Charles Martin Scanlan

“ However, there must be no abuse of these parental rights, as the child also has rights that even a parent can not infringe. Therefore, the State may require a reasonable opportunity for the education of every child; and if the parent can not give it on account of his poverty, it is in the power of the State to take his child in charge and furnish him an education. The right of the State to make laws requiring a parent to send his child to school between certain ages, as from four to twenty-one years, is well settled. ”

“ Schoolmaster, Authority.—Although a schoolmaster has in general no right to punish a pupil for misconduct after the dismissal of the school for the day and the return of the pupil to his home, yet he may on the pupil's return to school punish him for any misbehavior, though committed out of school, which has a direct and immediate tendency to injure the school and to subvert the master's authority. The fact that the master acted in good faith will not excuse him from damages for the punishment of a scholar where the punishment is clearly excessive and unnecessary. ”

“ Creed, Factions, Property, Management.—The supreme court exercises no ecclesiastical jurisdiction, but accepts what the highest ecclesiastical authority in each church promulgates as the faith and practice of that church, and will not determine for itself what that faith or creed is in order to establish the rights of respective factions in the church to the church property. ”

“ Definitions, Minor.—Excommunication, as construed in law, is the official announcement by the superior authority of the termination of membership in a religious body and the forfeiture of spiritual privileges of the church. It is one of the methods of discipline in the nature of expulsion from membership in a fraternity, and the fact of expulsion from a church is conclusive proof that the person expelled is not a member of such church. ”

“ The term religious society may with propriety be applied in a certain sense to a church as that of religious association, religious union, or the like; yet in the sense church was and is used in our law, it is synonymous with parish or precinct and designates an incorporated society created and maintained for the support and maintenance of public worship. In this, its legal sense, a church is not a religious society. It is a separate body formed within such parish or religious society whose rights and usages are well known and to a great extent defined and established by law.”24
[pg 023] 21. ”

“ To insure harmony and good order, every Church should obey the laws of the country; but if any law should impose upon the rights of the Church in any way, the ruling authorities, the cardinal and bishops, if the wrong is national, should unite in a petition to the United States Congress, clearly stating the grievance and asking for its redress.1 If the grievance should be within a State, the bishop or bishops of the State should present the matter to the Legislature of the State. ”

“ Will, Forfeiture.—The provision in a will or deed that land shall be used for purposes of a certain church, may create a trust for the benefit of the church only and not a condition the breach of which would work a forfeiture.510 When a condition is put in a deed that it shall be forever used as a burial ground for the interment of bodies, it is doubtful whether the grantor and grantee together may change the uses of the property. ”

“ Infancy, Manumission, Marriage.—At common law a person is an infant until he is twenty-one years of age. Statutes have modified that rule so that girls in some States, and both girls and boys in others, may contract marriage at an earlier age without the parental consent. Generally, an infant can not contract marriage without the consent of the living parent or guardian unless the child has been manumitted. ”

“ Worship, Discipline, Innovations.—The denomination itself, according to its rules and regulations, determines what services shall form a part of its public worship. The inferior authority in the church has no right to violate the discipline by innovations. ”

“ Ecclesiastical Corporations, Religious, Quasi-public Corporations.—Ecclesiastical corporations, in the sense in which the word is used in England, Germany, and France, are unknown to the United States, their places being supplied by religious societies or corporations considered as private bodies, in contradistinction to public or quasi-public corporations, such as towns, villages, cities, counties, and state. Therefore, the law of private corporations applies to religious societies and churches. ”

“ By-Laws.—By-laws of the different religious organizations differ widely, from the decrees of the great councils of the Catholic Church down to the vote of the congregation of an independent denomination.
23. Church, Religious Society.—A church in one sense is more limited than a religious society; the latter comprehending [pg 024] all the members of the same faith. Even in the Catholic Church we hear of the Church of France, the Coptic Church, etc., spoken of in this sense. And in a still more limited sense we use the word as a synonym for parish. ”

“ When a married couple do not unite in adopting a child, the consent of the non-adopting spouse must be obtained. Also, if the child's parents are living, their consent is necessary unless they have lost their paternal rights by abandonment or divorce. [pg 196] The decree of adoption may be set aside for good cause. The adopted parent has all the rights over and duties toward the person of the adopted child that a natural parent has, including necessaries and religious training. Usually the child inherits from the adopted parents, but the adopted parents do not inherit from the child. ”

“ Local, Secular Matters.—There is still another division of superior and inferior authority: the local corporation or congregation has nothing whatever to do with the doctrinal or disciplinary functions of the Church; but has only such powers and authority with regard to secular matters as is provided by the laws of the State or conferred by the articles of organization, [pg 061] charter, and by-laws. Also, unless there is some other rule to the contrary, only the male members who are over twenty-one years of age, have a voice and vote in such corporation.156
85. ”

“ Trust, Evidence.—Without any trust being declared in writing, parol evidence can not be allowed to prove that the Catholic Church and parsonage is held in trust for the congregation by the bishop of the diocese, notwithstanding that the moneys for purchasing the lands and putting up such buildings were collected by subscriptions and contributions made to the priest in charge under the law, usage, and [pg 150] polity of the Roman Catholic Church.489 At common law land may be granted to pious uses before there is a grantee to take it. ”

“ Note, Trustees.—A church will not be bound by a note which was executed by two of its trustees and sent around to other trustees to sign it, where there was no vote of the board of trustees at an authorized meeting to borrow or to execute such note.295 A meeting of a board must be called as required by law or the by-laws of the organization, and in the absence of any such all members must be notified a reasonable time before the time fixed for holding the meeting. ”

“ Rules, Diocese.—One who buys the privilege of burying his dead in a cemetery acquires no general right of property, but only a right to use the grounds as a place of interment, and the rules governing a cemetery in force at the time the privilege is acquired measure the extent of the use. ”

“ Injunction, Closing Church, Paying Money, Disturbances.—A court of equity will issue an injunction against the trustees of a church from wrongfully closing it or keeping it closed even against a small minority.382 Church property vested in trustees of a religious body is held under trust and a court of equity has jurisdiction to enforce the trust.383 A court of equity may restrain the trustees of a church from paying money to a duly deposed minister.384 But a court of equity will not interfere to quell religious disturbances when no question as to property or civil rights is involved. ”

“ Mortgage or Sale, Notice, Consent.—Whenever there is to be a mortgage or sale of the church property, if it is to be done by the corporation, it must be done strictly in accordance with the charter and laws of the corporation, and if those do not provide therefor, every member should receive a reasonable notice to attend a meeting of the congregation and the question should be submitted to such meeting and a vote taken thereon. ”

“ And the mere fact that the maternal relatives who have had the care of the child from its birth have become attached to it and desire to continue to care for it and are able to secure it better advantages than its parent, does not render the parent unsuitable to have its care and custody within the meaning of the statute. ”

“ Congregation, Insubordinate, Discipline.—The male members of a congregation are invested with no visitorial or controling power, but only such authority as is given under the laws of incorporation.169 [pg 065] Where an inferior organization, as a congregation, refuses to receive a clergyman appointed by the bishop, it is an act of insubordination to the ecclesiastical authority of the Church and in violation of its discipline, which authorizes the issuing of a peremptory mandamus commanding them to admit the clergyman.170
91. ”

“ Where there is no established church, the synod or bishop is the superior authority. Thus decisions of our courts usually apply to all churches alike.
82. Roman Catholic Church, Pope, Bishops, Delegated.—In the Roman Catholic Church the superior authority is first in the Pope and secondly in the other bishops. This superior authority is graded and some of it may be delegated, as in case of a Papal delegate. But the general rule that delegated authority can not be again delegated by the delegate without special authority applies to church matters. ”

“ The bishop may make laws for his diocese, subject to the limitation of the general doctrine and discipline of the Church. He has original jurisdiction of all causes arising in his diocese, and may decide them in the first instance and inflict such penalties, suspension, or excommunication, in accordance with the canons of the Church, as he deems fit. The clergy are subject to his orders and discipline according to the canon law. ”

“ Funeral Expenses.—Witnesses' opinions as to the reasonable amount for burial or as to the cost of a funeral being reasonable, are not binding on a court or jury. The station of a man, the property that he leaves, the life that he has followed, all should be considered by the court. The whims and notions of societies and others are of minor consideration. ”

“ Doubt, Legal Rights.—The foregoing rule has some doubt cast on it in Delaware and Massachusetts. The investigation of a dispute between members of a church by a committee according to church regulations, consented to by the parties, in which both take part, can have no effect on their legal rights. If the State law provides for cases of the kind, it is superior and must be submitted to. Also, an award or proceeding of a committee is not evidence for or against either party. ”

“ Society, Foreign Language, Independent.—The formation of a society distinct from the rest of the congregation for the purpose of instruction in a portion of the doctrine of the same church in a foreign language is not a separation from the congregation, although it has its own minister and officers.224 Where an independent congregation of one denomination votes unanimously to go over to another denomination, and the title to the church property is in the parish corporation, the seceders take with them the church property.225
125. ”

“ Business, Religious Service.—A church organization has the legal right to make any contract concerning its own affairs that is not prohibited by its by-laws or its charter, subject to all laws of legal contracts in the business world. ”

“ Free Church, Seats, Lease.—The trustees of a free church may assign seats and forcibly remove one from a seat without authority.454 Where a pew is real estate, a pewholder may acquire the right to it by prescription in the usual way.455 Where pews are not rented and the members support the church by voluntary subscriptions, they have equal right to the occupancy of the pews. But where the church builds the pews and rents them, a man paying rent for a pew holds it under lease in the nature of a lease to real estate. ”

“ Ballot, Hand Vote.—The vote of a religious society at an annual meeting for the election of officers that the officers shall always be chosen by ballot, does not vitiate an election of officers by hand vote at a subsequent annual meeting. ”

“ Thomas Jefferson and James Madison were probably the strongest opponents of the scheme, and outside of the great Carroll of Carrollton, they were the most earnest advocates of religious tolerance. The necessity for the fathers of this republic to be united, and their being unable to unite upon any church, caused the idea of an established church to be eliminated. ”

“ Money, Control.—Money raised by a Catholic congregation for the purpose of building a church does not come under the absolute control of the bishop or priest, although put into the hands of the latter for safe keeping. ”

“ Charges, Fair Trial, Hearsay Evidence.—When a clergyman or officer is to be removed or a member of the congregation is to be excommunicated, it is necessary to fully state the charges against him and give him an opportunity for a fair trial according to the laws and rules of the religious society before rendering final judgment. ”

“ Also, the want of a sympathetic nature or cold reserve in a parent or the fact that he is away on business a great deal of the time, is not sufficient to render him unsuitable. But the right of the father may be lost or forfeited by his ill-conduct, gross ill-treatment, cruelty, or abandonment, or when his conduct and life are such as are injurious to the morals and interest of his child. When the father dies or forfeits his right for reasons already given, the mother, if alive, succeeds to all those rights, subject, however, [pg 193] to the same conditions as the father. ”