compel performance. The judicial department of the government alone is, in the modern state, authorized to do such things. Such an organization can be safely left to the courts of remedial justice. Their powers and processes are sufficient for the defense of individual rights against any attempt upon its part to exercise undue power. If, however, we find within the state an association which may compel a member beyond his contract, or interpret in last instance the contract, or compel performance, then we have an organization exercising civil powers, and the government of the modern state is bound to do one of three things, namely, dissolve it altogether, or strip it of such powers, or adopt it as a governmental organ ad haec. In the latter case the government must place it under strict legislative and administrative supervision and control, as distinguished from mere judicial control; and must exercise revising and preventive powers over its acts as distinguished from a mere remedial power. These are the general principles according to which the relations of the government to any association within the territory subject to its jurisdiction should be determined.

Our final question is now: To which of these classes of associations do the religious organizations within the modern states belong? We may say that the great states of modern Europe agree substantially in assigning the religious organizations to the latter class, that is, to the class of public associations or institutions, and in subjecting them to the legal limitations and governmental control pertaining to their order.1 They have found by experience that the great historic organizations of religion cannot be dealt with by the judicial power alone and on the theory of contract; that they exercise a power over the individual member beyond the control of the rule of mutual agreement; that they cannot be abolished or stripped wholly of this power; and they have therefore undertaken to settle the relations between them and the government under the view that they are public institutions, which must be intrusted with larger powers than mere private associations, and must therefore be subjected to a different and much stricter control. Consequently the administration of their properties is placed under governmental audit and approval. Their rules of discipline are limited by the law, and the application of them made subject to appeal to governmental organs for revision or cassation. The appointments to their higher stations can proceed only with governmental approval. The education of their clergy is directed, in considerable degree, by law. Even the enunciation of new doc

1 Hinschius, Staat und Kirche, S. 249 ff.

trines, the publication of proclamations and pastorals, and communications from persons outside of the jurisdiction of the particular government, are in many cases illegal unless furnished with the consent of the government. The purpose of these restrictions and this control is the maintenance of the rights of the individual and of the security of the state against the tyranny and the disloyalty of the associations. No one who reads European history closely and with understanding can fail to see that these means are both necessary and effective, and that any other manner of dealing with these organizations would be full of danger to the freedom of individual conscience and to the peace of the public. The European jurists have taken these organizations as they find them, and have generalized the principles of the relations which should subsist between them and the government from history and present conditions, and are now no longer duped by the highsounding phrase of "the free church within the free state."

In the United States, on the other hand, we have a very curious condition of the law upon this subject, which does not, however, proceed so much from contradiction between statutes or judicial decisions as from confusion in fundamental principle. The law is fixed and uniform, but scientifically unintelligible. In the great and decisive case upon the point under consideration, namely, that of Watson v. Jones, reported in the thirteenth volume of Wallace's U. S. Supreme Court Decisions, the religious organizations in this country are classed in name as private associations, and are then recognized as in the exercise of powers belonging to public corporations, with the purpose of liberating them from the jural restrictions resting upon the former class, while, in all true political science, the legitimate effect of such recognition would be to place them under the far more stringent supervision and control of the legislative and executive powers of the government. In order that the position of the court and our criticism upon it may be clearly understood, we will give a brief account of the case, and quote the point and principal dicta of the decision. We would state at the outset that the reason why this case came finally before the United States courts was, that one of the parties was a resident of the commonwealth of Indiana and the other of that of Kentucky. The jurisdiction of the United States courts was founded wholly upon this fact. The law applied by the court was therefore commonwealth law, in so far as it harmonized with United States law, and not simply United States law. Neither was it the particular statute law of the commonwealth, as will be seen when

we come to recite the decision; nor the general common law as modified by the particular statute law; nor the general common law as interpreted by the courts of the particular commonwealth, in this case, on the other hand, their interpretation was reversed,— but it was the general common law of the whole United States as interpreted and applied by the highest judicial body in the United States. We may therefore fairly say that it is the whole law in our dual system upon the subject, unless the constitutional or statute law of a particular commonwealth should otherwise ordain, which would, under our present system of distribution of governmental powers, create a different rule for that particular commonwealth.

The object of the suit was to settle the title to the property in the Walnut Street Presbyterian Church in the city of Louisville, Kentucky. The parties each claimed to represent that organization. The principal occasion of this state of things was the fact that the General Assembly of the Presbyterian Church in the United States, the central and highest judicatory of that body, as the "Form of Government" puts it, had in May of 1865 decreed that voluntarily aiding in the war of rebellion and holding the doctrine that negro slavery in the South was a divine institution were sins, which must be recanted by every person from the Southern States making application for membership or office in any Presbyterian Church, before such application could be considered. The Presbytery of Louisville and the Synod of Kentucky repudiated this act of the General Assembly as a usurpation of authority, as a violation of the constitution of the Presbyterian Church in the United States. The parties in possession of the Walnut Street Church property at the time of the beginning of the suit before the United States courts were in sympathy with the above-mentioned resolution of the General Assembly of the Presbyterian Church in the United States, as it called itself, although but few presbyteries south of the old slave line were represented therein at the time the resolution was adopted. These parties were therefore recognized by the General Assembly as the true Walnut Street Church. The parties seeking the property, however, were in possession of an order from the Court of Appeals of the Commonwealth of Kentucky, which court had decided that the introduction of the resolution of May, 1865, into the creed of the Presbyterian Church, by vote of the General Assembly, was a violation of the constitution of the church, was therefore a breach of the contract between the members thereof, and therefore

null and void. The order commanded the chancellor of the chancery court at Louisville to restore the Walnut Street Church property to the persons mentioned therein. Whereupon one Jones, of the party in possession, a resident however of Indiana, applied to the Circuit Court of the United States for an injunction restraining the chancellor from executing the order. The Circuit Court issued the decree of injunction, and one Watson, as representative of the party seeking possession of the property, appealed the case to the Supreme Court of the United States, and it is therefore from the supreme interpreting power in our system of government that we have the law upon this subject. We will quote the decision verbatim upon the point under consideration :

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Religious organizations come before us in the same attitude. as other voluntary associations for benevolent and charitable purposes, and their rights of property, or of contract, are equally under the protection of the law, and the actions of their members subject to its restraints. . . . The questions which have come before the civil courts concerning the rights to property held by ecclesiastical bodies, may, so far as we have been able to examine them, be profitably classified under three general heads, which of course do not include cases governed by considerations applicable to a church established and supported by law as the religion of the state.

"1. The first of these is when the property which is the subject of controversy has been, by deed or will of the donor, or other instrument by which the property is held, by the express terms of the instrument devoted to the teaching, support, or spread of some specific form of religious doctrine or belief.

"2. The second is when the property is held by a religious congregation which, by the nature of its organization, is strictly independent of other ecclesiastical associations, and so far as church government is concerned, owes no fealty or obligation to any higher authority.

"3. The third is where the religious congregation or ecclesiastical body holding the property is but a subordinate member of some general church organization in which there are superior ecclesiastical tribunals with a general and ultimate power of control more or less complete, in some supreme judicatory over the whole membership of that general organization. . . .

"The third of these classes of cases is the one which is oftenest found in the courts, and which, with reference to the number and

difficulty of the questions involved, and to other considerations, is every way the most important. It is the case of property acquired in any of the usual modes for the general use of a religious congregation which is itself part of a large and general organization of some religious denomination, with which it is more or less intimately connected by religious views and ecclesiastical government. The case before us is one of this class, growing out of a schism which has divided the congregation and its officers, and the presbytery and synod, and which appeals to the courts to determine the right to the use of the property so acquired. Here is no case of property devoted forever by the instrument which conveyed it, or by any specific declaration of its owner, to the support of any special religious dogmas, or any peculiar form of worship, but of property purchased for the use of a religious congregation, and so long as any existing religious congregation can be ascertained to be that congregation, or its regular and legitimate successor, it is entitled to the use of the property. In the case of an independent congregation we have pointed out how this identity, or succession, is to be ascertained, but in cases of this character we are bound to look at the fact that the local congregation is itself but a member of a much larger and more important religious organization, and is under its government and control, and is bound by its orders and judgments. There are in the Presbyterian system of ecclesiastical government, in regular succession, the presbytery over the session or local church, the synod over the presbytery, and the General Assembly over all. These are called, in the language of the church organs, 'judicatories,' and they entertain appeals from the decisions of those below, and prescribe corrective measures in other cases. In this class of cases we think the rule of action which should govern the civil courts, founded in a broad and sound view of the relations of church and state under our system of laws, and supported by a preponderating weight of judicial authority, is that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them."

The rights of property of a particular congregation were then decided upon the principles here advanced, and the decree of the Circuit Court affirmed. In other words, the Supreme Court of the United States has declared it to be the fundamental law of the land that the interpretation which the highest "judicatory" of