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the trial the defendant introduced evidence to prove, and contended that he did prove, all the facts alleged in his publication. The court charged the jury that the burden was upon the defendant to show that the matter charged to be libellous was published with good motives and for justifiable ends; that malice is the wilful doing of an unlawful act, and does not necessarily imply personal ill-will towards the person libelled. The defendant excepted to the ruling of the court as applied to the facts proved, contending that, having proved the truth of all the facts alleged in the libel, and the publication being in reference to an illegal traffic, a public nuisance, the jury should have been instructed that it was incumbent on the government to show that defendant's motives were malicious, in the popular sense of the word, as respects said Brown. By the court, Shaw, Ch. J. "The court are of opinion that the charge of the judge of the Common Pleas was strictly correct. If the publication be libellous, that is, be such as to bring the person libelled into hatred, contempt, and ridicule amongst the people, malice is presumed from the injurious act. But by Rev. Stat. c. 133, § 6, 'in every prosecution for writing or publishing a libel, the defendant may give in evidence, in his defence upon the trial, the truth of the matter contained in the publication charged as libellous provided, that such evidence shall not be deemed a sufficient justification, unless it shall be further made to appear, on the trial, that the matter charged to be libellous was published with good motives and for justifiable ends.' Nothing can be more explicit. The judge, therefore, was right in directing the jury that, after the publication had been shown to

have been made by the defendant, and to be libellous and malicious, the burden was on the defendant, not only to prove the truth of the matter charged as libellous, but likewise that it was published with good motives and for justifiable ends. We are also satisfied that the judge was right in s description or definition of legal malice, that it is not malice in its popular sense; viz., that of hatred and ill-will to the party libelled, but an act done wilfully, unlawfully, and in violation of the just rights of another." And yet it would seem as if, conceding the facts published to be true, the jury ought to have found the occasion a proper one for correcting such indecent conduct by public exposure. See further on this subject, Regina v. Newman, 1 El. & Bl. 268 and 558; s. c. 18 Eng. L. & Eq., 113; Barthelemy v. People, 2 Hill, 248; State v. White, 7 Ired. 180; State v. Burnham, 9 N. H. 34; Cole v. Wilson, 18 B. Monr. 212; Hagan v. Hendry, 18 Md. 177; Bradley v. Heath, 12 Pick 163; s. c. 22 Am. Dec. 418; Snyder v. Fulton, 34 Md. 128; s. c. 6 Am. Rep. 614; Commonwealth v. Snelling, 15 Pick. 337. The fact that the publication is copied from another source is clearly no protection, if it is not true in fact. Regina v. Newman, ubi sup. Compare Saunders v. Mills, 6 Bing. 213; Creevy v. Carr, 7 C. & P. 64; Sullings v. Shakespeare, 46 Mich. 408. Neither are the motives or good character of the defendant, if he has published libellous matter which is false. Barthelemy v. People, 2 Hill, 248; Commonwealth v. Snelling, 15 Pick. 337; Wilson v. Noonan, 27 Wis. 598. Where the truth is relied upon as a defence, the charge should appear to be true as made. Whittemore v. Weiss, 33 Mich. 348; Palmer v. Smith, 21 Minn. 419.

CHAPTER XIII.

OF RELIGIOUS LIBERTY.

A CAREFUL examination of the American constitutions will disclose the fact that nothing is more fully set forth or more plainly expressed than the determination of their authors to preserve and perpetuate religious liberty, and to guard against the slightest approach towards the establishment of an inequality in the civil and political rights of citizens, which shall have for its basis only their differences of religious belief. The American people came to the work of framing their fundamental laws after centuries of religious oppression and persecution, sometimes by one party or sect and sometimes by another, had taught them the utter futility of all attempts to propagate religious opinions by the rewards, penalties, or terrors of human laws. They could not fail to perceive, also, that a union of Church and State, like that which existed in England, if not wholly impracticable in America, was certainly opposed to the spirit of our institutions, and that any domineering of one sect over another was repressing to the energies of the people, and must necessarily tend to discontent and disorder. Whatever, therefore, may have been their individual sentiments upon religious questions, or upon the propriety of the State assuming supervision and control of religious affairs under other circumstances, the general voice has been, that persons of every religious persuasion should be made equal before the law, and that questions of religious belief and religious worship should be questions between each individual man and his Maker. Of these questions human tribunals, so long as the public order is not disturbed, are not to take cognizance, except as the individual, by his voluntary action in associating himself with a religious organization, may have conferred upon such organization a jurisdiction over him in ecclesiastical matters.1

1 The religious societies which exist in America are mere voluntary societies, having little resemblance to those which constitute a part of the machinery of government in England. They are for the most part formed under general laws,

which permit the voluntary incorporation of attendants upon religious worship, with power in the corporation to hold real and personal estate for the purposes of their organization, but not for other purposes. Such a society is "a volun

These constitutions, therefore, have not established religious toleration merely, but religious equality; in that particular being

tary association of individuals or families, united for the purpose of having a common place of worship, and to provide a proper teacher to instruct them in religious doctrines and duties, and to administer the ordinances of baptism, &c. Although a church or body of professing Christians is almost uniformly connected with such a society or congregation, the members of the church have no other or greater rights than any other members of the society who statedly attend with them for the purposes of divine worship. Over the church, as such, the legal or temporal tribunals of the State do not profess to have any jurisdiction whatever, except so far as is necessary to protect the civil rights of others, and to preserve the public peace. All questions relating to the faith and practice of the church and its members belong to the church judicatories, to which they have voluntarily subjected themselves.

But,

as a general principle, those ecclesiastical judicatories cannot interfere with the temporal concerns of the congregation or society with which the church or the members thereof are connected." Walworth, Chancellor, in Baptist Church v. Wetherell, 3 Paige, 296, 301; s. c. 24 Am. Dec. 223. See Ferraria v. Vasconcellos, 31 Ill. 25; Lawyer v. Cipperly, 7 Paige, 281; Shannon v. Frost, 3 B. Monr. 253; German, &c. Cong. v. Pressler, 17 La. Ann. 127; Sohier v. Trinity Church, 109 Mass. 1; Calkins v. Cheney, 92 Ill. 463. Equity will not determine questions of faith, doctrine, and schism unless necessarily involved in the enforcement of ascertained trusts. Fadness v. Braunborg, 73 Wis. 257. Such a corporation is not an ecclesiastical, but merely a private civil corporation, the members of the society being the corporators, and the trustees the managing officers, with such powers as the statute confers, and the ordinary discretionary powers of officers in civil corporations. Robertson v. Bullions, 11 N. Y. 243; Miller v. Gable, 2 Denio, 492. Compare Watson v. Jones, 13 Wall. 679. The church connected with the society, if any there be, is not recognized in the law as a distinct entity; the corporators in the

society are not necessarily members thereof, and the society may change its government, faith, form of worship, discipline, and ecclesiastical relations at will, subject only to the restraints imposed by their articles of association, and to the general laws of the State. Keyser v. Stansifer, 6 Ohio, 363; Robertson v. Bullions, 11 N. Y. 243; Parish of Bellport v. Tooker, 29 Barb. 256; s. c. 21 N. Y. 267; Burrel v. Associated Reform Church, 44 Barb. 282; O'Hara v. Stack, 90 Pa. St. 477; Warner v. Bowdoin Sq. Bapt. Soc., 148 Mass. 400. In New Hampshire the signers of the articles of association and not the pew-owners are the corporators. Trinitarian Cong. Soc. v. Union Cong. Soc. 61 N. H. 384. See also Holt v. Downs, 58 N. H. 170. An action will not lie against an incorporated ecclesiastical society for the wrongful expulsion of a member by the church. Hardin v. Baptist Church, 51 Mich. 137; Sale v. First Baptist Ch., 62 Iowa, 26. The courts of the State have no general jurisdiction and control over the officers of such corporations in respect to the performance of their official duties; but as in respect to the property which they hold for the corporation they stand in posi tion of trustees, the courts may exercise the same supervision as in other cases of trust. Ferraria v. Vasconcellos, 31 Ill. 25; Smith v. Nelson, 18 Vt. 511; Watson v. Avery, 2 Bush, 332; Watson v. Jones, 13 Wall. 679; Hale v. Everett, 53 N. H. 9; Boxwell v. Affleck, 79 Va. 402; First Ref. Pres. Ch. v. Bowden, 14 Abb. N. C. 356. Where a bishop holds property in trust, upon his insolvency courts will prevent the diversion of the property to his creditors. Mannix v. Purcell, 19 N. E. Rep. 572 (Ohio). But the courts will interfere where abuse of trust is alleged, only in clear cases, especially if the abuse alleged be a departure from the tenets of the founders of a charity. Happy v. Morton, 33 Ill. 398. See Hale v. Everett, 53 N. H. 9. It is competent to form such societies on the basis of a community of property. Scribner v. Rapp, 5 Watts, 311; s. c. 30 Am. Dec. 327; Gass v. Wilhite, 2 Dana, 170; s. c. 26 Am. Dec. 446; Waite v. Merrill, 4

far in advance not only of the mother country, but also of much of the colonial legislation, which, though more liberal than that

Me. 102; s. c. 16 Am. Dec. 238. The articles of association will determine who may vote when the State law does not prescribe qualifications. State v. Crowell, 9 N. J. 391. Should there be a disruption of the society, the title to the property will remain with that part of it which is acting in harmony with its own law; seceders will be entitled to no part of it. McGinnis v. Watson, 41 Pa. St. 9; M. E. Church v. Wood, 5 Ohio, 283; Keyser v. Stansifer, 6 Ohio, 363; Shannon v. Frost, 3 B. Monr. 253; Gibson v. Armstrong, 7 B. Monr. 481; Hadden v. Chorn, 8 B. Monr. 70; Ferraria v. Vasconcellos, 23 Ill. 456 ; Fernstler v. Siebert, 114 Pa. St. 196; Dressen v. Brameier, 56 Iowa, 756. And this even though there may have been a change in doctrine on the part of the controlling majority. Keyser v. Stansifer, 6 Ohio, 363. See Petty v. Tooker, 21 N. Y. 267; Horton v. Baptist Church, 34 Vt. 309; Eggleston v. Doolittle, 33 Conn. 396; Miller v. English, 21 N. J. 317; Niccolls v. Rugg, 47 Ill. 47; Kinkead v. McKee, 9 Bush, 535; Baker v. Ducker, 79 Cal. 365. Whichever body the ecclesiastical authorities recognize as the church, whether it contains a majority of members or not, is entitled to the property. Gaff v. Greer, 88 Ind. 122; White Lick Meeting v. White Lick Meeting, 89 Ind. 136. Peculiar rights sometimes arise on a division of a society; as to which we can only refer to Reformed Church v. Schoolcraft, 65 N. Y. 134; Kinkead v. McKee, 9 Bush, 535; Niccolls v. Rugg, 47 Ill. 47; Smith v. Swormstedt, 16 How. 288; Henry v. Deitrich, 84 Pa. St. 286. The administration of church rules or discipline the courts of the State do not interfere with, unless civil rights become involved, and then only for the protection of such rights. Hendrickson v. Decow, 1 N. J. Eq. 577; Harmon v. Dreher, Speers Eq. 87; Dieffendorf v. Ref. Cal. Church, 20 Johns. 12; Wilson v. Johns Island Church, 2 Rich. Eq. 192; Den v. Bolton, 12 N. J. 206; Baptist Church v. Wetherell, 3 Paige, 301; German Reformed Church v. Seibert, 3 Pa. St. 282; State v. Farris, 45 Mo. 183; McGinnis v. Watson, 41 Pa. St. 9; Watson v. Jones, 13 Wall. 679; Chase

v. Cheney, 58 Ill. 509; Calkins v. Cheney, 92 Ill. 463; Gartin v. Penick, 5 Bush, 110; Lucas v. Case, 9 Bush, 297; People v. German, &c. Church, 53 N. Y. 103; Grosvenor v. United Society, 118 Mass. 78; State v. Hebrew Congregation, 30 La. Ann. 205; s. c. 33 Am. Rep. 217; State v. Bibb St. Ch., 84 Ala. 23; Livingston v. Rector, &c., 45 N. J. L. 230; Richardson v. Union Cong. Soc., 58 N. H. 187; Matter of First Pres. Soc., 106 N. Y. 251; Fadness v. Braunborg, 73 Wis. 257. Decision of church tribunal as to the election of a deacon is conclusive. Atty.-Gen. v. Geerlings, 55 Mich. 562. But trustees may be prevented by the courts from continuing to employ a minister who has been deposed: Isham v. Fullager, 14 Abb. N. C. 363; see Hatchett v. Mt. Pleasant Ch., 46 Ark. 291; from closing a church building: Isham v. Trustees, 63 How. Pr. 465; and may be compelled to open it to a regularly assigned pastor. People v. Conley, 42 Hun, 98; Whitecar v. Michenor, 37 N. J. Eq. 6. In a congregationally governed church a minority of officers may be enjoined from putting in an organ against the wish of the majority of the officers and members: Hackney v. Vawter, 39 Kan. 615; and a minority of members from excluding the majority from using the church. Bates v. Houston, 66 Ga. 198. But an excommunication will not be allowed to affect civil rights. Fitzgerald v. Robinson, 112 Mass. 371. As to the nature and effect of the contract between the society and the minister, see Avery r. Tyringham, 3 Mass. 160; s. c. 3 Am. Dec. 105 and note; Perry v. Wheeler, 12 Bush, 541; East Norway Lake Ch. v. Froislie, 37 Minn. 447; Downs v. Bowdoin Sq. Bapt. Soc., 149 Mass. 185; West v. First Pres. Ch., 42 N. W. Rep. 922 (Minn.). Under New York statute unless a minister's salary is fixed in a certain way the church is not liable. Landers v. Frank St. M. E. Ch., 97 N. Y. 119. The civil courts may intervene as to a breach of contract for salary. Bird v. St. Mark's Church, 62 Iowa, 567. As to what is extra vires for such a society, see Harriman v. Baptist Church, 63 Ga. 186; s. c. 36 Am. Rep. 117.

of other civilized countries, nevertheless exhibited features of discrimination based upon religious beliefs or professions.1

Considerable differences will appear in the provisions in the State constitutions on the general subject of the present chapter; some of them being confined to declarations and prohibitions whose purpose is to secure the most perfect equality before the law of all shades of religious belief, while some exhibit a jealousy of ecclesiastical authority by making persons who exercise the functions of clergyman, priest, or teacher of any religious persuasion, society, or sect, ineligible to civil office; 2 and still others show some traces of the old notion, that truth and a sense of duty do not consort with scepticism in religion. There are excep

1 For the distinction between religious toleration and religious equality, see Bloom v. Richards, 2 Ohio St. 389; Hale v. Everett, 53 N. H. 1. And see Madison's views, in his Life by Rives, Vol. I. p. 140. It was not easy, two centuries ago, to make men educated in the ideas of those days understand how there could be complete religious liberty, and at the same time order and due subordination to authority in the State. Coleridge said that toleration was impossible until indifference made it worthless." Lowell, "Among my Books," 336. Roger Williams explained and defended his own views, and illustrated the subject thus: "There goes many a ship to sea, with many hundred souls in one ship, whose weal and woe is common, and is a true picture of a commonwealth, or human combination or society. It hath fallen out sometimes that both Papists and Protestants, Jews and Turks, may be embarked in one ship; upon which supposal I affirm that all the liberty of conscience I ever pleaded for turns upon these two hinges that none of the Papists, Protestants, Jews, or Turks be forced to come to the ship's prayers or worship if they practise any. I further add that I never denied that, notwithstanding this liberty, the commander of this ship ought to command the ship's course, yea, and also command that justice, peace, and sobriety be kept and practised, both among the seamen and all the passengers. If any of the seamen refuse to perform their service, or passengers to pay their freight; if any refuse to help, in person or purse, towards the common charges or defence; if any refuse to obey the common laws

and orders of the ship, concerning their common peace and preservation; if any shall mutiny and rise up against their commanders and officers; if any should preach or write that there ought to be no commanders or officers, because all are equal in Christ, therefore no masters nor officers, no laws nor orders, no corrections nor punishments; I say I never denied but in such cases, whatever is pretended, the commander or commanders may judge, resist, compel, and punish such transgressors according to their deserts and merits." Arnold's History of Rhode Island, Vol. I. p. 254, citing Knowles, 279, 280. There is nothing in the first amendment to the federal Constitution which can give protection to those who practise what is forbidden by the statute as criminal, e. g. bigamy, on the pretence that their religion requires or sanctions it. Reynolds v. United States, 98 U. S. 145.

2 There are provisions to this effect, more or less broad, in the Constitutions of Tennessee, Delaware, Maryland, and Kentucky.

8 The Constitution of Pennsylvania provides "that no person who acknowledges the being of God, and a future state of rewards and punishments, shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this Commonwealth." Art. 1, § 4.- The Constitution of North Carolina: "The following classes of persons shall be disqualified for office: First: All persons who shall deny the existence of Almighty God," &c. Art. 6, § 5.The Constitutions of Mississippi and South Carolina: "No person who denies

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