JUDGE HARDIN
delivered the opinion op the court:
This is an unusually interesting controversy, whether considered with reference to the rights of property to be affected by its determination, or the fact that it involves important questions concerning the constitution and government of the Presbyterian Church in the United States.
In stating such facts as are deemed necessary to show the grounds of our decision, we shall omit the recital of many others to which the parties have given prominence in the record; because, however they1 may have illustrated the merits of certain disputes between the parties in a tribunal having authority to consider them, they are not, in our opinion, material or relevant to any question which it is our province to decide, on this appeal.
On the 8th day of October, 1853, Edward P. Humphrey and wife conveyed a lot of ground on Walnut street, in the city of Louisville, to John Gault, James Malona, and George Gowan, as “ Trustees of the Third Presbyterian Church of the city of Louisville,” to be held by said trustees and “ their successors to be chosen by the congregation.” Upon this lot is situated the church edifice, the use and control of which constitute the subject of litigation in this cause.
A corporation was created for the benefit of said congregation in 1854, by an act of the Legislature, in pursuance of which B. F. Avery, George Fulton, and Henry Farley, were, at the institution of this suit, acting trustees of the temporalities of the congregation of said church.
In March, 1865, Rev. William T. McElroy, in the capacity of stated supply, was the acting pastor in charge of said congregation, and he and John Watson, Joseph Gault, Thomas J. Hackney, and John Martin, the ruling [337]*337elders of the church, constituted the session charged with maintaining the spiritual government of the congregation acccording to the form of government of the Presbyterian Church.
It appears that about that time certain efforts of part of the session and others to continue said McElroy’s pastoral relations with the congregation, developed the existence of two antagonistic parties, nearly equally dividing the members on the question of retaining the services of Mr. McElroy; and out of their conflicting preferences on this subject grew the disturbances and strife which led to Dhis litigation.
In the meantime, Martin ceased to act as a ruling elder, and subsequently removed from the State, leaving the session composed of McElroy, Watson, Gault, and Hackney; and in August, 1865, charges of unchristian conduct were preferred against Hackney, upon which it was resolved by the other members of the session to arraign and try him according to the discipline of the church. Charges were in like manner, also, preferred against Avery and McNaughton, prominent members of the congre'gation, and who opposed the continuance of Mr. McElroy’s pastoral connection with the church.
McNaughton having unsuccessfully petitioned the presbytery to dissolve McElroy’s relations with the church, presented his petition to the synod of Kentucky, praying that body to “ appoint a commission to investigate the condition of said congregation in all its relations, and hear the complaints and testimony of all parties; or to take such other action in the premises as in the wisdom of synod shall be best calculated to prevent the destruction and promote the edification of the congregation.”
[338]*338Hackney and Avery also applied to synod, by separate petitions, protesting against the trial of their cases by the session, as composed of McElroy and others, and praying the appointment of a commission to adjudicate their cases “by enjoining the congregation, to convene for the election of new ruling elders not tainted with schism, or by any other mode as shall seem to them meet.”
The action of the synod on these petitions will sufficiently appear from the following extracts from the published minutes of that body, the first being of date the 15th of October, 1865, and the other five days thereafter.
October 15. — “The judicial committee presented their report. No. 2, which was received, approved, and is as follows:
“ The committee further report that the two remaining papers in their hands, to-wit: the one of T. J. Hackney, being a protest and complaint against the proceedings of the session of the Walnut Street Church against himself; and the other the protest and complaint of B. F. Avery against the same session, in its proceedings against himself, have been duly examined.
“In the judgment of your committee neither of these papers can properly come before synod in the form of complaint at the present time, inasmuch as both these cases are still pending in the lower court.
“ The committee, however, for the relief of the parties aggrieved, recommend that synod allow them to place the papers in the hands of the special committee on the petition of Mr. McNaughton and others, inasmuch as the matters complained of are substantially of the nature of those named in the petition.”
October 20. — “ The next order of the day was taken up, viz: the report of the select committee on the [339]*339papers from the Walnut Street Church. The report of said committee is as follows:
“ The special committee to whom was referred certain petitions and complaints from members of the Walnut Street Church, recommend that said papers be returned to those to whom they belong, as they appertain to matters now pending before the session of said church. And your committee would remind those who feel aggrieved, that when the case pending shall be issued, if they should feel that injustice has been done, they may appeal or complain to the higher courts in regular order.
“All the papers were read, viz: the petition of D. McNaughton, the petition of certain members of said church, the complaint of T. J. Hackney, the complaint of B. F. Avery, the petition of certain members of said church to the presbytery of Louisville, the records of said presbytery, two letters of D. McNaughton, a letter from the session of said church to W. T. McElroy. All the papers having been read, a substitute was offered for the report. After some discussion, the previous question was called for on the motion to adopt said substitute. The call for the previous question was sustained. The main question was put. The substitute was adopted, and is as follows:
“Synod having the papers in reference to the Walnut Street Church, orders that a committee, consisting of J. L. McKee, S. R. Wilson, J. C. Young, R. Knott, and William Garvin, be, and they are hereby, appointed to visit said congregation, with the power to call a congregational meeting for the purpose of electing additional ruling elders, calling a pastor or choosing a stated supply, and doing any other business competent to a congregational meeting that may appear to them, the said congregation, necessary for their best interests.
[340]*340“ To this committee are referred all the papers in the case, with directions to attend to the matter at as early a day as possible, and report their whole action to the synod at its next regular meeting.
“ The session, when it shall have been constituted as above provided for, shall proceed, at as early a day as practicable, to adjudicate all the cases now pending in that congregation; until which time all further proceedings in the above cases are suspended.”
Said committee of synod, or a majority of them, having, by a notice published in the secular newspapers, called a congregational meeting, to be held at said Third or Walnut Street Church on the evening of the 2d day of January, 1866, a portion of the members of the congregation assembled at the church door at the time appointed, but finding the gates and doors barred and locked, by order of the session, proceeded to organize their meeting on the sidewalk of the street, in front of the church building; after which, the meeting was adjourned to a school-house in the vicinity, where the following resolutions and proceedings were adopted :
“Resolved, That this meeting reiterate the statements and desires expressed in petition to the session on the 23d of August last, and in the representation to presbytery on the 30th of that month, and in the petition to the synod at its recent session in this city — all drawn up by D. McNaughton on behalf of a majority of the congregation; and that if discipline is to be applied to the writer of said document, we also desire to be disciplined, as we heartily indorse the contents.
“Resolved, That the congregation now proceed to the election of additional ruling elders, four in number, for the reason, in addition to others, given in said petition, that the present acting elders, Gault and Watson, have [341]*341arbitrarily opposed every effort made by the members to exercise their right and privilege to hold a congregational meeting.
“Nominations for the eldership were now made in accordance with the terms of the resolution. B. F. Avery, D. McNaughton, D. McPherson, and James A. Leech, were elected unanimously.
“On motion of D. McNaughton, it was resolved, that the committee of synod be requested to be present at the ordination and installation of the elders elected; that the chairman of the committee of synod be requested to officiate on that occasion; that at 7 P. M., on the 9th of January, 1866, at the Walnut Street Church, be the time and place; and that notice is now given to the congregation of the election of trustees to be there held.
“On motion of D. McPherson, the clerk was directed to order and instruct the trustees of the church to have the church edifice open for the admission of the congregation on Tuesday, the 9th of January, 1866, at 7 P. M.”
On the evening of the 9th January, 1866, a meeting assembled at the church, but again found the doors closed, and were denied admission by the trustees, Fulton and Farley, acting under orders of Gault and Watson. A meeting being again organized on the sidewalk of the street, was thence adjourned to the German Lutheran Church on Grayson street, where the following proceedings were had:
“ On motion, it was then resolved, that the ordination and installation of ruling elders, elected at the congregational meeting on the 2d instant, be now proceeded with. D. McNaughton, an ordained elder, was then installed, and B. F. Avery and J. A. Leech were ordained and installed, with services by Rev. J. L. McKee, and were [342]*342declared to be a part of the session of Walnut Street Presbyterian Church.”
And the following preamble and resolutions were adopted
“ Whereas, George Fulton, one of the trustees of the church, has locked its doors upon the congregation; and whereas, Henry Farley, another of the trustees, has refused his consent to the opening of the doors :
. “Resolved, That our session be requested to lose, no time in ordering said trustees to have the church opened for our use (which order has already been given by the congregation), so that wherever the power lies, in the congregation or in the session, they may have no excuse for disobeying.
“Resolved, further, That in case said trustees, Fulton and Farley, still persist in withholding from the congregation the use of their building, a committee of three, consisting of Messrs. Avery, McNaughton, and McDougal, be appointed to take the necessary steps to obtain immediate and permanent possession of our church building, and to bring suit for damages in such sum as they may fix upon against Fulton and Farley, for wrongfully depriving us of our church property, and the details of said suit to be left to the discretion of the committee, and the expenses to be paid by the congregation.”
Subsequently, on several occasions, it was proposed by Avery, McNaughton, and Leech, as ruling elders, to organize the session of the church in conjunction with Watson and Gault; but they were not recognized by said Watson and Gault as ruling elders, nor admitted into the church building for the purpose of holding the session; and being thus excluded and rejected, they made the following formal declaration on the 12th day of January, 1866:
[343]*343“ We, B. F. Avery, D. McNaughton, and Jas. A. Leech, members of Walnut Street Presbyterian Church, elected to the office of ruling elders by the congregation, and ordained and installed by the committee commissioned by the synod of Kentucky for that purpose, considering that Joseph Gault and John Watson refuse to recognize us as members of session, assuming and asserting that they, and they alone, are the present acting session; therefore, in the name and on behalf of the congregation by whom we are elected, and in the name and behalf of the synod by whose power and authority we are ordained and installed, and in the name and by authority of said session, we protest against said Gault and Watson’s assumption, and against their refusal to recognize us as ruling elders. We protest that we will not recognize them but as a minority of the session who have been invited by a vote of the congregation to retire from active duty; nor will we recognize any of their acts as the acts of the session. We, as a majority of the present acting session, will proceed to adjudicate the business of this court and of the congregation, and adjourn to meet for that purpose on next Monday evening, at Elder Hackney’s residence.”
On the 1st day of February, 1866, said B. F. Avery, D. McNaughton, and B. L. McDougal, on behalf of themselves and about thirty-seven other members of said congregation, exhibited their petition in equity in the Louisville chancery court, against said John Watson, Joseph Gault, George Fulton, and Henry Farley, claiming that said Avery, McNaughton, and Leech had been duly elected and installed as ruling elders of said church, and as such, with said Hackney, composed a majority of the session, with authority to maintain the spiritual government and control of the church. They allege that [344]*344they, and those for whom they sue, constitute a large majority of the members of said church, who are entitled to its privileges; and that they, and those in whose behalf they sue, have been, and, unless prevented by the court, will continue to be, unjustly excluded from said building, when required for the transaction of official business; and that therein said Fulton and Farley have grossly violated their duty as corporators and trustees. They pray that, by order of the court, the church building may be opened for congregational and session meetings, as the congregation and session may require, and that Fulton and Farley be removed from office.
The general assembly of the Presbyterian Church in the United States convened in the city of St. Louis on the 17th of May, 1866, having referred to the committee on bills and overtures a “petition and memorial” of said B. F. Avery, D. McNaughton, J. A. Leech, and T. J. Hackney, as ruling elders in the Walnut Street Church in Louisville, praying for “ such redress as in the wisdom of the general assembly might seem just and necessary to redress the grievances of said church, as set forth in said memorial and petition,” on the 30th of May, 1866, adopted a report made by said committee, which, though not specially pleaded by the plaintiffs in the action, was, on the 2d day of June, 1866, filed by them, to be read as evidence in the cause. It is as follows:
“ Whereas, on the 2d day of January last, D. McNaughton, Benjamin F. Avery, and James A. Leech, were duly elected ruling elders by the congregation of said church, and, on the 9th day of January, the said D. McNaughton was installed, and Benjamin F. Avery and James A. Leech were duly ordained and installed ruling elders in said church; and whereas, the presbytery of Louisville, after the election of said elders, with the apparent design [345]*345of discrediting said election, denied to one of their number a seat in said presbytery, notwithstanding he had been duly elected to represent said church at a meeting of said presbytery; and whereas, it is evident that the peace of said church and their congregational rights are in great danger, unless this Assembly shall interpose its authority; therefore, this general assembly, by virtue of its authority and obligation to give advice and instruction in all cases submitted to them, does hereby declare that the said D. McNaughton, Benjamin F. Avery, and James A. Leech, are to be recognized and acknowledged as ruling elders in said church, and all church courts, and persons subject to, or- under the care of, this assembly, are solemnly enjoined to respect and sustain their authority as such.”
It is proper here to state, that at the presbytery of Louisville, which met in April, 1866, Mr. Watson appeared as a delegate to’represent the Walnut Street Church, by appointment of the old session, composed of Mr. McElroy, Mr. Gault, and himself; and Mr. Avery also appeared as a delegate to represent the same church, by appointment of the session, supposing himself, McNaughton, Leech, and Hackney, to be acting members of it. A committee appointed to examine and report of their respective claims to be received as delegates, made a report which reviewed at length and in very emphatic language repudiated the action of the synod of 1865, in appointing its committee to visit the Walnut Street Church, as well as the action of the meeting by which Avery and others claim to have been elected as ruling elders; and recognizing the appointment of Watson, rejected that of Avery as the delegate of said church; but before final action was had on said report, the presbytery adjourned to meet again in June, 1866, when- the report was adopted, but not until [346]*346after a part of the ministers and elders who at first composed the presbytery had withdrawn and organized themselves as a separate body, claiming to be the presbytery of Louisville, in connection with the general assembly, and which, as such, accepted Avery as a delegate.
The adoption of said report to the presbytery of Louisville was afterwards concurred in, and approved by the body which assembled and acted as the synod of Kentucky, at the city of Henderson, in October, 1866.
The defendants by their answers contested the validity of the election of Avery, McNaughton, and Leech as ruling elders, on several grounds, the consideration of which will, to some extent, involve an examination and construction of what is known as the constitution of the Presbyterian Church in the United States.
The chancellor, upon final hearing, adjudged and decreed that Avery, McNaughton, and Leech, together with Hackney, Watson, and Gault, were ruling elders, constituting the session of said church; and that the management of the property of said church, for the purposes of worship and other religious service, was committed to their care under the regulations of the Presbyterian Church-in the United States; and this judgment is before this court for revision on this appeal
As suggested in the argument, and apparently conceded on both sides, this is not a case of division or schism in a church; nor is there any question as to which of two bodies should be recognized as the Third or Walnut Street Presbyterian Church. Neither is there any controversy as to the authority of Watson and Gault to act as ruling elders; but the sole inquiry, to which we are restricted, as we conceive, is, whether Avery, McNaughton, and Leech are also ruling elders, and therefore members, of the session of the church.
[347]*347But before considering this question, according to any standard of decision in a judicatory of the Presbyterian Church, it becomes necessarry to determine, as a preliminary question, whether, inasmuch as the congregational meeting by which Avery and others claim to have been elected was called in pursuance of an order of synod, and its action was subsequently approved by the general assembly, it is within the province of a civil court to inquire into the validity of such election, even so far as to determine whether the authority claimed under it is or not absolutely void.
It is insisted for the appellees, that when the action of an ecclesiastical tribunal is drawn in question, the only question for a secular court is, is the matter decided of purely ecclesiastical cognizance? and that if it is so, the secular court must accept the judgment rendered .as final and conclusive, without inquiry as to the grounds or reasons for the decision, and even if it is wrong.
This is certainly true, in a qualified sense. It was said by the supreme court of New York, in the case of Robertson vs. Bullions, 9 Barbour, 134, that “ all the authorities agree that the civil courts cannot upon the merits overhaul the decisions of ecclesiastical judicatories in matters properly within their province.” To the same effect is the decision of the supreme court of Pennsylvania in the case of the German Reformed Church vs. Seibert, 3 Barr, 291, and also the opinion of this court in Shannon et al. vs. Frost et al., 3 B. Monroe, 258, in which it is held that “ this court having no ecclesiastical power, cannot revise or question ordinary acts of church discipline or excision.” The same principle is recognized in several other cases. But in none of those cases is it held, so far as we are aware, that where an ecclesiastical body or tribunal had transcended the scope of its authority, and attempted to [348]*348adjudicate a matter as to which it had no jurisdiction, such adjudication w.as nevertheless conclusive in a civil court. But in most of the decisions referred to an express or implied reference is made to the jurisdiction of the ecclesiastical court, and the principle decided is limited to subjects clearly within its province, according to the regulations or rules from which its authority is derived.
And in Smith vs. Nelson (18 Vermont, 566) the action of the associate synod, in dissolving the presbytery of Vermont, setting its members over to the jurisdiction of the Cambridge presbytery, suspending the ministers, and finally deposing them by the presbytery of Cambridge, is elaborately reviewed, and decided to be void for want of authority, and from the irregularity of the proceedings.
While we recognize the principle as firmly and correctly established, that civil courts cannot, and ought not, to rejudge the judgments of spiritual tribunals, as to matters within their jurisdiction, whether justly or unjustly decided, we cannot accept as correct the principle contended for in the argument for the appellees, that whether the synod had jurisdiction and power over the subject on which it acted under the presbyterial system, is a question purely ecclesiastical, to be settled by the synod itself and the general assembly. 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 be protected.
[349]*349Especially 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 the violation of a contract, or the fundamental law of a voluntary association.
If those having control of church property and priv_ ileges in a Catholic or Episcopal organization in this country, should attempt to transfer them to the use of another sect or denomination, in violation of the fundamental principles of such organization, and to the destruction of the very objects for which their authority was conferred; or even if a majority of the members of a Baptist or other congregational church should determine to sell and appropriate to individual use their [350]*350church edifice, erected by means of individual donations, or the contributions of its members, as a house of worship, can it be said that a civil court may not interpose to give relief or protection against acts so flagrantly void, for want of jurisdiction or authority for their commission ?
It has, we think, been unnecessary that this court should be reminded by the distinguished counsel for the appellees, that, “ if the action of church courts, upon matters purely religious, is to be revised by the civil tribunals,” the country should know that such is the course to be pursued in this State. We are conscious of no purpose to depart from precedent, or to disregard authority on this subject; and we adhere to the principle recognized by this court in Gibson et al. vs. Armstrong, &c., 7 B. Monroe, 481, that, in deference to the rights of church tribunals, a civil judge should “lend a reluctant ear to a claim founded on the alleged invalidity, in view of the law of the church, of an act done in the accustomed manner by the accustomed organ of authority.” And, as suggested by the counsel, if there have been irregularities in the action of church courts, it were better “ to let them settle their quarrels in the bosom of their churches than drag them before the civil tribunals.” But while it is true that the appellants have, in defense of the suit, assailed the action of the Synod and General Assembly as invalid, it cannot escape observation that it was the appellees who invoked the aid of the civil court in this case, and sought to question the action and conduct of those ruling elders who, in opposition to them, assumed to continue to control the use of the church, as they had been accustomed to do, as the recognized session of the church.
The question being then raised, and by the 'plaintiffs themselves, whether the session of the church consisted, [351]*351as formerly, of the acting pastor, and Watson, Gault, and Hackney; or of them and Avery, McNaughton, and Leech, in addition, and the control of the church property being involved in this question, we must decide it as we do all other civil controversies brought to this court.
It seems to us, without elaborating this particular inquiry further, that if it be true, as insisted for the appellants, that the election of Avery, McNaughton, and Leech, was void for want of constitutional authority in the synod to direct it, or the assembly to ratify it, or for any other cause, it was within the power and was the duty of the chancellor to so decide; and to determine that question, it now becomes necessary to inquire into the validity of the proceedings under which, the appellees insist, that Avery, McNaughton, and Leech are duly elected elders of the Walnut Street Church.
In the progress of the cause in the court below, the parties filed the following agreement:
“ It is hereby agreed, that, upon the trial of the above cause, the following described printed documents may be produced in evidence by either party, and used in the same manner and with the same effect as if the original documents, of which they purport to be copies, had been produced before competent witnesses, under a regular commission upon interrogatories, and regularly proven by them, viz :
“1. Baird’s Digest of the Acts of the Assembly. 2. The Constitution of the Presbyterian Church in the United States of America, containing the Confession of Faith, the Catechism, and Directory for the Worship of God, together with the plan of government and discipline, as ratified by the General Assembly at their session in MAy, 1821, and amended in 1833. 3. The minutes of the Gen[352]*352eral Assembly of the Presbyterian Church in the United States of America, for the years 1861-2-3-4-5-6, respectively. 4. The minutes of the Synod of Kentucky, met in Louisville, October, 1865, and again at Henderson, October, 1866. 5. The Declaration and Testimony.
“ The sole object of this agreement is to admit that the said printed documents are correct copies from the originals, which original documents were adopted by the bodies and in the manner and form as declared and set forth in said printed documents.
“All objections to the relevancy of said documents, or any part of them, by either party, or-to their production or use as evidence, upon any grounds other than a deficiency of proof as to their adoption by the bodies purporting to have adopted them, or the correctness of the printed copies, are reserved to either party, &c.”
We have set out the foregoing agreement for the purpose of showing how the printed documents therein mentioned became connected with the record.
In reviewing the judgment of the chancellor in this case, upon a question which, in one aspect or another, involves the jurisdiction of the several judicatories of the Presbyterian Church, we feel that our duty as a civil court is rendered peculiarly difficult and embarrassing by the ecclesiastical nature of the subject.
We have set forth in our statement of the facts of this case the action of the synod, and proceedings under which Avery, McNaughton, and Leech, claim to have been elected as ruling elders in pursuance thereof, and the subsequent action of the general assembly in confirmation of their election. It remains to determine,from the constitution of the church, and the explanatory evidence in the cause, whether the election of said parties as elders was or not void, either for want of jurisdiction [353]*353in the synod to order it, or for want of jurisdiction in the general assembly to declare it valid, if otherwise-invalid ; or for irregularity in the calling or action of the congregational meetings of the 2d and 9th of January, 1866.
The Presbyterian Church in the United States, unlike the mother church in Scotland, has not at any time been connected with the civil government; and in this, and some other particulars, it differed from the mother church in the principles and arrangement of its government, before the adoption of its constitution in 1788. At that time the synod of New York and Philadelphia was the highest tribunal in the church. It adopted the constitution, and by it the general assembly was created and established as the highest judicatory of the church.
The constitution defines and prescribes the powers of a gradation of courts or bodies, in which the spiritual government of the church is vested, consisting of—
1st. The session, composed of the pastor or pastors and ruling elders of a particular congregation.
2d. A presbytery, consisting of all the ministers and one ruling elder from each congregation within a certain district.
3d. A synod, composed in like manner as a presbytery of ministers and elders within a larger district, including at least three presbyteries.
4th. The general assembly, consisting of delegations from the various presbyteries.
It is not controverted that each of these bodies above the session may, in the exercise of an appellate or revisory jurisdiction, review and affirm of reverse the judgments of the one next below it, and that, by a series of appeals, the decisions of a session may ultimately be carried before the general assembly. But it [354]*354is insisted for the appellants that the action of both the synod and the general assembly, concerning the election of additional elders in the Walnut Street Church, was an unauthorized assumption of an original jurisdiction, primarily to be exercised by the session alone, subject to the visitorial power of the presbytery. While, on the other side, it is contended, in accordance with the opinion of the chancellor, that besides the admitted revisory powers of the synod and assembly, they respectively possess a primary and original jurisdiction, commensurate and concurrent with that of each inferior judicatory, and that the action of each of those bodies, in relation to the Walnut Street Church, was within the scope of its jurisdiction, and therefore valid.
It becomes necessary, in considering these conflicting theories, to set out and examine certain provisions of the constitution, in the construction of which the parties mainly differ.
The 6th section of chapter 9, of the form of government, is as follows:
“ The church session is charged with maintaining the spiritual government of the congregation; for which purpose they have power to inquire into the knowledge and Christian conduct of the members of the church •; to call before them offenders and witnesses, being members of their own congregation, and to introduce other witnesses, when it may be necessary to bring the process to issue, and when they can be procured to attend; and to receive members into the church; to admonish, to rebuke, to suspend, or exclude from the sacraments those who are found to deserve censure; to concert the best measures for promoting the spiritual interests of the congregation, and to appoint delegates to the higher judicatories of the church.”
[355]*355Under the general supervision of the affairs of the congregation thus conferred on the session, it is claimed that the question of ordering the election of additional elders was one to be determined by it as the primary judicatory of the Walnut Street Church.
The 8th section of chapter 10, of the same book, provides :
“ The presbytery has power to receive and issue appeals from church sessions, and references brought before them in an orderly manner; to examine and license candidates for the holy ministry; to ordain, install, remove, and judge ministers; to examine and approve or censure the records of church sessions; to resolve ques-; tions of doctrine or discipline, seriously and reasonably proposed; to condemn erroneous opinions, which injure the purity or peace of the church; to visit particular churches for the purpose of inquiring into their state, and redressing the evils that may have arisen in them; to unite or divide congregations, at the request of the people ; or to form or receive new congregations, and in general to order whatever pertains to the spiritual welfare of the churches under their care.”
And section 4, of chapter 11, declares, that—
“ The synod has power to receive and issue all appeals regularly brought up from the presbyteries; to decide on all references made to them; to review the records of presbyteries, and approve or censure them; to redress whatever has been done by presbyteries contrary to order; to take effectual care that presbyteries observe the constitution of the church; to erect new presbyteries, and unite or divide those that were before erected; generally to take such order with respect to the presbyteries, sessions, and people under their care, as may be in conformity with the word of God and the [356]*356established rules, and which tend to promote the edification of the church; and finally to propose to the general assembly for their adoption such measures as may be of common advantage to the whole church.”
Such powers of the general assembly as are deemed essential to this inquiry are conferred by the 4th and 5th sections of the 12th chapter of the form of government, and are as follows:
“ IV. The general assembly shall receive and issue all appeals and references which may be regularly brought before them from the inferior judicatories. They shall review the records of every synod and approve or censure them; they shall give their advice and instruction in all cases submitted to them in conformity with the constitution of the church; and they shall constitute a bond of union, peace, correspondence, and mutual confidence among all our churches.
“V. To the general assembly also belongs the power of deciding in all controversies respecting doctrine and discipline; of reproving wrong or bearing testimony against error in doctrine, or immorality in practice in any church, presbytery, or synod; of erecting new synods when it may be judged necessary; of superintending the concerns of the whole church; of corresponding with foreign churches, on such terms as may be agreed upon by the assembly and the corresponding body; of suppressing schismatical controversies and disputations, and in general of recommending and attempting reformation of manners, and the promotion of charity, truth, and holiness, through all the churches under their care.”
Our quotations of the provisions of the constitution, concerning the jurisdiction of the session and of presbytery, have not been made for the purpose of determining any question as to the primary duties enjoined upon [357]*357them by the constitution, but for the purpose of showing more distinctly the relations which the several judicatories of the church bear to each other, as affecting the question of original and concurrent jurisdiction in the synod and general assembly.
It cannot be pretended that either the synod or assembly, in its action in regard to the Walnut Street Church, assumed to exercise its authority as an appellate court. The session of the church had in fact rendered no decision to be revised in any superior judicatory. Therefore the validity of the order of synod, as well as of the declaration of the assembly, must depend solely and exclusively upon the correctness of the principle affirmed by the chancellor, that notwithstanding the primary jurisdiction of the subject vested in the inferior tribunals, and the right of parties aggrieved to appeal from their decisions, these higher courts also possessed original jurisdiction of the subject.
As to the power of the synod, it will readily appear, upon examining the section of the constitution conferring its .authority, that if it possessed original jurisdiction at all to order the election in Walnut Street Church, it is granted in these words: “ generally to take such order with respect to the presbyteries, sessions, and people under their care, as may be in conformity to the word of God and the established rules, and which tend to promote the edification of the church.” This apparently general direction is immediately preceded by the grant of many specific powers, so defined as to indicate a purpose to declare specially those which it was intended the court should exercise.
But if the words, “ to take such order as may be in conformity with the established rules f mean anything, they have reference to the other provisions of the constitution, [358]*358and among them those conferring the jurisdiction and prescribing the duties of the inferior courts, and operate ■to restrict the action of the synod to a general exercise of its own powers, without encroaching on those of the other courts; and this is our interpretation of the clause, as that which seems to us most consonant with the spirit of the constitution and the established rules of construction.
Liable as we think the action of the synod is to the objection that it is contrary to the constitution, the declaration of the general assembly is not less so.
Keeping the fact in view that both of said bodies acted as courts of original jurisdiction, and not in the exercise of their appellate or merely corrective authority, it is worthy of consideration, that 'while the constitution, in the book of discipline, provides in plain and explicit language that “ every kind of decision which is formed in any church judicatory except the highest, is subject to the review1 of a superior judicatory;” and the several modes of bringing such decisions before the higher courts are clearly prescribed, and nothing concerning them is left to vague construction, there is no express provision anywhere in the constitution authorizing either of those bodies to supersede or displace the church sessions, and take upon themselves the immediate spiritual government of the congregations.
The chancellor seems to have based his decision mainly on the declaration of the general assembly, whose jurisdiction he holds to be “ original as well as appellate;” and he illustrates the difficulty of locating the original jurisdiction claimed, on any particular provision of the constitution, by intimating the opinion that the assembly, in assuming to act “ by virtue of its authority and obligation to give advice and instruction in all cases submitted to them,” did not state the true grounds of jurisdiction.
[359]*359Upon a careful examination of the provisions of the constitution conferring and defining the jurisdiction of the assemby, it does not seem to us that, either on the grounds recited in its declaration or any of those enumerated by the chancellor in his opinion, it is clothed with the original jurisdiction claimed for it on behalf of the appellees.
If it be true that the election of Avery, McNaughton, and Leech was invalid for want of power in the synod to order it, or for any other reason, and those gentlemen were not therefore ruling elders at the time the assembly put forth its anomalous declaration, had the assembly the power by that declaration to bring them into official existence — elected, ordained, and installed ruling elders in the Walnut Street Church? And if this extraordinary power existed, what was the character of the act of exercising it? Was it an appointment or an election?
The constitution makes no provision for the appointment of ruling elders; but in the 2d section of the 13th chapter of the form of government, it expressly dedares, that “ every congregation shall elect persons to the office of ruling elders.”
Shall it be said, however, that although the assembly could not substitute itself for the congregation of the Walnut Street Church, and elect for it additional ruling elders according to the requirements of the constitution, it yet had power, by a declaration of ratification, to impart vitality and validity to proceedings which were otherwise unconstitutional and void? But however absurd the idea of attempting to affirm a void judgment, or give constitutional sanction to an unconstitutional proceeding, to have done so would have required an exercise of appellate, and not of original j urisdiction; and it is not claimed, and cannot be, that [360]*360the assembly acted in any such capacity. No appeal had been prosecuted; nor was any decision of session, presbytery, or synod before the assembly for revision, in any of the modes prescribed by the constitution.
It is true, it is insisted that both the synod and assembly derived jurisdiction of the subject, as on complaint by the petitions of McNaughton and others; but as the constitution expressly defines “ a complaint ” to be a representation “ respecting a decision by an inferior judicatory, which, in the opinion of the complainants, has been irregularly or unjustly made,” and as there was no decision or judgment to be reviewed, upon complaint or otherwise, the argument imports no more than the assertion of original jurisdiction.
For obvious practical reasons, it seems to us'to be inconsistent with the very objects of the system of judicatories in the Presbytei’ian Church, that its highest tribunal should have primary cognizance of the local affairs of particular congregations. Could it have been contemplated by those who formed the constitution that this high court, representing the different presbyteries of the United States, concerned, as it must be, during its brief annual sessions, with matters of vast importance to the whole church, could, as a court of original authority, hear and decide the various controversies and questions of conduct and discipline, which might arise in the congregations of the church! How could ■it do so ? It has no power, by civil process, to coerce the attendance of witnesses; and they could not • be expected to travel hundreds of miles to testify in such matters, even if the assembly was not disqualified by its numbers and more important duties to transact such business.
There is nothing in the analogy, which is supposed to exist between the government of the church and the [361]*361Federal and State governments, to sustain the latitudinous construction of the powers bf assembly, under the constitution, contended for on the part of the appellees.
In the civil system, as in the Presbyterian Church, there is a gradation of inferior and superior courts; but generally the jurisdiction of the higher courts is not original, but revisory and corrective only.
Although the practice of the assembly itself, with reference to its constitutional powers, seems not to have been uniform, or such as to be entitled to controlling influence in this case, it does not seem to accord with the chancellor’s opinion that those powers “ are as general as can be expressed.” On the contrary, it has been affirmed by the assembly that “ the constitution of the Presbyterian Church, like that of our National Union, is a constitution of specific powers, granted by the presbyteries, the fountains of power, to the synods and the general assembly;” and that “ no powers not specifically granted can lawfully be inferred and assumed by the general assembly, but only such as are indispensably necessary to carry into effect those which are specifically granted.” (Baird’s Digest, 722.)
■ The testimony of several witnesses examined in this cause with reference to the action of both the synod and assembly, should not be overlooked. Those witnesses are Rev. George Junkin, of Pennsylvania, Rev. H. J. Vandyke, of New York, and Rev. Stuart Robinson and Rev. S. R. Wilson, of Kentucky, whose depositions, taken by the defendants, show them qualified by experience and study to testify to a knowledge of the laws and usages of the Presbyterian Church.
Their testimony (which was admitted without objection in the court below) was, we think, at least competent to prove the usage of the church, and the [362]*362meaning accepted by it of the terms and language of its laws, and, if necessary, to prove the laws of the church themselves. (1 Greenleaf, sec. 295, and note 1; 8 B. Monroe, 307.)
According to their explanations of the laws and usages of the church, the action of both the synod and the general assembly, in regard to the election of additional ruling elders in the Walnut Street Church, was unconstitutional and void.
Another grave objection is taken to the election of Avery and McNaughton as elders. It is insisted for the appellants, that, in consequence of the pending charges against them, they were not constitutionally eligible to the office of ruling elder.
In section 2 of chapter 13 of the form of government, providing for the election of elders and deacons, it is declared, that “ in all cases the persons elected must be male members in full communion in the church in which they are to exercise their office.”
According to the testimony of Dr. Junkin and others, a church member who has been cited, and so put under process of trial for any improper conduct, is not a member in full communion.
But however this may be, and whether certain other objections to the regularity of the proceedings of the meetings of the 2d and 9th of January, 1866, are properly taken or not, we are of the opinion that the said order of the synod, directing said election of additional ruling elders in said church, was contrary to the constitution of the Presbyterian Church, and not obligatory upon the session and congregation of said Walnut Street Church ; and said Avery, McNaughton, and Leech, not having been elected as ruling elders according to the laws and regulations of the church, were not thereby [363]*363constituted ruling .elders, nor were they so constituted by said declaration of the general assembly.
And the judgment of the chancellor, which commits the management and control of said church property to said Avery, McNaughton, and Leech, in conjunction with said Watson, Gault, and Hackney, is therefore deemed erroneous.
Wherefore, the judgment is reversed, and the cause remanded for proper corrective proceedings respecting the possession, control, and use of the church property, and for final judgment in conformity to this opinion.