituted measures to hold another election, on 
 the ground of the election of the Vestry having been irregular 
 and unlawful. Notice of this election was read from the 
 
90 
 
 chancel on Sunday, the 26th of August, and would have 
 been repeated on the next Sunday, hut the Bishop, who had 
 called together his Standing Committee on the 23d of August, 
 and adjourned them to the 3d of September, got them to¬ 
 gether on the 29th of August, and on the next day Mr. 
 Lightner received the following letter: 
 
 Detroit, August 30,1866. 
 
 Rev. M. C. Lightner, 
 
 Sir :— I am instructed to inform you that you have been 
 dismissed from the Rectorship of St. Paul’s Church, in the 
 city of Detroit, and that the Ecclesiastical authority of the 
 Diocese of Michigan has concurred in such dismissal; and to 
 notify on henceforth to refrain from using the Church build¬ 
 ing. I am also instructed to inform 3 'ou that if 3 t ou desire 
 to remain for the present in the parsonage house, you can 
 do so until it is needed for a new Rector, free of charge. I 
 enclose the sum of $208.33, which would have been due to 
 3 ’ou, had your incumbency continued until October 1st. 
 
 B. VERNOR, 
 
 Secretary Vestry , St. Paul’s Church , Detroit. 
 
 On the 6 th of September, the day when the new election 
 was to he held, the congregation repaired to the Church, but 
 they found the doors locked and barricaded. The election 
 was held upon the sidewalk, and resulted in the choice of 
 two Wardens and eight Vestrymen as required the Char¬ 
 ter. (The objection to the Easter election was that ten Ves- 
 tiymen and no Wardens were elected, and that this rendered 
 the election illegal and void.) The old Vestry held on to 
 their positions, whereupon a writ of quo warranto was issued 
 against them. Upon their demurrer to the information, 
 judgment was rendered in their favor. 
 
 Mr. Lightner, as late as March, 1867, remained in posses¬ 
 sion of the rectoiy, retained the Parish register, and per¬ 
 formed the duties of his office outside of the Church edifice, 
 from which he was excluded by force, lie filed a protest 
 with the Bishop against the interference by aiy other Min¬ 
 ister with his rights and prerogatives as Rector of St. Paul’s 
 
91 
 
 ( 
 
 Church. He also took counsel upon his rights in the matter, 
 ancl received the following replies : 
 
 Philadelphia, December , 31, 1866. 
 
 Rev. M. C. Lightner, 
 
 Detroit, Michigan : 
 
 I am clearly of the opinion that a Vestry has no right to dis¬ 
 miss a Rector, and thus dissolve the pastoral Relation, with¬ 
 out accusation or trial; and further, I am of opinion that 
 any accusation or trial must be in accordance with the 
 Ecclesiastical law of the communion to which the parties 
 belong. 
 
 The legislation of 1865 prevents the dismissal of a Minis¬ 
 ter by a Vestry, with, the assent of the Bishop, from being 
 uncanonical, and relieves the parties from the penalties of 
 the canon. I do not think, however, that it makes good a 
 dismissal of the Rector without accusation or trial; or that 
 it dissolves the contract between him and the Parish. Such 
 a result would be in violation of general principles; and, I 
 think, therefore, that the law of 1865 should be construed in 
 subordination to these. 
 
 I give this opinion, with a saving of what the law of 
 Michigan or the Charter of the Church may prescribe. I 
 have not seen either of them. 
 
 Very sincerely and respectfully yours, 
 
 G-. M. WHARTOK 
 
 Philadelphia, March 18,1867. 
 
 The Rev. Milton C. Lightner, 
 
 Rev. and Dear Sir:— I have before me your request for 
 a written opinion upon “the right of a Vestry to dismiss a 
 Rector without accusation or trial.” With the facts in any 
 particular case which you may have in your mind, I am 
 unacquainted ; and if it were otherwise I should be reluctant 
 to meddle, unless it were made my official duty. In what I 
 shall say, therefore, I wish to be understood as dealing with 
 an abstract question. 
 
92 
 
 In Canon 4, of Title II., which is the only one contained in 
 the Digest, bearing on the subject “ Of the dissolution of a 
 pastoral connection,” it may he observed that a Minister 
 regularly settled in a Parish or Church, is brought under the 
 same provision as one regularly instituted , from which use 
 of terms, I would understand that the Church in these 
 United States, regards a Minister when settled as having the 
 same rights and duties and occupying the same status before 
 the law as when instituted. 
 
 Turning then to the “ Office of Institution ” in the pre¬ 
 scribed Letter of Institution, we find it provided that due 
 notice of a wish on either part to dissolve the sacerdotal 
 relation between the Minister and the congregation, is to be 
 given to the Bishop; and in case of any difference between 
 the parties as to a separation, the Bishop with the advice of 
 his Presbyters is to lie the ultimate arbiter and judge. 
 
 Let me here take occasion to say, that the Prayer Book is 
 of higher authority than the Canons, and that they are 
 rather to be interpreted by it than it by them. The “ Eccle¬ 
 siastical authority,” which is to take cognizance of the 
 dissolution of a pastoral connection, is, we learn from the 
 “ Institution Office,” not the Bishop alone, but the Bishop and 
 his Presbyters, and the}’ are to proceed in the consideration 
 of any case, after the ways directed and obviously implied 
 in the Letter of Institution. That this is indeed so appears 
 from the history of our legislation. 
 
 The “ Office of Institution ” was adopted in 1804, and set 
 forth with alterations in 1808. Simultaneously was adopted 
 a canon, (modified also in 1808,) entitled “ Of Difference be¬ 
 tween Ministers and their Congregations,” and which begins 
 with the following language: “In cases of controversy be¬ 
 tween Ministers who now and may hereafter hold the Rec¬ 
 torship of Churches or Parishes,” etc. This canon provides 
 that application shall be made by one or both the parties to 
 the Bishop of the Diocese, and that he shall summon all the 
 Presbyters of the Diocese; and that if it shall appear to the 
 Bishop and a majority of the Presbyters assembled, after such 
 general summons, that the differences are irreconcilable, and 
 that a dissolution of the connection is indispensably necessary, 
 
93 
 
 he and his said Presbyters shall recommend to said Ministers 
 to relinquish their titles, on such conditions as may appear 
 reasonable and proper to the Bishop, etc. How it is evident 
 that the Canon and the Office of Institution, were fash oned 
 in conformity with one another, and that the Canon gives to 
 Ministers who “ hold Rectorships,” the same protection which 
 the officer gives to the Instituted. In both it is contem¬ 
 plated that the matter of difference between a Minister and 
 a congregation, shall he considered by the Bishop and his 
 Presbyters, with a view, if possible, to reconcilement; and that 
 the separation, if it takes place, shall do so in conformity to 
 their recommendation and on terms prescribed by them. 
 
 All this implied investigation involves the appearance of 
 both parties before the Ecclesiastical tribunal. Indeed if 
 there were no such implication, the settled principle of jus¬ 
 tice, which now obtains in all civilized countries, would re¬ 
 quire that before a man be condemned and suffer harm, he 
 stand before the Court face to face with his accusers, and 
 enjoy the opportunity to hear; and, if he can, refute their 
 allegations. 
 
 I know it may be said that the canon to which I have 
 referred was repealed by Canon 2 of Title IV. of the Digest. 
 In point of fact it was, but in the intention of the General 
 Convention it was not.* In 1856 a committee was appointed 
 to prepare a Digest of all the Canon law of the Protestant 
 Episcopal Church ; that is, to codify, arrange and harmonize 
 existing laws—not to make any, not to expunge any. At 
 the General Convention of 1859, that committee made its 
 report. Preliminary to their recommendation that the Digest 
 be adopted, they gave in their report the following assur¬ 
 ances : “ The committee have also from a minute comparison 
 satisfied themselves that no part of existing canons have been 
 omitted.” 
 
 The General Convention proceeded to accept and credit 
 the Digest on the assurance thus given, that it contained 
 every distinct provision which had been up to that moment 
 in the canon law of the Church. 
 
 * Dr. Hove lias since stated that he was in error on this point, although 
 it in no way invalidates or weakens his argument. 
 
94 
 
 If the features of the canon “ Of differences between Min¬ 
 isters and their congregations,” are not to be found in the 
 Digest, they have been unwittingly omitted. The Church has 
 never determined to repeal them. 
 
 However the question of their binding force might he 
 settled by a civil Court, I think I have shown by a refer¬ 
 ence to the canon which contained them, and the contempo¬ 
 raneous language of the Office of Institution, that the 
 bonds declared in that office, are in the Church regarded as 
 inhering in the relation of a settled Minister and his congre¬ 
 gation, and that neither party can dissolve the connection 
 without consent of the other; that in case of differences, the 
 matter must be brought before the Bishop ; that he must 
 convene a Council of Presbyters to consider with him before 
 the fact , the expediency of separation ; that they must effect 
 reconciliation if possible, and if not, determine terms and 
 conditions of dissolution, which the parties must, under pen¬ 
 alty, accept. 
 
 To make this process just, it is indispensable that the con¬ 
 testants appear face to face befoi'e the proper tribunal. 
 
 And without these conditions any attempted severance 
 of the pastoral relation by one of the parties to it, contrary 
 to the will of the other, is against the good order of the 
 Church, besides being a violation of the common law in all 
 constitutional government—that, no man shall be condemned 
 unheard. Local diocesan canons may differ in detail from 
 the canons of the general Church. In what I have written 
 I have not taken them into account. 
 
 If every Rector were removable at the caprice of his 
 4 estry, sanctioned by an ex parte presentation of their case 
 before the Bishop, we should be in a pitiable condition. 
 
 Very truly, 
 
 Your brother in Christ, 
 
 M. A. DE 4VOLFE IIOWE. 
 
95 
 
 APPENDIX III. 
 
 A statement of the case of the Pev. William Rawlins 
 Pickman, Rector of St. Peter’s Church, Salem, Massachusetts. 
 
 Mr. Pickman was Rector of St. Peter’s Church, and on 
 April 18th, 1865, received the following communication: 
 
 Easter Tuesday, April 18, 1865. 
 
 Rev. and Dear Sir:— At the annual Easter meeting last 
 evening, the following resolutions were passed by a vote of 
 thirty-four yeas to fifteen nays. 
 
 “ Resolved , That the proprietors of St. Peter’s Church, in 
 Parish meeting assembled, feel constrained to express their 
 opinion and conviction that the interests of the Parish will 
 be best subserved by a termination of the connection between 
 them and their present Rector. 
 
 “ Resolved , That the clerk cause a copy of these resolutions 
 to he sent to Rev. Mr. Pickman, and that when this meeting 
 adjourn, it adjourn to meet at this place on Monday evening 
 next at 71 o’clock p. m.” 
 
 To this the Rector replied, that were he “ to accede to their 
 resolution, he would go from them with an utterly ruined 
 characterthat while he “ had been assailed by public 
 slander with a grossness, a pertinacity, and a malignity 
 which falls to the lot of few men,” they had refused, as a 
 body, to bring any charges against him, by meeting which he 
 could defend himself, and that in short he “ felt constrained 
 to express his ‘ opinion and conviction,’ that the interests of 
 the Parish and the interests of the Rector would be materially 
 injured by a termination of the connection existing between 
 them at present.” 
 
 At a subsequent meeting of the “ proprietors,” the follow¬ 
 ing resolution was passed by a vote of thirty-seven to eight. 
 
 “ Resolved , That for the purpose of bringing back harmony 
 to the Parish, and wholly disclaiming any intention of impu¬ 
 ting to the Rector any wrong, the proprietors hereby re¬ 
 iterate their opinion as to the expediency and necessity of 
 
96 
 
 such dissolution, and most respectfully and earnestly request 
 their Rector, the Rev. Wm. Rawlins Rickman, to resign his 
 charge of this Parish.” 
 
 The Rector declining to follow the advice of these gen- 
 tlemen, at a subsequent meeting, hy a vote of thirty-seven to 
 nine, they declared the pastoral relation dissolved, and 
 appointed a committee “ to apply at once to the Bishop for 
 his concurrence in such dissolution.” 
 
 The application having been made, the Bishop replied to 
 the chairman of the committee as follows: 
 
 Boston, May 10,1865. 
 
 My Dear Sir :•—I have received from you a copy of certain 
 proceedings of the proprietors of St. Peter’s Church, Salem, 
 including a resolution which was passed dissolving the 
 pastoral relations between the Parish and its Rector, and 
 appointing a committee to ask for my concurrence in such 
 dissolution. You also, on behalf of said committee, request 
 me to indicate the time, place and mode in which it will 
 please me to meet the committee, and hear their views on 
 the subject. 
 
 Having already heard statements from two gentlemen of 
 St. Peter’s, in a recent visit which they made to me, and also 
 stated my views to them, I do not perceive tlie necessity of a 
 personal conference with the committee. In one of the reso¬ 
 lutions passed on May 1st, the proprietors declare that, in 
 one resolution adopted in the annual Easter meeting, they 
 had “ no purpose of casting any imputation upon the charac¬ 
 ter of their Rector in any of his relations as a man, a clergy¬ 
 man, or a Christian,” and in the other resolution they wholly 
 disclaim “ any intention of imputing to the Rector any 
 wrong.” 
 
 This being the statement of the proprietors in regard to 
 the Rev. Mr. Rickman, I feel that I should do a great act of 
 injustice to him , by concurring with the action of the pro¬ 
 prietors. I therefore decline so doing. 
 
 I am very respectfully yours, 
 
 MAYTOY EASTBURX. 
 
 John Kilburn. 
 
97 
 
 APPEXDIX IV. 
 
 The case of the Rev. Libertus Van Bokkelen, D. D., 
 Rector of St. Timothy’s Church, Catonsville, Baltimore 
 county, Maryland. 
 
 On Easter Monday, 1871, an election was held in this 
 Church, for members of the Vestry. The result caused great 
 dissatisfaction in the Church, being brought about, as it was 
 alleged, by the votes of persons who were neither members 
 of nor communicants at that Church, and some of whom were 
 members of other churches. It was also alleged that some 
 of the Vestrymen elected were ineligible to the office for the 
 same reasons. On April 24tli, 1871, the Vestry met, and a 
 motion was offered proposing to declare the Rectorship of 
 St. Timothy’s Church vacant, on and after May 1st. This the 
 Rector ruled out of order, and declined to call the vote upon it. 
 The Register then demanded the yeas, to which some persons 
 responded. The nays were not called, nor was the result of 
 the vote declared, the persons present, and the Rector, leaving 
 the room instantly, without the formality of an adjournment. 
 It was alleged that this was the work of a Jew against 
 many in the congregation. On May 1st, 1871, the Register 
 and Wardens demanded of the Rector, the keys of the 
 Church, and all the Church property in his hands. This 
 demand he refused to comply with, and stated that he could 
 not recognize the right to interfere with his duty as a settled 
 Rector, nor did he believe them to represent the will of the 
 congregation, by which, clearly expressed, he was ready to 
 abide. On this same day, a meeting of the congregation was 
 held, at which the Rector stated the above facts, and ap¬ 
 pealed to them to know their will. It was by them unani¬ 
 mously 
 
 Resolved, That the congregation of St. Timothy’s Church, 
 approve and endorse the action of their Rector, in refusing 
 to give up the keys of the Church, or to relinquish his con¬ 
 trol over any portion of the Church property, committed to 
 
98 
 
 his cave; and we direct him to retain possession of the same 
 as heretofore. 
 
 Also, resolved , That we recognize him as the Rector of St. 
 Timothy’s Church, and approve his decision to continue the 
 discharge of the duties of his office, and advise him not to 
 regard the action of persons who do not represent our will, 
 and, by their conduct, prove themselves not to he exponents 
 of the wishes or interests of the Church. 
 
 It ivas also resolved , That a committee he appointed to lay 
 all the facts before the Bishop of the Diocese, and to ask his 
 interposition and paternal counsel. 
 
 The Vestry also prepared a statement of the case, and the 
 action taken by them, and submitted it to the Bishop. 
 
 The Bishop replied to their communication as follows: 
 
 Madison Square, May 10,1871. 
 
 David Fowler, Esq., 
 
 My Dear Sir :— I have given my best attention to the 
 paper bearing your signature, with others, which I yesterday 
 received through the kind attention of Mr. F. TV Brune, and 
 about which you and I have had some conversation at our 
 casual meeting: in the street. 
 
 Remembering the tenor of remarks which then fell from 
 you, I know that you will be surprised to learn, that I find 
 your case less strongly put, as regards numbers, in your state¬ 
 ments, than I had been led to expect by the partial investiga¬ 
 tion I had already made. 
 
 Of the proceedings of the Vestry elected on Easter Mon¬ 
 day, I had also been informed, in exact accordance with your 
 account, and with rather more particularity. 
 
 But your account of the measures taken by those dissatis¬ 
 fied with the proceedings in question, is less accurate, both 
 as to their form and tendency, and as to their grounds. 
 
 I understand them to question the legality of the election 
 of the present claimants to be a Vestry—not on any ground 
 of irregularity or informality in the election, but on the 
 ground of insufficient qualification, both of some of the per¬ 
 sons admitted to vote, and of some of the persons chosen to 
 be Vestrymen. 
 
99 
 
 If either of the latter were an unhaptized, non-commu¬ 
 nicant person, or, being a baptized person, were at the time 
 of his election, actually a member of a Board of Trustees of 
 another religious denomination, such choice was undoubtedly 
 invalid, by the terms of the Constitution of St. Timothy’s 
 Church, as I understand them. 
 
 But it does not appertain to my office to decide the ques¬ 
 tion of legality; which I may, nevertheless, have a clear 
 opinion as to the question of propriety. 
 
 The opposition to the action of the body claiming to be 
 the Vestry, was based on grounds quite independent of the 
 question of legal election. The powers of the Vestry being 
 derived from the Constitution, does not extend to such ac¬ 
 tion, as you state the majority of the Vestry to have at¬ 
 tempted to take by a resolution for the removal of the Rector. 
 The position of that officer of the Church cannot be affected 
 by any action of the Vestry, subsequent to his election, 
 under the Constitution. 
 
 It is a consequence of the powerlessness of the Vestry to re¬ 
 move a Rector, that no action of that body can effect the 
 right of a Rector to receive all contributions for his support, or 
 of individual members of the congregation to make and collect 
 such contributions. Any resolution of the Vestry about 
 contract with the Rector, can only affect the liability of the 
 body as a Corporation. 
 
 The occupation of a Rectory is a consequence of the tenure 
 of Rectorship, unless stipulation to the contrary was made 
 and agreed to at the time of election. 
 
 On these grounds I understand the opponents of your 
 measures to base their determination to continue the recog¬ 
 nition of the present incumbent of St. Timothy’s Church as 
 the lawful Rector, entitled to the occupancy of the Rectory, 
 and the receipt of all contributions made for the support of 
 the ministry in the Church, and the exercise of all canonical 
 functions and rights pertaining to the Rector’s office. 
 
 As at present informed, I cannot regard their determina¬ 
 tion otherwise than as well taken. 
 
 I think it right, in this connection, to state to you that 
 after considering a memorial presented to the Rev. Dr. Van 
 
100 
 
 Bokkelen, with the signatures of a larger number of the 
 members of the congregation of St. Timothy’s Church than 
 are claimed to be disposed to concur in your statement, and 
 conferring upon the subject of its contents and signatures 
 with the highlyr espectable delegation, which laid it before 
 me, I deemed myself bound to give my official opinion un¬ 
 favorably in relation to any proposal of resignation of the 
 Rectorship. 
 
 As informed both by that document and conference, and 
 by the remarkable extent to which I find them corroborated 
 by the contents of your statement, ! cannot but be of opin¬ 
 ion that the Rector of St. Timothy’s owes it to the rights of 
 the majority of the congregation for which he ministers, and 
 to his own obligation to maintain inviolate the established 
 order o- the Church of which he is a Minister, not to forsake 
 his position without other and more sufficient grounds for 
 vacating it than have as yet been made apparent. 
 
 Permit me, in conclusion, to take the liberty of suggest¬ 
 ing, that if the numerous and respectable body of persons, 
 attested in the list appended to your document to be ready 
 and desirous to become pew-holders in St. Timothy’s Church, 
 but unable to do so for want of harmony with Dr. Van 
 Bokkelen and his friends, should be found able and willing 
 to unite in the support of ministrations more agreeable to 
 their own sense of need and fitness, they are amply sufficient 
 to organize, under leave of the Convention of the Diocese, 
 a congregation, in which it would he in their power to regulate 
 matters in accordance with their own views, while the rapidly 
 increasing population and prosperity of that part of Balti¬ 
 more county, would make the provision of an additional 
 Church so set on foot, highly seasonable and commendable, 
 provided the discretion to be expected were exercised in the 
 choice of a locality. 
 
 1 am, dear sir, with affectionate regard, 
 
 Your faithful friend and servant, 
 WILLIAM R. WHITINGIIAM, 
 Bishop of Maryland. 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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