Boyles v. Roberts

121 S.W. 805, 222 Mo. 613, 1909 Mo. LEXIS 118

• Court: Supreme Court of Missouri
• Decided: October 22, 1909
• Status: Published

Opinions

GRAVES, J.

This is one of the numerous cases in the different States which resulted from what is called a union between the Presbyterian Church in the United States of America and the Cumberland Presbyterian Church, alleged to have been consummated in the year 1906. Both were voluntary unincorporated religious societies. The Presbyterian Church in the United States of America has for its foundation the Westminster Confession of Faith, known alike to profane and ecclesiastical history. In what was known as the great revival of 1800, which spread over Kentucky, Tennessee and other portions of the South, and in which Dr. McGready was one of the leading spirits, so great was the demand for the Gospel, that the more educated and intelligent laymen, of devout character, were called and did preach. This revival, as we gather from the early history of the Cumberland Presbyterian Church, was opposed by many of the straighter-laced Presbyterians, and the same opposed the uneducated ministers whoi in the course of this great revival had buckled on their armor and hied to the field of action. In Cumberland Presbytery the “Revival Party,” as it was called, was strongly in the ascendency and this Presbytery had dared to send forth some of their educated laity to preach. In 1805, the Synod of Kentucky, under whose jurisdiction was the Cumberland Presbytery, appointed a commission of ten ministers and six elders to meet at Gasper River Meeting House and investigate the proceedings of Cumberland Presbytery. The “Anti-Revival Party” was largely in the majority in the Synod, and from this majority the investigators and triers of fact were selected. The charges against Cumberland Presbytery were, (1) that such Presbytery had licensed men to preach and ordained others to preach and administer the church ordinances contrary to the rules of the church, and (2) that such Presbytery did not require such men so licensed and ordained to adopt the Presbyterian Confession of Faith further than they believed it to be the Word of God. As a result of this commission many preachers and licentiates were' silenced from preaching. Shortly thereafter, in 1810, three ministers of the Presbyterian Church, who were not in accord with the Westminster Confession of Faith, organized the new church. They pointed out the doctrinal differences which led to their action, which differences it may become necessary to note in detail later. From an humble beginning the Cumberland Presbyterian Church grew and continued to grow, until in 1906 it had to its credit 114 Presbyteries, 17 Synods, a General Assembly, 1,514 ordained ministers, 9,614 ordained elders, 3,914 ordained deacons, 2,869 congregations, and a total membership of 185,212. One of these congregations was located at Warrensburg, Missouri, and a schism therein has occasioned the case now before us. The petition in the case, which is one for injunction, sets out the steps of the alleged union of the two churches. Plaintiffs, who sue for themselves and in behalf of all the members of the Presbyterian Church in the United States of America, and especially for those members who were formerly members of the Cumberland Presbyterian Church at Warrensburg, Missouri, ■ ask that the defendants be enjoined and restrained from certain things, which are better stated in their prayer for relief, thus:

“And further pray the Court to enjoin the Ministers, officers and members of the Cumberland Presby-' terian Church, at Warrensburg, Missouri, who repudiate and renounce the action of the General Assembly and the Presbyteries of said churches in agreeing to and forming a union with the Presbyterian Church in the United States of America, or who renounce the United Church resulting from said union, known as the Presbyterian Church in the United States of America, together with all their associates, confederates, agents and representatives, and that said persons be enjoined from doing the following things, to-wit:

“First. From interfering with or molesting the Pastors, Elders, Deacons, Church Members or other Ecclesiastical Agencies who adhere to and recognize said United Church, in the use, enjoyment, possession and exclusive control of all houses of worship, parsonages, endowment funds or other property or effects which belong to the Cumberland Presbyterian Church or any of its Boards, Committees, Judicatories, Congregations or Institutions, or are held in trust for them.

“Second. From using the name of the Cumberland Presbyterian Church as the name or any part of the name of any of their Organizations, Congregations, Sessions, Presbyteries, Synods, General Assemblies, Boards, Committees or other Ecclesiastical Judicatories, Institutions or Agencies, in connection with the claim on the part of said Judicatory, Organization or Agency, or any one acting for it, that it is a Judicatory Organization or Agency of the Original Cumberland Presbyterian Church as organized in 1810, as described in said deeds.

“And plaintiffs pray for such other and further relief ás the Court in equity and good conscience may find them entitled to.”

The real bone of contention is three lots of ground upon which is a church house, which was deeded to trustees for the Cumberland Presbyterian Church of Warrensburg, Missouri. The petition is long, as also is the answer thereto. By answer, the defendants, among other things, deny the validity of the alleged union, and claim that by reason thereof, and that by reason of their deeds they are entitled to the property.

Other matters, of both petition and answer, may become pertinent later and if so will be adverted to in the course of the opinion.

Going further into the historical part of the case, it appears that in 1903 the Presbyterian Church, U. S. A., amended its Confession of Faith by some additions thereto, and it also undertook to declare what certain other portions, although written in plain English, meant. Shortly thereafter, through overtures, the two churches appointed committees upon union. These committees devised what they called a scheme or plan of union and re-union. Why both words union and reunion were used will only appear in the shades of the background, and then only to the careful thinker. The Cumberland Presbyterian Church was a separate and distinct entity and always had been. Its religious tenets were different and its church polity different. As a church entity it never had been a part of the other church. The joint report of this committee was submitted and voted upon by the general assembly of each of the two churches. It will only he necessary to note the action of the Cumberland Presbyterian Church in detail.

The courts or judicatories of the Cumberland Presbyterian Church consisted first, of a church session, made up of the minister and the ruling elders, the latter chosen by the congregation; secondly, the Presbytery made up of the ministers and certain selected ruling elders for the several congregations in a certain district; thirdly, a Synod, made up of three or more presbyteries; and, fourthly, of a General Assembly. We have noted them in regular gradation beginning with the lowest. In 1904, this joint report was presented to the General Assembly of the Cumberland Presbyterian Church. The material portion reads:

“Therefore, we cordially recommend to your respective general assemblies, that the reunion of the Presbyterian Church in the United States of America and the Cumberland Presbyterian Church be accomplished as soon as the necessary -steps can he taken, upon the basis hereinafter .set forth.

“1. The Presbyterian Church in the United States of America, whose-General Assembly met in the Immanuel Church, Los Angeles, Cal., May 21st, 1903, and the Cumberland Presbyterian Church, whose General Assembly met in the First Cumberland Church, Nashville, Tenn., May 21st, 1903, shall be united as one church under the name and style of the Presbyterian Church in the United States of America, possessing all the legal and corporate rights and powers which the separate churches now possess.

“2. The union shall be effected on the doctrinal basis of the Confession of Faith of the Presbyterian Church in the United States of America, as revised in 1903, and of its other doctrinal and ecclesiastical standards; and the Scriptures of the Old and New Testaments shall be acknowledged as the inspired word of God, the only infallible rule of faith and practice.

“3. Each of the Assemblies shall submit the foregoing Basis of Union to its Presbyteries, which shall be required to meet on or before April 30th, 1905, to express their approval or disapproval of the same by a categorical answer to this question:

‘ ‘ ‘ Do you approve of the reunion and union of the Presbyterian Church in the United States of America and the Cumberland Presbyterian Church on the following basis: The union shall be effected on the doctrinal basis of the Confession of Faith of the Presbyterian Church in the United States of America, as revised in 1903, and of its other doctrinal and ecclesiastical standards; and the Scriptures of the Old and New Testament shall be acknowledged as the inspired word of God, the only infallible rule of faith and practice?’

“Each Presbytery shall, before the 10th day of May, 1905, forward to the Stated Clerk of the Assembly with which it is connected, a statement of its vote on the said Basis of Union. ’ ’

Upon the incoming of this joint report, the following resolution was offered by Dr. Templeton in tbe General Assembly:

“Resolved, 1. That the foregoing Report and Supplemental Report of the Committee on Presbyterian Fraternity and Union, appointed by the General Assembly in 1903, be received and spread upon the minutes of this General Assembly, and that the included Joint Report on Union be adopted; and that the Basis of Union be and is recommended to the Presbyteries of the Cumberland Presbyterian Church for their approval or disapproval.

“Resolved, 2. That the Moderator and the Stated Clerk be instructed to submit the Basis of Union, contained in said report, to the Presbyteries of the Cumberland Presbyterian Church, in the usual constitutional manner, upon receiving official notification of the adoption of said Joint-Report on Union by the General Assembly of the Presbyterian Church in the United States of America.”

This resolution was adopted by a vote of 162 to 74, and was declared to be by the constitutional two-thirds vote. Upon a submission to the Presbyteries of the question to be categorically answered, set out above, it was found that 111 Presbyteries had returned their vote. Of these, 60 answered the question in the affirmative and 51 answered it in the negative. A summary of the vote in the 111 Presbyteries voting upon this question, shows that 691 ministers and 649 elders, or 1,340, voted for union, and 470 ministers and 1,007 elders, or total of 1,477, voted against union, so that whilst the question was answered in the affirmative by a majority of nine Presbyteries, it was answered in the negative by a majority of 137 votes of those ministers and elders who voted thereon. The Union was declared adopted.

In the General Assembly of the Cumberland Presbyterian Church for the year 1906, just after the resolution as to union and re-union was declared passed by the vote above mentioned, there was'a protest signed by a hundred of the commissioners, in which they charged the invalidity of the action upon many grounds not necessary here to state. The Assembly appointed a committee to answer the protest and after its answer was read, and some other business was transacted, the majority adjourned the Assembly sine die. Before this was done, however, the protestante gave notice that they would continue the work of the General Assembly under the rules, Confession of Faith and practice of the Cumberland Presbyterian Church. Pursuant to such notice the protestants did reorganize such Assembly, proceeded with their work and finally adjourned to a day and place named for the next meeting. From that time to this there has been a General Assembly under which were Synods, Presbyteries and Congregations, regularly meeting and adhering in the strict letter to the Cumberland Presbyterian Confession of Faith, as well as to the name. Now to the particular case.

The defendants in this case were within the jurisdiction of the Lexington Presbytery, and entered their protest to that body. In answer to their protest, they were, after kindly admonitions as to their spiritual welfare, notified that they had no standing in that judicatory and that the civil courts would not protect them in their alleged property rights, for that such Assembly in addition to advice from the attorneys of their respective boards, had taken the written opinion of seventeen lawyers and judges of courts, both Federal and State, and with one accord they held that the property interest of the Cumberland Presbyterian Churches had been so safeguarded as to have been safely transferred to the Presbyterian Church, U. S. A. Just who had the temerity to approach a judge of a court for a written opinion upon a disputed legal proposition, or what judges, both State and Federal, SO far forgot their high position as to give such opinion, we are not advised by the record. Suffice it to say that notwithstanding this reply, the defendants held possession of the property in dispute, and this action resulted.

-The temporary injunction was made permanent as to the property in question, but by the grace of the judge, nisi, the defendants were permitted to cling to the name Cumberland Presbyterians.

Prom this judgment involving title to this property and constitutional questions as well, the defendants in proper order and due time appealed to this court. This sufficiently states the case for a discussion of legal questions involved.

I.

An all-important preliminary question is as to what extent this, a civil court, can go into the questions raised in this case. As has been stated, there was a division in the Cumberland Presbyterian General Assembly when the union of the two churches was declared adopted. A very large minority of the commissioners, after having protested and given notice before final adjournment, immediately elected proper officers and proceeded with the General Assembly and adjourned it to a named time and place; and such General Assembly is going on under the Constitution of the Cumberland Presbyterian Church, with its Congregations, Presbyteries and Synods. There is also a division in the local congregation, some having gone over to the Presbyterian Church, U. S. A., and others remaining steadfast to the original organization. The question before us is to determine property rights in a case wherein there is a schism in a church organization from its highest to its lowest judicatory, as well as in its membership. Presbyterian disputes of this character are not new to this court. We have had them before. Respondents contend in effect that we have but to register the edict of the highest church judicatory, and by so doing pass all Cumberland Presbyterian property to the Presbyterian Church, U. S. A. Appellants contend that the action of the General Assembly was ultra vires and void.

In an early Presbyterian controversy, the case of Watson v. Garvin, 54 Mo. l. c. 377, this court said: “At the threshold of this inquiry, we are met with the startling proposition that, in cases like this, the judgments or decrees of ecclesiastical judicatories are final and conclusive, and that the civil courts have no authority in the premises, except to register these decrees and carry them into execution. It is to be regretted that loose expressions, by elementary writers, and also by judges in delivering their opinions, have given too much foundation for this false doctrine. Even the Supreme Court of the United States, in Watson v. Jones, 13 Wallace 679, gives prominence to this idea by making it the chief foundation of their opinion. That court seemed to think the judges not sufficiently learned in ecclesiastical law to pass on such questions, and that the ecclesiastical courts, being better qualified than themselves, ought to be allowed to be the exclusive judges. The civil courts are presumed to know all the law touching property rights; and if questions of ecclesiastical law, connected with property rights, come before them, they are compelled to decide them. They have no power to abdicate their own jurisdiction and transfer it to other tribunals. If they are not sufficiently advised concerning the questions that arise, it is their duty to make themselves acquainted with them, in all their bearings, and not to blindly register the decrees of tribunals having no jurisdiction whatever over property.”

The opinion recognized that there were certain church decisions or adjudications that it would not interfere with, not on the theory that such adjudications were in any way binding- upon this court, but on the theory that this court had no jurisdiction of the subject-matter involved in the cases. On this question we then said: “The true ground why civil courts do not interfere with the decrees of ecclesiastical courts, where no property rights are involved, is not because such decrees are final and conclusive, but because they have no jurisdiction whatever in such matters, and cannot take cognizance of them at all, whether they have been adjudicated or not by those tribunals. This principle forms the foundation of religious liberty in republican governments. The civil authorities have no power to pass or enforce laws abridging- the freedom of the citizen in this regard, and hence, in matters purely religious or ecclesiastical, the civil courts have no jurisdiction. A deposed minister or an ex-communicated member of a church cannot appeal to the civil courts for redress. They can look alone to their own judicatories for relief and must abide the judgment of their highest courts as final and conclusive. But when property rights are concerned, the ecclesiastical courts have no power to pass on them so as to bind the civil courts. If they expel a member from his church, and he feels himself aggrieved in his rights of property by the expulsion, he may resort to the civil courts, and they will not consider themselves precluded by the judgment of expulsion, but will examine into the case to see if it has been regularly made upon due notice, and if they find it to be duly made, they will let it stand; otherwise they will disregard it, and give the proper relief. In most cases, no doubt, the judgment will be found to be sufficiently regular to fix the status of the expelled member and to warrant the civil courts in denying the desired relief. ’ ’

Under a note to the case of Hendryx v. People’s United Church of Spokane, 4 L. R. A. (N. S.), 1154, the learned annotator thus speaks of the Watson case, supra: “It is apparent, therefore, that, unless there is some civil or property right involved so as to confer jurisdiction upon the civil court, the question as to the effect of a decision of the ecclesiastical tribunal cannot legitimately arise. The distinction is clearly drawn in the statement of the court in Watson v. Garvin, 54 Mo. 355, that the true ground why civil courts do not interfere with the decrees of ecclesiastical courts where no property rights are involved is not because such decrees are final and conclusive, but because the courts have no jurisdiction whatever in such matters, and cannot take cognizance of them at all, whether they have been adjudicated or not by those tribunals.”

In Prickett v. Wells, 117 Mo. l. c. 504, this court further said: “While it is true that the civil courts may not properly interfere with that part of church management which concerns the spiritual welfare and discipline of the members, yet, when rights of property are involved in controversies of this class, those courts cannot justly evade the exercise of such jurisdiction as is necessary to the determination and vindication of such rights.”

And to a like effect is Fulbright v. Higginbotham, 133 Mo. l. c. 677, whereat it is said: “It is well-settled law that the civil courts have and will exercise no jurisdiction to review the action of ecclesiastical bodies in matters relating purely to the faith and discipline of the church. It was for the congregation itself to determine whether these members held to doctrine that was contrary to that taught and held by the church, and to prescribe the rules of discipline. But the members of these bodies have the same right as those of other voluntary associations of persons formed for charitable and benevolent purposes, to seek the aid of civil courts to prevent a diversion of its property from the uses and trusts to which it was devoted, and to secure to the members the enjoyment of the rights of membership in respect to the use of the property. It therefore sometimes becomes necessary for the civil courts, for the purpose of determining property rights of members, to pass upon questions which are ecclesiastical in their nature. [State ex rel. v. Farris, 45 Mo. 183; Prickett v. Wells, 117 Mo. 503; Russie v. Brazzell, 128 Mo. 107.]”

In the case of Russie v. Brazzell, 128 Mo. l. c. 113, we said: “The question of this branch of the case is, did the revised confession, as requested by the members and adopted by the General Conference, so change the distinctive doctrines of the Church as to destroy its identity, and operate as a perversion of the trust under which the property in question was held? However embarrassing it may be, it becomes our duty to determine this question. The action was one of law. The question thus raised is one of fact, which was passed upon by the circuit court without declaration of law, and the conclusion reached is binding upon this court, unless the finding was clearly erroneous. [Mead v. Spalding, 94 Mo. 47, and cases cited.] ”

For the purpose of determining the question as to whether or not there had been a diversion of the property which was held in trust, in the Russie case, we compared the two Confessions of Faith (the old and the new) and determined the right of property by determining that there was in fact no change in the creed of the church, and in so doing we followed the cases of Schlichter v. Keiter, 156 Pa. St. 145; Kuns v. Robertson, 154 Ill. 394, and Bear v. Heasley, 98 Mich. 300, which cases had considered the same revised Confession of Faith that we had under consideration. The latter case held that there was a difference between the original and amended documents, the former two that there was not. But each case passes upon the question. All these cases grew out of disputes having their origin in certain amendments made to the Confession of Faith of the Church of the United Brethren in Christ. The organization was a large one and cases reached the appellate courts of several States, as above indicated.

An analysis of onr cases shows that in cases where civil or property rights are involved the courts of this State will inquire into matters ecclesiastical.

In the Watson case, supra, we held an act of the General Assembly of the Presbyterian Church, U. S. A., to be invalid and void, and to do so reviewed the constitution of the church, seeking for the alleged authority claimed by the General Assembly. So that this court has authorized an investigation of the fundamental laws of the church to determine whether or not its acts were valid thereunder.

In the Russie case, supra, for the purpose of determining whether or not the property ha.d been diverted from a trust, we compared two Confessions of Faith to see whether or not they differed in doctrine. Thus it appears that under our holdings, we will for ourselves examine such instruments for that purpose.

And may we now be permitted to add that, in our humble judgment, it would be a flagrant violation of constitutional mandates for the civil courts of this State, in cases involving property rights, to attempt to hide behind the judgments and decrees of any ecclesiastical tribunal. The duty of our courts in such cases is to investigate the facts, and all the facts bearing upon the issue as to property rights. If that investigation in a measure intrudes upon the decrees of bodies having no authority to pass upon property rights, there is no remedy for it. Of those pure ecclesiastical questions of creed, faith or church discipline, we should wash our hands, unless an investigation thereof is required to determine property rights. If for that purpose it should be required, our constitutional duty is to so investigate. Some of the courts are not as explicit in terms as was this court in the case of Watson v. Garvin, supra, but from the cases may be deduced the following:

(a) Civil courts will investigate ecclesiastical decrees when it becomes necessary so to do in determining property rights. [Grimes’ Exrs. v. Harmon, 35 Ind. l. c. 254; Smith v. Pedigo, 145 Ind. l. c. 375; Hatfield v. Delong, 156 Ind. l. c. 207; Bird v. St. Mark’s Church, 62 Iowa l. c. 573; Bridges v. Wilson, 11 Heisk. l. c. 470; Deaderick v. Lampson, 11 Heisk. 523; Associate Reformed Church v. Trustees, etc., 4 N. J. Eq. 77; Free Church of Scotland v. Lord Overtoun, L. R. App. Cas. (1904) 515, et seq.]

All of these cases and those that follow under further lettered subdivisions recognize the right of civil courts to investigate matters ecclesiastical in case property rights are involved. We shall not quote lengthily, nor from all, but as indicative of the trend of authority, short excerpts from some cases upon the question involved under each subdivision are at least pardonable in view of the bold stand taken by counsel for respondents in the oral argument before the court and reiterated in briefs herein filed, i. e., that for no purpose would the civil courts go behind the adjudications of ecclesiastical tribunals. So strong did they put it in oral argument that they declared that if an ecclesiastical judicatory declared that the word “white” meant “black,” we had but to enter the decree. The writer received such argument with a mental reservation of a right to dissent therefrom, but this dissent is better expressed in the case law than can we, with our limited ability, express it.

In the Grimes case, supra, the Indiana Court says: “That over the church, as such, the legal tribunals do not have, or profess to have, any jurisdiction whatever, except 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 judicatures to which they have voluntarily subjected themselves. But the civil courts will interfere with churches and religious associations, and determine upon questions of faith and practice of a church when rights of property and civil rights are involved. ’ ’

Note the language contained in the last sentence. Does that mean that a church court can say black is white and the civil court he hound thereby? Not by a. long ways. It means what it says, as should church confessions mean what they say. It means that the courts will determine the meaning of the documents which express the doctrines of faith, aided by such lights as the law permits. And why not? In all other cases wherein the rights of property are on trial the civil courts must construe all written instruments introduced in evidence and bearing upon the issues. That we will not construe them in purely ecclesiastical cases, in which ho property rights are involved, is because they cannot lawfully be before us for construction. But if a civil, as distinguished from a pure ecclesiastical right, is before us, we must construe it and determine its effect in so far as the property interest is concerned.

Again says the Indiana Court in the Smith case, supra: “While the courts of this State have no ecclesiastical jurisdiction whatever, yet they are charged with the duty and clothed with the jurisdiction of protecting property rights of religious societies, corporations and churches, as well as that of individuals, and thereby, of necessity, they may be compelled to decide a question of ecclesiastical law when that law becomes a fact upon which property rights depend. They ought not, however, to be inclined to ‘rush in where angels fear to tread,’ and where necessity does not compel them. ’ ’

In the Bird case, supra, the Iowa Court says: ‘ ‘ The civil courts will not revise the decisions of churches or religious associations upon ecclesiastical matters; but they will interfere with such associations when rights of property or civil rights are involved.”

In the Deaderick case, supra, the Tennessee Court, following Gartin v. Penick, of the Kentucky Court, says: ‘ ‘ The rule is thus laid down and we think correctly, by Judge Robertson, of the Supreme Court of Kentucky, in the case of Gartin v. Penick, 9 Am. Law Reg. (N. S.) 213, that ‘while the general desire of court's is to avoid ecclesiastical or spiritual questions, they find it impossible to do so. If a body of men have wrongful pqssession of a church, or of a sum of money, on the pretense, for example, that they are the religious body to which the money or the building was destined, their opponents have no rig’ht of redressing the wrong and vindicating their own right, except by appealing to the civil tribunals of the country, and civil tribunals have no means oi: doing justice in such cases, except by investigating into differences of doctrine, discipline, or practice, which, to the litigants, may be religious differences, but to the judge are mere matters of fact bearing on a question of civil right. ’ He then adds, that while courts could not ‘control or mould the faith or doctrines of the church,’ nor settle questions of orthodoxy, yet ‘so far as the identity of the respective claimants with the beneficiary to whom the church property was dedicated, may be affected by their doctrines, or by the acts of the General Assembly in that case, the essential coincidence of the doctrines and the legal effect of those acts must necessarily be considered for the purpose of deciding the question of title to the property. These principles will sustain the j urisdiction of civil courts in cases like the present, and the views we have above expressed.”

(b) And in the investigation of property rights the civil courts will investigate and see that the church judicatory has acted, and if so, whether it has acted within the terms of the constitutional grant of power.

If beyond the constitutional provisions of the church, the acts will be declared void. [Watson v. Garvin, supra; Watson v. Avery, 2 Bush 332; Perry v. Wheeler, 12 Bush l. c. 549; Gartin v. Penick, 5 Bush 110; Bouldin v. Alexander, 15 Wallace 131; Krecker v. Shirey, 163 Pa. St. l. c. 551; Brundage v. Deardorf, 55 Fed. 839; Kerr’s Appeal, 89 Pa. St. l. c. 112; McAuley’s Appeal, 77 Pa. St. 397; McFadden v. Murphy, 149 Mass. 341.].

Speaking to the contention that the action of the church judicatories of the Presbyterian Church could not even he questioned upon the ground that the action was unconstitutional, and that such bodies were judges of their own jurisdiction, the Court of Appeals of Kentucky in the Watson case, supra, says: “Such a construction of the powers of church tribunals would, in our opinion, subject all individual and property rights, confided or dedicated to the use of religious organizations, to the arbitrary will of those who may constitute their judicatories and representative bodies, without regard to any of the regulations or constitutional restraints by which, according to the principles and objects of such organizations, it was intended that said individual and property rights should he protected. Especially is this so with reference to the powers of the higher courts of the Presbyterian Church. Those powers are not only defined, but limited by the constitution. But if it be true, as insisted for the appellees, that the inferior courts and people of the church are bound to accept as final and conclusive the assembly’s own construction of its powers, and submit to its edicts as obligatory, without inquiring whether they transcend the barriers of the constitution or not, the will of the assembly, and not the constitution, becomes the fundamental law of the church. But the constitution having been adopted as the supreme law of the church, must be supreme alike over the assembly and people. If it is not, and only binding on the latter, the supreme judicatory is at once a government of despotic and unlimited powers. But we hold that the assembly, like other courts, is limited in its authority by the law under which it acts; and when rights of property, which are secured to congregations and individuals by the organic law of the church, are violated by unconstitutional acts of the higher courts, the parties thus aggrieved are entitled to relief in the civil courts, as in ordinary cases of injury resulting from a violation of a contract, or the fundamental law of a voluntary association.”

This is peculiarly applicable to the case at bar because upon the question of limitation of power, the Cumberland Presbyterian constitution is similar to that of the Presbyterian.

So, too, says Mr. Justice Strong in the Bouldin case, supra: " But we may inquire whether the resolution of expulsion was the act of the church, or of persons who were not the church, and who consequently had no right to excommunicate others. And, thus inquiring, we hold that the action of the small minority, on the 7th and 10th of June, 1867, by which the old trustees were attempted to be removed, and by which a large number of the church members were attempted to be exscinded, was not the action of the church, and that it was wholly inoperative.”

In the Krecker case, supra, the Pennsylvania court said: “But if such decisions plainly violate the law they profess to administer, or are in conflict with the laws of the land, they will not be followed. [Commonwealth ex rel. v. Cornish, 13 Pa. St. 288; O’Hara v. Stack, 90 Pa. St. 477.]”

And on the same page, the court also says: “It does not matter that a majority of any given congregation or annual conference is with those who dissent. The power of the majority as well as that of the minority is bound by the discipline and so are all the tribunals of the church from the lowest to the highest. [McAuley’s Appeal, 77 Pa. St. 397; Sutter v. Reformed Butch Church, 42 Pa. 503; O’Hara v. Stack, 90 Pa. 477; Schlichter v. Keiter, 156 Pa. St. 119.] ”

In Kerr’s case, supra, the same court, in speaking of a previous case decided by it in which the court had sustained a mandamus to reinstate certain exscinded members of a church, says: “This was, indeed, but a reiteration of that principle so well known to our jurisprudence, that the decree of a church judicatory is binding only when it is affirmatively shown that it has acted within the scope of its authority and has observed its own organic forms and rules. But the decree under consideration is not only open to the objection that it is not in accord with the well-known law of the church, that no one shall be condemned without due process, but it is also open to the charge that it is opposed to the cardinal principles of natural justice as being a judicial sentence without notice or hearing. [Gibson, C. J., in Commonwealth v. Green, 4 Whart. 601.] As a judicial decree, therefore, the synodical resolution was ultra vires and ineffectual to dispose of the charter and property of the Second Reformed Congregation. ’ ’

It thus appears that Missouri does not stand alone when in the "Watson case we examined the constitution of the Presbyterian Church and condemned its action as ultra vires.

And in the Brundage case, supra, no less a personage than Judge Wlliam H. Taut, in speaking of an amended Confession of Faith, has said: “Even if the supreme judicatory has the right to construe the limitations of its own power and the civil courts may not interfere with such a. construction, and must take it as conclusive, we do not understand the Supreme Court in Watson v. Jones, to hold that an open and avowed defiance of the original compact, and an express violation of it, .will be taken as a decision of the supreme judicatory which is binding on the civil courts. ’ ’

In Bear v. Heasley, 98 Mich. l. c. 307, the Michigan Court says: “The relation between the members of this association is one of contract, and the Confession of Faith and the constitution constitute the terms of the agreement, which is binding upon all.”

(c) And in such investigation of property rights the courts will take and compare the two creeds, and award the property to the parties, whether in the majority or the minority, who have adhered to the doctrine and faith, which existed prior to the schism or division. [Krecker v. Shirey, 163 Pa. St. l. c. 560; Brundage v. Deardorf, 55 Fed. l. c. 846; Bear v. Heasley, 98 Mich. 279; Lemp v. Raven, 113 Mich. 375; Deaderick v. Lampson, 11 Heisk. l. c. 535; Rodgers v. Burnett, 108 Tenn. l. c. 183; Free Church of Scotland v. Lord Overtoun, L. R. App. Cas. (1904), 515.]

In the Brundage case, supra, Judge Taft says: “The question is one of identity, and that identity is to be determined by a reference to the fundamental law of the church which was the original contract or compact under which its organization was effected, and in pursuance of which, and subject to which, all the property acquired for its use became vested in the church. An open, flagrant, avowed violation of that original compact, by any persons theretofore members of the church, was necessarily a withdrawal from the lawful organization of the church, and the forfeiture of any rights to continued membership therein and to the control and enjoyment of the property conferred on such organization.”

We shall not quote further under this proposition. Suffice it to say that in determining the question of whether or not property has been diverted from a trust it becomes necessary to show the identity of the organization claiming the property with the organization existing when the trust was created. This identity is shown by the creed or confession of faith. In each of these cases cited supra the courts did examine the creeds to determine the identity of the organization. No more thorough exposition of the Calvinistic doctrine can be found in the law books than in the discussion of the two creeds under review by the House of Lords in the Free Church of Scotland case, supra.

In the case of McBride v. Porter, 17 Iowa 203, much relied upon by the respondents in this case, the court examined the creeds of the two churches which had united and found them to be the same, and held for that reason the identity of the beneficiary had not been lost by the mere change of name. But the court puts it on the ground that the two churches were "entertaining the same faith and doctrineThe italics are ours.

These observations as to the law indicate our purpose to go into all the questions in the case, and such is our purpose.

(d) There is yet another and further reason why civil courts should investigate the jurisdiction of ecclesiastical courts, even though they are going to accept proper decrees therefrom.

The idea is well expressed by the Michigan court in the Bear case, supra: “It has been expressly held by this court that the provision of the Federal Constitution that full faith and credit shall be given in each State to the records and judicial proceedings of every other State does not preclude an inquiry into the jurisdiction of courts; and if, in fact, the subject-matter of a suit was not within the jurisdiction of the State from which the court derives its authority its judgment is a nullity, and may be so treated everywhere. [People v. Dawell, 25 Mich. 247; Wright v. Wright, 24 Id. 180; McEwan v. Zimmer, 38 Id. 765.] ”

It is useless for me to cite cases in Missouri that we will see that the foreign court had jurisdiction before we give its judgment the full faith and credit required by the Federal Constitution. By what reason can it then be said that we shall blindly register the decrees of ecclesiastical bodies holding their courts respectively in Illinois and Iowa?

II.

That there must he identity of doctrines and faith before a majority of a church organization can take the church property into another church is fully recognized by McBride v. Potter, 17 Iowa 203. That in case of a division in a church organization, that portion of the organization, whether the majority or the minority, which adheres to the existing creed, doctrines and faith at the time of the dispute, is entitled to the church property, is unquestioned law.

In the case at bar, even if civil courts were bound to recognize and register the ecclesiastical decrees, which we deny, yet there has been no decree from either of these church judicatories, saying that there was an identity of confessions of faith, doctrines, disciplines or church polity. The most that is said is “it is mutually recognized such agreement now exists between the systems of doctrine contained in the Confessions of Faith in the two churches a,s to warrant this union — a union honoring alike to both.”

If this be the ecclesiastical judgment, and it is the only one in the record upon the question, then there has never been an adjudication of the fact that there was identity in the two confessions of faith. There might be such a similarity of the confessions as to warrant united action between the churches, and yet not such an identity as is required to pass trust property. The question as to whether or not these two confessions of faith are the same has never been adjudicated.

In Bear v. Heasley, supra, Judge McGrath, speaking of an amended confession of faith against which the defendants were protesting, well.said: “It is urged, however, that the judgments of ecclesiastical tribunals in matters of faith and discipline and the general polity of the church are binding upon civil courts. In the present case there has been no judicial determination of any matter of faith, or discipline or general polity adverse to defendants. As already suggested, there has been no adjudication that the confession of faith has not been changed. ’ ’

So, too, in this case, if the adoption of the resolution for a union of these two churches is to he taken that the Cumberland Presbyterian Church amended its whole confession of faith by adopting that of the Presbyterian Church, U. S. A., then there is and has been no adjudication that such amendment did not change the original confession of faith. Therefore, even if we were disposed to make the decree of the church judicatory our decree, we have no decree upon the vital question to be .adjudicated by this court.

III.

Was there identity of church faith, discipline and polity? Was there identity of the confessions of faith? We say not, and for two reasons. First, from the evidence before us nobody claims that there was, and, secondly, an examination of the documents themselves fails to so indicate. We shall consider in this paragraph the testimony (by way of written statements) of the parties themselves that there was no identity of the confessions of faith.

With the report of the Committee on Fraternity and Union there came to the Cumberland Presbyterian Assembly a supplemental report, signed by William PI. Black for the committee. I take it this was the action of the Cumberland Presbyterian half of the joint committee. This supplemental report urges many reasons for action in favor of union. This report concludes with this remarkable admission:

“Further, it is the opinion of your committee that the doctrinal status as between the two Confessions of Faith favors it. There never can be a unanimity that is absolute, where many finite intelligences are concerned. We see things from different points of view, with different degrees of emphasis, ont of different personalities and impelled by disparate motives ; therefore it is to be expected that any one who so desires can find objections in the statements of another; but brethren dwell together in unity, not by identity of beliefs, nor by the acceptance of absolutely unobjectionable doctrinal symbols, but by mutual tolerance, forbearance and love. If this union is consummated, the real tie which binds will not be in the confessional symbol of the United Church, but the spirit of Christ in the hearts of the brethren.”

Note the language, “but brethren dwell, together in unity, not by identity of beliefs, nor by the acceptance of absolutely unobjectionable doctrinal symbols, but by mutual tolerance, forbearance and love.”

This comes from the committee which for twelve long days considered the subject, and all they can say is “that the doctrinal status” favors union, but adds that such union will be “not by identity of beliefs . . . but by mutual tolerance, forbearance and love. ’ ’ Such identity is not sufficient to- carry with it trust property.

By the report itself it is suggested, as in paragraph two of this opinion fully quoted, that “it is mutually recognized that such an agreement now exists between the systems of doctrines contained in the confessions of faith . . . as to warrant this union.” Not a word said about the identity of the system of doctrine in the respective confessions of faith.

Further they say, “It is also recognized that liberty of belief exists by virtue of the declaratory statement,” etc.

Why suggest that there was liberty of belief if identity of doctrine and faith was to be procured by this union? It is further said that the ordination vows required of the ministers, ruling elders and deacons “require the reception and adoption of the confession of faith, only as containing the system of doctrine taught in the Holy Scriptures.” And in the Moffatt resolution passed by the Presbyterian Assembly and spread upon the minutes of the other Assembly it is said: “The ministers and ruling elders and deacons in expressing approval of the Westminster Confession of Faith as revised in 1903 are required to assent only to the system of doctrine contained therein, and not to every particular statement in it.” In other words, the officers of the church need not endorse what is contained in the Confession of Faith, unless they thought it was well founded in the Holy Book. But how about the unofficial members of the church, and the applicants for admission? No provision for these except to accept the Westminster Confession of Faith and the slight additions thereto, in toto. No regard for the conscientious scruples of such individuals, as we read this report. It would appear from this that we have a confession of faith that can be accepted in part by a class, but must be accepted as a whole by another class. We confess that we do not know whether this is usual or unusual, but we had thought that one who was a member of a church with a written confession of faith would be classed as heretical who taught or believed doctrines contrary to the Confession of Faith. Our theology may be lame upon this proposition, and we only here mention this matter as indicating that this joint committee and these two churches fully recognized that there was not identity of doctrine and faith.

We are not prepared to say that our theology is lame, however. What is a Confession of Faith as applied to this or any other church? As we understand it, a Confession of Faith is simply the construction which a particular religious organization gives to the Holy Book, and of this no one will speak with more reverence than the writer. Different views of the meaning of the Holy Word, have been the occasion of denominational differences, and have forced the different denominations of the church. I dare say that neither layman nor theologian will deny that the churches generally expect their followers to entertain the peculiar construction of the Holy Book given in their respective Confessions of Faith. Such facts we gather from profane history, as well as from theology.

We do not mean that the Presbyterian Church, U. S. A., actually required the member to subscribe to an oath or an obligation that he or she believed in the construction placed upon the Holy Word in their Confession of Faith, but what we do mean is that this church and all other churches having a written Confession of Faith, expect their respective members to be in accord and sympathy with the construction of the Bible which has been placed thereon by the church authorities. Such has been the history of the Presbyterian Church, U. S. A. As evidence thereof we have only to refer to the incident heretofore referred to, as to the origin of the Cumberlánd Church. Not only did the Presbyterian Church, U. S. A., adhere in strictness to their Westminster Confession of Faith, as to doctrine, when they practically cut off the Cumberland Presbytery, but they adhered in all strictness to one of their rules as to the educational requirements. for ordained ministers. But for the fact that the Presbyterian Church required, at that time, a strict adherence to their doctrinal tenets, there would have been no Cumberland Presbyterian Church, and we have seen nothing manifested (by constitutional edict) since that time to lead us to believe there has been a change of heart in the Presbyterian Church, U. S. A., to demand less of its members than an adherence to their doctrinal tenets as found in the Confession. On the contrary if the rules and discipline of the Church mean anything, they mean that the members of the church, both children and adults, are to be taught from the Catechisms, which in doctrine have never been changed from the days of Calvin, and can’t be changed except by the action of the Presbyteries. In other words, if I have children in the Presbyterian Church, U. S. A., whether voluntarily or involuntarily, the discipline of the church requires that they be taught this doctrine. To close, why found a church upon this construction of Holy Writ, and yet say the members are to he in good standing, if they deny the central thought of the doctrine? The statement of the question answers it, in the minds of thinking persons. If the church has changed its original position then by constitutional amendments both to the Confession of Faith and the Catechisms, that change of mind can be evidenced, but it cannot be done by mere declaratory statement, which leaves all the text of the Confession of Faith in full force, and does not even mention the Catechisms, the remaining doctrinal standards of the church. No attempt to change all the doctrinal standards, yet the alleged union was on the basis not only of the Confession of Faith of the Presbyterian Church, U. S. A., but upon that “and the other doctrinal standards,” a part of which are the unchanged books of Catechism, which they teach from and which remain as they have heretofore been.

Now let us take the Presbyterian side of the question and get their views of the identity. When the General Assembly voted upon and adopted the plan of union reported by the joint committee it passed a resolution making it clear what effect that church thought the revision of 1903 had upon the Westminster Confession of Faith. Section 4 reads:- “That the Assembly, in connection with this whole subject of union with the Cumberland Presbyterian Church, places on record its judgment, that the revision of the Confession of Faith effected in 1903 has not impaired the integrity of the system of doctrine contained in the Confession and taught in Holy Scripture, but was designed to remove misapprehensions as to the proper interpretation thereof. ’ ’

If the revision of 1903 “has not impaired the integrity of the system of doctrine” in their Confession of Faith, which was the Westminster Confession of Faith, then by the declaration of the Presbyterian Assembly itself, the Westminster Confession of Faith stands unimpaired with all of its doctrines of fatality in full force. If it has not been impaired it remains unimpaired — unchanged.

The representatives appointed by the Presbyterian Church on the joint committee made a report to their church, when they presented the joint report upon union. In this report, among other things, it was said that at the outset certain things were made plain to the Cumberland brethren of the committee, and among these things made plain was this: “And that the revision of the Confession of Faith had effected no material change in the doctrinal attitude of our Church.” That doctrinal attitude prior to 1903 was the Westminster Confession of Faith and this had not been materially changed.

This committee further says: “The language used in the first paragraph of Concurrent Declaration No. 1, declaring that ‘such agreement now exists between the systems of doctrine contained in the Confession of Faith of the two churches as to warrant this union — a union honoring alike to both, ’ was primarily the language of that committee [meaning the Cumberland committee.] It is to be interpreted in the light of the fact that preceding it the statement is found that the Cumberland Presbyterian Church is to adopt the Confession of Faith of the Presbyterian Church in the U. S. A. Whatever the differences between the churches have been, and there have been decided differences, these brethren must be regarded as giving expression to the sincere conviction that such a doctrinal agreement now exists between the churches as to warrant their adopting our Confession as interpreted by the Declaratory Statement. Tour committee likewise appreciated the power of this presentation made by the brethren of the other committee, and while the language of Declaration No. 1 was not satisfactory to them or to us, and effort was made to secure a different phraseology, it was felt by all that some cordial acknowledgment of a sufficient doctrinal agreement to warrant union, should union be deemed advisable, was due to a church, which it is proposed by both committees should yield its name, adopt our standards as an entirety, and find complete union with us.”

If there could be a clearer admission that the parties considering the question did not think there was substantial identity, we misinterpret the language of these distinguished theologians. Not only were they not satisfied that there was identity of faith and doctrine, but what they did agree upon was satisfactory to neither, but this committee felt there should be “some cordial acknowledgment of a sufficient doctrinal agreement to warrant union.”

No concession here that there were two churches with one same faith, but that there would be if the Cumberland Presbyterians would “adopt our standards as an entirety, and find complete union with us.”

Referring to the differences in church polity as to the selection of negroes as commissioners to the General Assembly and the maintaining separate Presbyteries and Synods for them, a thing not tolerated by the Cumberland Presbyterians, this committee said: ‘ ‘ The committee in all its negotiations stood firm upon the Scriptural principles of the real unity of the household of faith and the equality of all its members,” and they close with these remarks: “If this General Assembly and the Cumberland Presbyterian General Assembly cannot see their way clear to acknowledge a sufficient agreement in doctrine- between the two churches to warrant the union, and if this Assembly and Church feel unable to provide in a constitutional manner for the existence of more than one Presbytery on the same ground, then it is respectfully submitted that the proper course to pursue would be to recommit the Plan of Union with a view to further and modified action.”

In 1907 the General Assembly of the Cumberland Presbyterian Church sent a communication to the General Assembly of the Presbyterian Church, U. S. A., to which reply was made. In this reply we find this language: “We had not heard, until your communication announced it, that anybody had claimed or induced others to believe that the Presbyterian Church in the U. S. A. had abandoned the Westminster Confession of Faith. This is not true. The fact is in easy view of all, and nobody could have obscured it, if it had been attempted, that the re-union was effected upon the doctrinal basis of the Westminster Confession of Faith as revised in 1903 and the other doctrinal standards of the Presbyterian Church in the U. S. A.” The answer then reiterated the often-repeated phrase that the churches in adopting the plan of reunion ‘ ‘ declared that there was sufficient agreement between the system of doctrine of the churches to warrant this union,” etc.

This record evidence, which speaks louder than words, shows that the Presbyterian Church, U. S. A., is holding on with tenacity to the system of doctrine promulgated at Westminster. After the Union that church through its General Assembly boldly announces that if anybody claimed or induced others to believe that it had abandoned the Westminster Confession of Faith such was not true. Note the language above, “This is not true.”

But why multiply words with these admissions from both sides? As between the two confessions of faith, no one claims that there was even substantial identity. From the .record it appears that the Presbyterian Church, U. S. A., was taking legal advicand this advice was to the effect if the union was made it must be upon the basis that all the standards of the new church should be the doctrines and standards of the Presbyterian Church, U. S. A., and that the name of the Presbyterian Church, U. S. A., must be retained. Their church had large holdings of property in trust. These lawyers realized that this property might be lost if the doctrines of that church were impaired in the slightest, and they would not even permit a change of name. Their idea was to preserve absolute identity throughout. Not mere identity of faith, doctrines and standards, but name as well. They were not willing to stand upon McBride v. Porter, 17 Iowa 203, so often cited in respondent’s brief, which held that if there was identity of .doctrinal standards, a new name would not destroy the identity of the church. We are not criticising these lawyers, for they gave good legal advice. Nor are we criticising the church for seeking advice, because their vast interests demanded it, and their officers would have been derelict in duty had they failed to seek proper legal advice. But we dare say that the advice then given was far from what is now urged in this court. In our statement we refer to the use of the words “union” and “reunion” in the submission of the question. We were impressed with the notion when reading the record that the able counsel, whoever they were, in advising how the plan should be submitted, had likewise suggested the use of both words as a better means of safeguarding the property rights of their client, and hence our statement that the reason for the use of the two words appeared only in the shadows of the background. But we repeat that this was proper legal advice, and the Church was right in seeking it.

But all this goes to show that at no place throughout the proceedings did these two churches consider that there was even substantial identity of doctrines and standards. “Sufficient agreement of doctrine for union” is an uncertain and intangible thing. What one person would say was a sufficient agreement might not be so considered by another. Then the character of united action must be considered. In the broad sense of the mere saving of souls there is sufficient agreement of doctrines for all churches to unite upon. Identity of faiths, doctrines and standards, described merely as “sufficient agreement to warrant this union,” is not that identity which the law demands when determining the rights of parties to trust property.

We conclude this paragraph by saying that the evidence of the parties themselves does not show that they considered there was identity of doctrines such as the law demands.

Now, going a step further, let us take up the two doctrines themselves and compare them. We shall not go elaborately into them, but far enough to illustrate that there is not identity of doctrine in the two confessions of faith. For a better exposition of them we refer the inquiring mind to the able and learned opinion of Neil, J., of the Tennessee Supreme Court, in the case of Landrith v. Hudgins, 120 S. W. 783.

Below in parallel columns we set ont material portions of the two confessions of faith:

Presbyterian Church in the United States of America.

CONFESSION OF FAITH.

CHAPTER III.

OF GOD’S ETERNAL DECREE.

III. By the decree of God, for the manifestation of His glory, some men and angels are predestined unto everlasting life, and others fore-ordained to everlasting death.

IV. These angels and men, thus predestined and fore-ordained, are particularly and unchangeably designed; and their number is so certain and definite that it cannot be either increased or diminished.

V. Those of mankind that are predestined unto life, God, before the foundation of the world was laid according to His eternal and immutable purpose, and the secret counsel and good pleasure of His will, hath chosen in Christ, unto everlasting glory, out of His mere free grace and love, without any foresight of faith or good works, or perseverance in either of them, or any other thing in the creature, as conditions or causes moving Him thereunto; and all to the praise of His glorious grace.

VI. As God hath appointed the elect unto glory, so hath He, by the eternal and most free purpose of His will, fore-ordained all the means thereunto. Wherefore they who are elected, being fallen in Adam, are redeemed by Christ, are effectually called unto faith in Christ by His spirit working in due season; are justified, adopted, sanctified and kept by His power through faith unto salvation. Neither are any other redeemed by Christ, effectually called, adopted, justified, sanctified and saved, but the elect only,

i VII. The rest of mankind, God was pleased, according to the unsearchable counsel of His own will, whereby He extendeth or withholdeth mercy as He pleaseth, for the glory of His sovereign power over His creatures, to pass by, and to ordain them to dishonor and wrath for their sin, to the praise of His glorious justice.

CHAPTER X.

OF EFFECTIVE CALLING.

III. Elect Infants, dying in infancy, are regenerated and saved by Christ through the Spirit, who worketh when, and where, and how He pleaseth. So also are all elect persons, who are incapable of being outwardly called by the ministry of the Word.

IV. Others, not elected, although they may be called by the ministry of the Word, and may have some common operations of the Spirit, yet they never truly come to Christ, and therefore cannot be saved; * *

Cumberland Presbyterian Church. <

CONFESSION OF FAITH. DECREES OF GOD.

8. God, for the manifestation of His glory and goodness, by the most wise and holy counsel of His own will, freely and unchangeably ordained or determined what He himself would do, what He would require His intelligent creatures to do, and what should be the awards respectively of the obedient and the disobedient.

9. Though all divine decrees may not he revealed to men, yet It is certain that God has decreed nothing contrary to His revealed will or written Word.

FREE WILL.

34. God, in creating man in His own likeness, endued him with intelligence, sensibility and will, which form the basis of moral character, and renders man capable of moral government.

35. The freedom of the will is a fact of human consciousness and is the sole ground of human accountability. Man in his estate of innocence, was both free and able to keep the Divine law, also to violate it. Without any constraint, from either physical or moral causes, he did violate it.

DIVINE INFLUENCE.

38. God, the Father, having set forth His Son, Jesus Christ, as a propitiation for the sins of the world, does most graciously vouchsafe a manifestation of the Holy Spirit with the same Intent to every man.

REGENERATION.

51. Those who believe in the Lord Jesus Christ are regenerated, or born from above, renewed in spirit, and made new creatures in Christ.

54. All infants dying in infancy, and all persons who have never had the faculty of reason, are regenerated and saved.

The General Assembly of the Presbyterian Church in 1903 adopted what they called a “Declaratory Statement” with reference to Chapter 3 of their Confession of Faith, from which chapter, Sections 3 to 7, quoted above, are taken. The Declaratory Statement thus reads:

First. With reference to Chapter 3 of the Confession of Faith: That concerning those who are saved in Christ, the doctrine of God’s eternal decree is held in harmony with the doctrine of His love to all mankind, His gift of His son to be the propitiation for the sins of the whole world, and His readiness to bestow His saving grace on all who seek it. That concerning those who perish, the doctrine of God’s eternal decree is held in harmony with the doctrine that God desires not the death of any sinner; but has provided in Christ a salvation sufficient for all, adapted to all, and freely offered in the Gospel to all; that men are fully responsible for their treatment of God’s gracious offer; that His decree hinders no man from accepting that offer; and that no man is condemned except on the ground of his sin.

We have some views of our own on this Declaratory Statement, but that we may not be said to express only worldly views, we quote a few lines from the eminent Presbyterian preacher and teacher, Rev. Benjamin B. Warfield, D. D., EL. D., of Princeton Theological Seminary. Writing upon the subject of “The Confession of Faith as revised in 1903” in the Union Seminary Magazine, Richmond, Va., Vol. 16, No. 1, he says, among other things, as follows:

The Declaratory Statement is not a “revision” of the text of the confession, nor an “addition” to the text of the confession; it is only an “explanation" of the text of the confession. The text itself it leaves intact; and not only leaves the text intact, it reaffirms that text. What it sets itself to do, in fact, is to protect this text from false inferences and to strengthen it by application. That this is the real state of the case will be apparent if we give attention to the terms of the Preamble by which the Declaratory Statement is introduced. . . . This doctrine it declares, we observe, “is held.” It is not repudiated; it is not modified; it is not qualified; it is not in any way weakened or diluted; it simply “is held.” Reaffirmation could not be more explicit.

In oUr bramble judgment, Dr. Warfield is not far from right. Had he gone further and examined Chapter XXIV of the “Form of Government” of the Presbyterian Church, which chapter pertains to amendments, he would have found that it is neither an amendment in law nor fact. Such a document finds no constitutional support under the constitution of his church. Nor does the instrument itself purport to be a legislative act amending or changing the text. It affirms that -everything in the sections we have quoted is correct, but it further holds said statements are in harmony with certain other named doctrines. But even giving it the status of an amendment, it leaves th-e sections we have quoted as fully in force and effect as the day they were adopted in the Westminster Conference. In other words the effect of it, considered as an amendment, is that all of the old sections are right, and are harmonious, with the other things stated. That the two doctrines are in harmony we "are wholly unable to, see. If it is meant by this instrument that they want the court to say that the original sections do not teach that some men were damned from the beginning by the decree of God and that some others were saved by the same decree, from the same date, we will not so say. The language of these sections is in plain English, and the court is presumed to be able to understand English, whether it appears in a contract or a confession of faith. Confessions of faith to be read and understood by the masses, the ignorant as well as the highly educated, are presumed to be in plain terms and we presume they generally are in plain terms. At least this one is in plain terms. It is not claimed that these sections do not form a part of the Confession of Faith, or that a letter or syllable therein has been changed. The preamble says that the Declaratory Statement was for the purpose of “ a disavowal by the church of certain inferences drawn from statements in the Confession of Faith.” What these inferences were, we are left to gather from what follows. But this is immaterial. It is evident that these sections are left, and are unimpaired, as Dr. Warfield says, and as the Church itself said in the Assembly of 1907.

We cannot say that there is identity of doctrine between these sections, and the sections quoted from the other confession of faith. They are diametrically opposed to each other.

But going to another matter. When the committee was appointed to prepare this identical Declaratory Statement it received instructions from the General Assembly thus: “It being understood that the revision shall in no way impair the integrity of the system of doctrines set forth in our Confession and taught in the Holy Scriptures.”

Thus they were charged in advance to in no way impair the Westminster Confession of Faith, and we think they have obeyed instructions.

Remembering that the union was effected “on the doctrinal basis of the confession of faith of the Presbyterian Church in the United States of America, as revised in 1903, and of its other doctrinal and ecclesiastical standards ’’ let. us now go to a portion of such standards, about which there is no claim of wrong inference having been drawn, and which have not been -either explained or modified by Declaratory Statement or otherwise. The Catechisms contain the doctrines actually and daily taught. These Catechisms cannot be changed, except by amendment, approved by two-thirds of the Presbyteries in the Presbyterian Church. [Chap. XXIV, Sec. 3, of Presbyterian Form of Government.] There is no pretense that these have been amended. Let us therefore compare the doctrinal tenets of the two churches from these standards, for they are the standards from which they teach both the young and the old.

Presbyterian U. S. A.

The Larger Catechism.

Q. 12. What are the decrees of God?

A. God’s decrees are the wise, free and holy acts of the counsel of His will, whereby from ail eternity, He hath, for His own glory, unchangeably fore-ordained whatsoever comes to pass in time, especially concerning angels and men.

Q. 13. What hath God especially decreed concerning angels and men?

A. God, by an eternal and immutable decree, out of His mere love, for the praise of His glorious grace, to be manifested indue time, hath elected some angels to glory; and in • Christ hath chosen some men to eternal life, and the means thereof; and also, according to His sovereign power, and the unsearchable counsel of His own will (whereby He extendeth or withholdeth favor as He pleaseth), hath passed by, and fore-ordained the rest to dishonor and wrath, to be for their sin inflicted, to the praise of the glory of His justice.

Q. 67. What is effectual calling?

A. Effectual calling is the Work of God’s almighty power and grace, whereby '(out of His free and especial love to His elect, and from nothing in them moving Him thereunto) He doth in His accepted time invite and draw them to Jesus Christ, by His word and Spirit, savingly enlightening their minds, renewing and powerfully determining their wills, so as they (although In themselves dead in sin) are hereby made willing and able, freely to answer His call, and to accept and embrace the grace offered and conveyed therein. .

Q. 68. Are the elect only effectually called?

A. All the elect, and they only, are effectually called; although others may be and often are outwardly called by the ministry of the Word, and have some common operation of the Spirit; who, for their wilful neglect and contempt of the grace offered to them, being justly left in their unbelief, do never truly come to Jesus Christ.

The Shorter Catechism.

Q. 19. What is the misery of that estate whereinto man fell?

A. All mankind, by their fall, lost communion with God, are under His wrath and curse, and so made liable to all the miseries of this life, to death itself, and to the pains of hell forever.

Q. 20. Did God leave all mankind to perish in the estate of sin and misery?

A. God, having out of His mere good pleasure, from all eternity, elected some to everlasting life, did enter into a covenant of grace, to deliver them out of the estate of sin and misery, and to bring them into an estate of salvation by a Redeemer.

Q. 21. Who is the Redeemer of God’s elect?

A. The only Redeemer of God’s elect is the Lord Jesus Christ, who, being the eternal son of God, became man and so was and continueth to be God and Man, in two distinct natures and. one person forever.

Cumberland Presbyterian.

Catechism.

Q. 7. What are the decrees of God?

The decrees of God are His wise and holy purposes to do what shall for His glory. Sin not being for His glory, therefore, He has not decreed it.

21. What are the evils of that estate into which mankind fell?

Mankind, in consequence of the fall, have no communion with God, discern not spiritual things, prefer sin to holiness, suffer from the fear of death and remorse of conscience, and from the apprehension ’ of future punishment.

22. Did God leave mankind to perish in this estate?

No; God, out of His mere good pleasure and love, did provide salvation for all mankind.

23. How did God provide salvation for mankind? ,

By giving His Son, who became man, and so was and continues to be, both God and man in one person, to be a propitiation for the sins of the world.

Page after page might be taken tip, but it is useless. From these catechisms, the people are taught the doctrinal theories of the churches. Some churches go so far as not to confirm the member until they have been fully studied and memorized. If the Presbyterian Church to-day is complying with the discipline of their church, and teaching’ from these Catechisms, either Larger or Shorter, they are teaching Calvinism in its purity. We are to presume that, as faithful Christians, as they are, they are not remiss in this regard. But be that as it may, these quotations are of their standards of doctrine and faith. Had that .Church desired to depart from them under their Constitution, they should have been stricken out by amendment.

So, too, had it been the purpose to depart from the old Westminster Confession of Faith, they would have stricken out by way of amendment that part relating to the Decrees of Grod, which teach fatalism in terms too concise and plain to require argument here.

The position of the Cumberland Presbyterian Church is well stated by the following excerpts from Blake’s Old Log House, pp. 267 to 270:

The Cumberland Presbyterian Church claims to occupy what it denominates the “MEDIUM SYSTEM OF THEOLOGY” — a middle ground between Calvinism and Arminianism. The two latter systems (Calvinism and Arminianism) as we all know, are regarded as the extremes of theology. It is claimed by the advocates of the systems that there is no medium ground; that everyone must either be a Calvinist or an Arminian in his religious belief or else he is nothing; but such an assertion, when analyzed, is absurd — might as well say there is no territory between the North and South Pole,, or that there is no space between the extreme ends of a platform! How could these two systems be the extremes of theology without having this intermediate area — this medium ground?

But let us examine those systems (Calvinism and Arminianism), and see if there is not a theological medium ground.

1. The Doctrine of 'Election — Calvinism teaches that election is unconditional. Arminianism teaches that there is no election in this life. Medium system teaches that there is an election, but that it is conditional.

2. The Doctrine of Salvation. — Calvinism teaches that salvation is unconditional to sinners, but certain to Christians. Arminianism teaches that salvation is conditional to sinners but uncertain to Christians. Medium system teaches that salvation is conditional to sinners but certain to Christians.

3. The Date of Election. — Calvinism teaches that the date of election is before man was created. Arminianism teaches that the date of election is not prior to the death of the Christian, if indeed, it occurs then. Medium system teaches that the date of election is the moment when the sinner is regenerated.

4. The Extent of the Atonement. — Calvinism teaches that Christ died for only a part of the human race — -that salvation is not possible to all, and that none but those who were “elected from the foundation of the world,” will be saved. Arminianism teaches that the atonement of Christ was made for all mankind — that salvation is possible to all; but, as Christians may fall from grace, it is not certain that any one will be saved. Medium system, salva: tion is possible to all, and that every one who has been truly regenerated will be saved.

5. The perseverance of the Saints. — Calvinism teaches that perseverance depends principally upon the immutability' of the decree of unconditional election. Arminianism teaches that perseverance depends principally upon the good works of the creatures. Medium system teaches that perseverance depends, not upon the immutability of the decree of unconditional election, nor upon the good works of the creature, but upon the love of God, the merits of Christ, the abiding of the Spirit and the covenant of Grace.

At the first meeting of the first Cumberland Presbyterian Synod, there was promulgated the following :

1. That there are not eternal reprobates.

2. That Christ died, not for a part only, but for all mankind.

3. That all infants 'dying in infancy are saved through Christ and the sanctification of the Spirit.

4. That the Spirit of God operates on the world, or as eo-extensively as Christ has made atonement, in such a manner as to leave all men inexcusable.

Such is found implanted in every line of their subsequently made Confession of Faith. Such was there at the time of this union, and such is there both in spirit and letter at this time.

"We cannot hold that there is substantial identity between these two confessions of faith.

To so say would be but to call from the grave tbe earnest protests of such venerable fathers in Israel as Ewing, McAdow, King, Calhoun, Donnell, Morrow, Buie, Burrow, Sloan, Patton, Renick and others, who from the beginning, framed and fostered the spirit of Cumberland Presbyterianism both in the East and West, and some of whom are buried beneath the sod in Missouri.

We, therefore, hold that the parties leaving the Cumberland Presbyterian Church and going into the Presbyterian Church, U. S. A., are dissenters from the Cumberland Presbyterian doctrines and faith, and it matters not whether they be in the majority or minority, they are in no position to claim property conveyed and held in trust for the Cumberland Presbyterian Church. This statement is here made subject to the views we have as to the legality of the proceedings for union, which follow.

V.

We do not decide that the Cumberland Presbyterian Church could not amend its Confession of Faith by striking out portions thereof, or adding portions thereto. Under their constitution this can be done, for section 60 of their constitution reads: “Upon the recommendation of the General Assembly at a stated meeting, by a two-thirds vote of the members thereof, voting thereon, the Confession of Faith, Catechism, Constitution and Rules of Discipline, may be amended or changed when a majority of the Presbyteries, upon the same being transmitted for their action, shall approve thereof.”

We have set out what was submitted to the Presbyteries to be voted upon. The question there submitted was the question of union, not the question of amending the Cumberland Presbyterian Confession of Faith. We have read this voluminous record, contain^ ing the proceedings of both Assemblies upon the question of union, and no word is found’ therein showing that they considered for a moment an amendment of the Cumberland Confession of Faith. Not an amendment was suggested by the General Assembly of the Cumberland Presbyterian Church, nor was one voted upon by the Presbyteries. The question of amending this Confession of Faith is never mentioned, and it remains in full tact to-day.

For the present, grant it that two churches having like creeds and doctrines can unite, and by such union, because of the identity of doctrine, carry to the union the property held in trust by both, yet that does not reach this case. Here we have two churches of different doctrines and faiths attempting to unite without changing by amendment the confession of faith of either. In the language of Judge Neil, in Landrith v. Hudgins, supra: ‘ ‘ The union must he effected in strict accord with the constitution. That is, if it requires a preliminary change of faith and of name and these changes can only he made by amendment, then such amendment must precede the actual union, and must he made in the manner pointed out in the contract. The principle is that as far as the method is distinctly pointed out it should he pursued. ’ ’

The constitution is the contract of association in churches and all unincorporated societies. It is binding upon all portions of the church, as well as all judicatories thereof. It is the supreme law of the church and must he adhered to by every part thereof. To pass upon the meaning of such instrument is not dealing with ecclesiastical questions at all, hut only determining the meaning of an organic agreement or contract. That these organizations cannot go beyond their constitutional powers is amply shown by the cases. [Watson v. Garvin, 54 Mo. 379; Watson v. Avery, 2 Bush 332; Bear v. Heasley, 98 Mich. 279; Bunn v. Gorgas, 41 Pa. St. 446; Krecker v. Shirley, 163 Pa. St. 534; Gartin v. Penick, 5 Bush 110; Kerr’s Appeal, 89 Pa. St. 97; Deaderick v. Lampson, 11 Heisk. 523; Presbyterian Church v. Wilson, 14 Bush 278.]

In fact, this contention is admitted in the case of Wallace v. Hughes, of the Kentucky Court of Appeals, which we will mention later as one of the cases growing out of this particular union. Other cases might be cited, but we take it that it is clear that whenever a church has a written constitution, such constitution is the contract between the members and all are bound thereby.

The only way, under section 60, supra, by which the General Assembly of the Cumberland Presbyterian Church could change the name of that organization or change its doctrines or faith, was by proper amendments offered as to their own confession of faith and organic law. It has no inherent power to wipe out the name Cumberland Presbyterian Church, until by a two-thirds vote of the Assembly, it has asked its Presbyteries, by way of a proposed amendment, whether or not they will so permit. The parties had thought along this line, for in their Plan of Union’which was adopted, the first provision was: “The Presbyterian Church in the United States of America, whose General Assembly met in the Immanuel Church, Los Angeles, Cal., May 21st, 1903, and the Cumberland Presbyterian Church, whose General Assembly met in the First Cumberland Presbyterian Church, Nashville, Tenn., May 21st, 1903, shall be united as one Church, under the name and style of Presbyterian Church in the United States of America, possessing all the legal and corporate rights and powers which the separate Churches now possess.”

Even if it could be said that if this had been submitted it would have the effect of an amendment to the Cumberland Presbyterian Constitution, so as to change the name of that church, yet this section 1 was never submitted to nor voted upon by tbe Presbyteries of tbat cburcb.

Judge Neil, in tbe Tennessee case, bas so forcibly presented tbis point tbat we use bis language ratber than our own. He says:

“Tbe first subdivision of tbe Plan which involved a surrender of tbe name and organization of tbe Cumberland Presbyterian Cburcb, was not submitted to tbe Presbyteries; but was left to be determined, and was determined by tbe General Assemblies of tbe two Churches; or ratber by tbe General Assembly of tbe Cumberland Presbyterian Cburcb. Tbe question-did not arise in tbe Presbyterian Cburcb, H. S. A., because under tbe Plan of Union tbat Cburcb was to retain both its name and organization.

“Did tbe General Assembly of tbe Cumberland Presbyterian Cburcb, without submitting tbe matter to tbe Presbyteries, have tbe power to surrender tbe name and organization of tbe Church, and dissolve it, by consenting to its absorption into another organization? Tbe view entertained by tbe two General Assemblies, it seems, from tbe recitals and resolutions contained in tbe Joint Report, was tbat it was not necessary to submit tbe general Plan to tbe Presbyteries, or ratber, tbat by submitting tbe question whether tbe Union should be made on the basis of tbe Confession of Faith of tbe Presbyterian Cburcb, U. S. A., as revised in 1903, tbe whole plan was submitted. Indeed, from a letter which tbe Moderator and Stated Clerk of tbe Cumberland Presbyterian General Assembly wrote to tbe Presbyteries, it appears tbat they signified to these bodies tbat their vote on these questions would mean tbe acceptance or rejection of tbe whole Plan.’ It is provided in tbe Plan of Union tbat each of tbe Assemblies shall submit tbe basis of union to its Presbyteries, to express their approval or disapproval, by a categorical answer to tbis question, setting forth tbe doctrinal question copied herein, concerning the adoption of the Confession of Faith of the Presbyterian Chnrch, U. S. A. That is, while the Plan consisted of two distinct parts — the matter of doctrine, and the matter of dissolving the organization of the Cumberland Presbyterian Church and its absorption into the Presbyterian Church, U. S. A., only the question of doctrine was ordered to be submitted to the Presbyteries, and their answer to this was to be regarded, according to the Plan, as an answer to the other; in other words, only a part of the Plan was to be submitted to the Presbyteries, but this submission was to be regarded as a submission of the whole. So, passing the statement above quoted from the letter of the Moderator and the Stated Clerk to the Presbyteries as to what the effect of their vote would be as expressing merely their opinion, which, of course, was not binding upon the Presbyteries, or upon the court, because it does not appear that they had any authority to make such statement, but were merely required by the resolution of the Assembly to submit the basis of Union to the Presbyteries, and also because the question is one for this court to determine, — we must consider the question as one arising upon the basis of union itself — whether the submission of the single question referred to (the doctrinal basis), was also a submission of the other, concerning the surrender of the name of the Church, and the breaking up and dissolution of its organizations. The question asked the Presbyteries was: ‘Do you approve of the reunion and union of the Presbyterian Church in the United States of America and the Cumberland Presbyterian Church on the following basis: The union shall be effected on the doctrinal basis of the Confession of Faith of the Presbyterian Church in the United States of America, as revised in 1903, and of its other doctrinal and ecclesiastical standards; and the Scriptures of the Old and New Testaments shall be acknowledged as the inspired Word of God, the only infallible rule of faith and practice?’ Was that equivalent to asking the Presbyteries to vote upon the proposition involved in the first section of the Plan, that the Cumberland Presbyterian Church should surrender its name and organization, and be incorporated into the body of the Presbyterian Church in the United States of America, and under the name of the latter? Does the submission of the question (‘Are you willing to effect a union upon a certain doctrinal basis?’) also submit the question, ‘Are you willing that the Cumberland Presbyterian Church shall abandon its name and organization and be merged into the Presbyterian Church, U. S. A.?’ We think not. Perhaps this might be true as a necessary implication, if merger were the only form of union, hut it is by no means the only form. At all events, the people of the church were entitled to have the whole question submitted to the Presbyteries. We do not think that the General Assembly had power to determine this question without a submission to the Presbyteries. There is nothing in any part of the constitution of the Church which confers this power upon the Assembly, and by section 25 that body is denied all powers not expressly conferred.”

The General Assembly of the Cumberland Presbyterian Church in 1906, by its action undertook to surrender not only the creed and doctrines of its church, but likewise to surrender its name, organization and property, and this without a vote of the Presbyteries. This cannot be done under the Cumberland Constitution. The act was ultra vires and void.

VI.

But to our mind there is another phase of this case to be emphasized. We are firmly of the opinion that there was no power in the General Assembly of the Cumberland Presbyterian Church to submit the question of union. In this view we are opposed to some of the, eases growing out of the controversy now before us. Section 43 of the Constitution reads:

“43. The General Assembly shall have power to receive and decide all appeals, references and complaints regularly brought before it from the inferior courts; to bear testimony against error in doctrine and immorality in practice, injuriously affecting the Church; to decide in all controversies respecting doctrine and discipline; to give its advice and instruction, in conformity with the government of the Church, in all cases submitted to it; to review the records of the Synods; to take care that the inferior courts observe the Government of the Church; to redress whatever they may have done contrary to order; to concert measures for promoting the prosperity and enlargement of the Church; to create, divide, or dissolve Synods; to institute and superintend the agencies necessary in the general work of the Church; to appoint ministers to such labors as fall under its jurisdiction; to Suppress schismatical contentions and disputations, according to the rules provided therefor; to receive under its jurisdiction other ecclesiastical bodies whose organization is conformed to the doctrine and order of this Church; to authorize Synods and Presbyteries to exercise similar power in receiving bodies suited to become constituents of those courts, and lying within their geographical bounds respectively; to superintend the affairs of the whole Church; to correspond with other Churches; and, in general, to recommend measures for the promotion of charity, truth and holiness throughout all the Churches under its care.”

It will he noticed that there are hut two provisions herein that relate to changing the Church status, and we mean by that the Church as a whole. First, it says, “to concert measures for promoting the prosperity and enlargement of the Church,” and, secondly, “to receive under its jurisdiction other ecclesiastical hodíes whose organization is conformed to the doctrines and order of this Church.”

Then follows the clause that they can authorize Synods to do the same things.

It is hardly necessary to say that the word Church in these clauses quoted has reference to the Cumberland Presbyterian Church, and none other.

In this light does the enlargement of the Cumberland Presbyterian Church as spoken of in the first quoted clause, mean the absolute surrender of the name, organization and creed of the Church? To my mind it means to enlarge the Cumberland Presbyterian Church organization itself, and not to destroy or surrender it. This construction receives sanction in the second clause quoted, because it there provides one method of enlargement and that is to “receive” unto itself other organizations of like creed and faith. These powers, when fairly construed, mean (1) that by work in different ways they shall strive to secure individual members to join and thus enlarge the Church, and (2) to receive other bodies of a similar faith, creed and government. Neither of these contemplates the merger of the Church into another organization. The constitution has dealt with the manner of enlarging the Church, and in a manner which does not indicate that there should be a surrender of the church organization, the church name or the creed. Authority to “receive” unto itself does not mean to go to another body. The written instrument having mentioned the specific way by which mergers or unions can be formed with the church, i. e., by receiving other bodies wider its jurisdiction, excludes the idea of enlargement by such church going in under another organization.

The maxim “inclusio unius, exclusio alterms” has peculiar application here. There is express provision for the consolidation of this church with other churches, but that provision is for the other to so amend its creeds, doctrines and form of government as to make them conform to that of the Cumberland Presbyterian, and then come in under the jurisdiction of tbe Cumberland Presbyterian Cburcb. Had the constitution been silent upon tbe question as to bow the Cumberland Church should unite with other churches, there might be something in what respondents call the inherent power to unite. If the written Constitution prescribes a method for union, and this Constitution does, that method and none other should be followed. Any other method would be ultra vires. When they dealt with the question of merger or union, as they did, then the method adopted excludes the idea of any other. This constitutional method was “to receive under its jurisdiction other ecclesiastical bodies whose organization is conformed to the doctrine and order of this Church. ’ ’

The Constitution provides for a union in express terms, but the one sought and attempted to be consummated was not such as is prescribed by the Constitution. It was violative of the Constitution and therefore void.

The sovereign power rests with the Church as a whole, and the several judicatories, beginning with the Church Session and ending with the Assembly,are but agencies of the Church with granted powers, which are expressly limited by section 25 of the constitution. The General Assembly is not the Church, neither is any other minor judicatory. They are but the constitutional agents of the Church, and- whilst they can amend' the constitution as well as the creed, yet until it is amended in strict compliance with the limiting terms of such constitution, the existing organic law is binding alike upon the General Assembly and the humblest member. So that we say that the attempted method of union was in direct violation of the constitution and void. In other words, until the Church has amended section 43 of its constitution it cannot form a union with any other ecclesiastical body, except to receive such other body under its own jurisdiction.

VII.

We do not feel that we should pass this ease without some little comment upon the cases which have grown out of this controversy and the case much relied upon by respondents, i. e., Watson v. Jones, 13 Wallace 729. This last-named case, in so far as it holds that civil courts will not look into the judgments of ecclesiastical courts, has been condemned in terms by the Supreme Courts of Missouri, Kentucky, Michigan and New York, and sharply distinguished if not criticised by Taft, J., in the Brundage-Deardorf case, supra. In the Brundage case, however, the U. S. Court of Appeals, 92 Fed. 214, said that they felt bound by that decision. But as we have shown, the great weight of authority is that civil courts will investigate ecclesiastical judgments in all cases wherein property rights are concerned.

In Schnorr’s Appeal, 67 Pa. St. 138, Justice Sharswood uses this forceful language: “Courts which have the supervision and control of all corporations and unincorporated societies or associations must be guided by surer and clearer principles than those to be derived from the nature of intellectual and spiritual life. The guaranty of religious freedom has nothing to do with the property. It does not guarantee freedom to steal churches. It secures to individuals the right of withdrawing, forming a new society, with such creed and government as they please, raising from their own means another fund, and building another house of worship; but it does not confer upon them the right of taking the property consecrated to other uses by those who may now be sleeping in their graves. The law of intellectual and spiritual life is not the highest law, but must yield to the law of the land.”

In Fussell v. Hail, a case growing out of this particular union, the Illinois Supreme Court said: “The civil courts afford no remedy for an abuse of ecclesiastical authority which does not violate a civil or property right. Church tribunals ought to perform their functions honestly, impartially and justly, with due regard to their constitutional powers, sound morals and the rights of all who are interested; but if tyranny, force, fraud, oppression or corruption prevail, no civil remedy exists for such abuse except where it trenches upon’ some property or civil right.”

This, the Fussell case, is the first of a series of cases growing out of this union. The bill was one in chancery, the object of which was to prevent the two bodies from declaring a union. In other words, they sought to stop the two bodies from acting. The Supreme Court sustained the action of the lower court in sustaining a demurrer to the bill in this language: “There is no allegation setting forth any deed, devise, declaration of trust or gift of any property, or any clause therein or the terms thereof, whereby it can be seen that the proposed union would defeat its purpose. There is no statement whereby it appears that the complainants, or any of those they represent, have an interest in any property which will be in any way affected by the proposed union. It is not alleged that any action is proposed to be taken which will interfere with the management and control of the property of the various churches, boards, schools and other institutions of the Cumberland Presbyterian Church by the boards of trustees or other managers now in control thereof, and of their successors appointed in accordance with the trusts upon which they are held. We do not find that any property right is directly involved or can be directly affected by the proposed action of the General Assembly which it is sought to enjoin. This proposed action was still pending in the General Assembly undetermined, when the bill was filed. It may well be doubted whether the proceedings of an ecclesiastical body can in any event be controlled by injunction while the matter is still in fieri., But without regard to this question, the case stated in the bill was not within the jurisdiction of a court of chancery and the demurrer to the bill was therefore properly sustained.”

It thus appears that the Supreme Court of Illinois clearly indicates that had there been allegations of property rights an investigation should have been made by the civil courts. It so indicates throughout the entire opinion, and in this is opposed to what respondents say was the ruling in Watson v. Jones, supra. The Illinois Court of Appeals had sustained the action of the lower court upon other grounds, holding among other things that under the Cumberland Presbyterian Constitution giving it power “to promote the prosperity and enlargement of the church,” they could unite. The Supreme Court had that opinion before it, but did not see fit to endorse it. We have discussed this constitutional provision elsewhere.

Next we have Mack v. Kime, by the Georgia Supreme Court, 129 Ga. 1, which court followed the opinion of Fussell v. Hail, in the Illinois Court of Appeals, 134 Ill. App. 620, and holds that the court will not go back of the Church adjudications. This court does not discuss the distinction between cases wherein property rights are involved, but bases its opinion upon Fussell v. Hail, supra, wherein the Illinois Supreme Court afterwards said no property rights were involved.

Next we have Wallace v. Hughes, 115 S. W. 684, by the Kentucky Court of Appeals, wherein by a divided Court, Settle, C. J., not sitting, and Nunn, J., dissenting, the court held that the C. P. General Assembly had the power to enter into the union. The court goes into the constitutional power to form the union and is of the opinion that there was such, but proceeds upon what we deem an erroneous theory, in that it holds that the adjudications of ecclesiastical tribunals are binding upon the civil courts. This is apparent from the following language in the opinion: “We think the foregoing authorities establish beyond question that, unless there is something in the constitution of the Cumberland Presbyterian Church, as it existed before the union, which denied jurisdiction to the General Assembly, with the approval of the Presbyteries, to authorize the union under discussion, the action by which the two churches were reunited must be held valid and binding so far as the civil courts are concerned.”

Next in order is Brown v. Clark, by the Supreme Court of Texas. That court follows and relies upon the following cases: Fussell v. Hail, 134 Ill. App. 620, a case in which no property rights were involved, and practically ignored by the Supreme Court of the State in the same case; Mack v. Kime, 129 Ga. 1, which followed the Illinois Court of Appeals; Wallace v. Hughes, Kentucky Court of Appeals, and Watson v. Jones, 13 Wallace. Not another case is cited and the court sought cover under the doctrine that civil courts are bound by the decrees of ecclesiastical tribunals, even where property rights were involved, as they were. The court overrules the opinion of the court of Civil Appeals, which opinion reviews many of the authorities which we have reviewed, and cites even others. For thoroughness of research the latter is much the better of the two opinions.

The views which we have expressed upon this union have been entertained in full or in part by the following cases: Clark v. Brown, 108 S. W. 421, Texas Court of Appeals; Ramsey v. Hicks, 87 N. E. 1091, Ind. Court of Appeals; Landrith v. Hudgins, Supreme Court of Tennessee, and Fussell v. Hail, Supreme Court of Illinois.

In the later ease, the court clearly indicates that had property rights been involved, an inquiry into all matters would have been proper.

But whatever may be the views of other courts as to the duty of a civil court to merely act as the clerk of an ecclesiastical court and register its decrees upon any question, in a case wherein property rights are involved, it has never been the doctrine of this court, from the ease of Watson v. Garvin, in 54 Mo., to this date, and our views, as we think we have shown, have been those of a great majority of the courts. Justice Miller, in the Watson v. Jones case, supra, concedes that his ruling was contrary to English authority, and in the Free Church of Scotland case, in Appeal Cases for year 1904, the English rule is adhered to in all its strictness and the two church creeds examined, pronounced not identical and the union declared void.

VIII.

This union is an unwarranted merger of the Cumberland Presbyterian Church into the Presbyterian Church, H. S. A. It is an unwarranted surrender of name, confession of faith, judicatories, and an unconditional merging of the one church into the other. We say unconditional surrender and merger, because one party kept name, creed, government and everything, whilst the other abandoned everything. Such mergers have been condemned by the best-considered cases both in this country and England.

In England the attempted union and merger of the Free Church of Scotland and the United Presbyterian Church, was condemned by the House of Lords. [Appeal Cases, 1904, p. 695.]

Such a union is likewise condemned by one of the strongest Chancery Courts in this country, that of New Jersey. [Associated Reformed Church v, Trustees of Theological Seminary, 4 N. J. Eq. 77.]

You cannot by union or merger put one church into another having a different creed and doctrines, without forfeiting the property held in trust, to such members of the body as remain faithful to the original creed and doctrine.

By the deeds, the property in this case is held by F. M. Cockrell, J. L. Roberts and W. K. Morrow, as “trustees of the Cumberland Presbyterian Church of the Warrensburg Congregation” in one deed, and in the others as “trustees of the Cumberland Presbyterian Church in Warrensburg, Mo.” This attempted union being invalid, and the plaintiffs herein having dissented from the Cumberland faith and cast their lot with another Church of a different faith and creed, they are not entitled to the beneficial use of this property, but the beneficial use thereof belongs to defendants and all other members of the congregation of the Cumberland Presbyterian Church of Warrensburg, Missouri, who have remained faithful to the doctrines of that Church.

The universal rule is that where there is a schism in a church, those remaining faithful to the tenets of the church at the time of the dispute, whether they be in the majority or the minority, are entitled to hold the property. Of course, if the whole congregation departed from the true faith, and the deed was for the benefit of the local congregation as in this case, they could not be disturbed in their use by an outsider, who had no interest 'in the trust property. Such is not the case here, however. There is a substantial number of the old congregation adhering to the Cumberland faith, and as such, they are entitled to the beneficial use of the property involved.

The decree nisi, is for the wrong party. The judgment will be reversed and the cause remanded with directions to the circuit court to dissolve the injunction and dismiss the bill of the plaintiffs and enter judgment in favor of defendants and against the plaintiffs for all costs. It is so ordered.

Vallicmt, G. J., Burgess and Fox, JJ., concur in these views. Valliant, G. J., whilst concurring in all that is said in this opinion, in separate opinion on motion for rehearing has added some additional views, in which Burgess, Fox and Graves, JJ., concur. Woodson, J., dissents in separate opinion. Lamm, J., likewise dissents and expresses his views in separate opinion. Gantt, J., did not sit.