#### *Jacob Harmon et al.*vs. *Godfrey Dreher et al.*

1. In 1787, certain ministers, partly of the Lutheran and partly of the Reformed or Presbyterian denomination, hut all oí them of German Protestant Congregations, convened and formed themselves into a Ministerial Society.

2. The congregations composing this Society were, by an Act of the Legislature, passed in Feb. 1788, (8 Stat. at Large, 144,) incorporated as *“*The Ecclesiastical Union of the several German Protestant Congregations in the back part of the State of South Carolina.”

3. On the 18th of August, subsequent to this Act of incorporation, certain of the ministers, together with fourteen lay delegates of the various congregations, (fifteen in number,) assembled, read the Act of incorporation, proposed a system of discipline consisting of various articles, which was considered, adopted, signed and sealed.

4. It was declared that the congregations incorporated, should form one *corpus evangelicomm,*under the title of *Unis Ecclesiastica*of the German Protestant Churches in the State of South Carolina — that “ each and every congregation is depending on this *corpus;*by which all things concerning Church and religion shall be managed and directed, and the free course of the gospel be promoted within its bounds.” It was provided that this union should not deprive the members of the respective denominations (Lutheran and Reformed) who belonged *to*the associated congregations, of their dis-*88
      *tinctwe, denominational character,*but that each should continue to enjoy his rights and privileges. Each member was bound to attend, when cited, before the officers composing the General Directory.

*5.*Each congregation, by and with the approbation of the General Directory, was to elect its own Pastoi, to appoint, annually, Elders and Wardens, keep a register of its proceedings, and in every congregation the articles of union were to be kept and subscribed by every member.

6. It was further provided, that when the majority of any congregation belonged to the Reformed Church, the formula, catechism and liturgy adopted in the Palatinate, or Switzerland, were to be used; where the majority were Lutherans, the Wirtemberg or Haile formula.

7. A general directory for the government of the United Churches, was stipulated to be kept up, so long as a majority of said Churches agree to the same; consisting of the Ministers of the associated churches, and two suitable Lay Delegates from each church; to which directory, belonged the care of whatever might have an important influence upon the welfare of the associated body, as well as of each church; and it was further provided, that the directory should have power to alter, add to, or annul, any article, as experience might render *it*necessary to do so; and such amendment should become a part of the articles of union.

8. The particular churches, by virtue of their incorporation, were endowed with power to enact by-laws, in subordination to the general constitution.

9. The association thus constituted, continued to meet till January, 1789, after which date, there was no certain account of their proceedings. The body expired, but at what time, did not certainly appear.

10. The Rev. Mr. W., one of the ministers who had assisted in forming the Ecclesiastical Union, was the minister of a Lutheran Church, called St. John’s ; but part of the congregation living at an inconvenient distance from this church, it was determined to erect a new one for their accommodation. A survey of one hundred and twelve acres of land, on which St. Peter’s Church (now in controversy) was erected, was made, and a grant obtained to certain persons for the same, in “trust for the incorporated Church of St. Peter’s, on Camping Creek, and to their successors, trustees of the said church,” to have and to hold *“to*the said persons and to their successors, trustees of the said church.” This was done in anticipation of an Act incorporating the church, which was passed 17th December, 1794; and at the same time, the congregation of St. John’s was incorporated. -The Rev. Mr. W., officiated as minister m these churches from 1794, for several years, not accurately fixed by the testimony. Mr. W. was succeeded by a series of Ministers, as Pastors of St. Peter’s, but during his pastor-ship, neither of his churches ever became united to any Synodical body. *89His immediate successor was not connected with any general Ecclesiastical association. A Mr. M. supplied the pulpit of St. Peter’s for a few years, *who*was connected with the Lutheran Synod of North Carolina, His successor was -also a member of the Synod of North Carolina, but it did not appear, that at the annual Conventions of that body, St. Peter’s sent any lay delegate with him.

11. In 1824, six Lutheran Ministers, with some lay delegates, assembled and organized a Synod for South Carolina, and those parts of the South naturally connected with it. It was resolved, that the Augsburg confession should form the point of union among their churches. It did not appear that there was any lay delegate from St. Peter’s at this meeting, but this church was subsequently represented in the Synod, and contributed to its funds. The delegates always carried their commissions with them, which was required by a standing regulation of the Synod.

12. It also appeared in evidence, that the congregation of St. Peter’s, from time to time, petitioned the Synod for the services of a minister, (Rev. Mr. D.)

13. Mr. D. was in full connexion with the Synod, down to 1837. In 1834, Mr. D. was charged by one of the churches connected with the Synod, with unsound opinions, which, upon investigation by Synod, resulted in his acquittal, and the temporary restoration of harmony. Subsequently to the latter date, Mr. D. introduced into his pulpits, a preacher, holding opinions adverse to those entertained by the rest of the Southern Synods; and at the former date, it was recommended by a special committee, that he be declared “no longer a minister of our church, that he is beyond the control of our Synod, and that we are not responsible for his faith or conduct.” The report of the committee was unanimously agreed to.

14. The doors of the church were closed against that portion of it adhering to the Synod, by the adherents of Mr. D.; and the surviving grantee of the church land executed a deed for the same, to the Lutheran Congregation of St. Peter’s, which was delivered to the defendants opposed to the Synod.

15. The bearing of the case was, to elicit a judgment, which of the parties is the true Church of St. Peter’s, as incorporated, each claiming an exclusive right.

16. Mr. D., who was a defendant, put in a special plea in advance of his answer, in which he contended, that he was not a member of the congregation, and, therefore, not implicated in the trial of their rights — which was not sustained.

17. It was *held,*that as regards the expulsion of Mr. D. by the Synod, it belonged not to the civil power to enter into or review its proceedings.

*9018. In this country, no ecclesiastical body has any power to enforce its decisions by temporal sanctions. Such decisions are, in this sense, advisory — they are addressed to the conscience of those who have voluntarily subjected themselves to their spiritual sway; and, except where civil rights are dependent upon them, can have no influence beyond the tribunal from which they emanate. Where a civil right depends upon an ecclesiastical matter, it is the civil court, and not the ecclesiastical, which is to decide. The civil tribunal tries the civil right, and no more; taking the ecclesiastical decisions out of which the right arises, as it finds them.

19. This court cannot look into the regularity of the process by which an ecclesiastical body proceeds to its judgment. Every- competent tribunal must, of necessity, regulate its own formulas. Where, as well from the testimony, as from the terms of a charter incorporating a church, it is apparent that it was in full connexion with a synodical body, and not independent of it as a congregation, if a portion of it secede, the rest, however small their number, secure their corporate existence, and are entitled to all the privileges and property of the corporation — but before corporators can forfeit their membership, they must be proved to have seceded from the corporation of which they are members.

20. It seems that if a portion of corporators are *guilty of*such misconduct towards a body on which the corporation depends as tends to forfeit the con-nexion, while another portion still acknowledges the connexion and fulfils its duties, the faithful party will be entitled to stand for the corporation, and claim such remedies as may be necessary to avert the forfeiture.

This cause came up on an. appeal from a decree of his Honor Chancellor Johnston, before whom it was heard, at Lexington, June Term, 1841. The facts and the testimony connected with the case will be fully understood from the circuit decree.

Johnston, Ch. — -I have withheld the decision of this cause for a length of. time very unusual with me, not so much from the intrinsic difficulties of the case, though these are very considerable, as from a hope that an amicable adjustment might be effected. For I would not allow myself to believe, that parties professing that religion which, above all others, inculcates peace, humility and forgiveness of injuries, would reject the suggestions of Christian friends, proposing terms of reconciliation, or fail to seize with avidity the opportunities so frequently afforded, since the hearing, to accommodate a dispute so dishonoring to the Saviour *91whom they follow, so disreputable to themselves, and so destructive to the church. Being, now, painfully convinced that there is an unhallowed bitterness in this lamentable controversy, (arising, possibly, from circumstances which have not transpired,) which forbids the hope of reconciliation among the litigants, I am reduced to the deplorable necessity of delivering the judgment of a civil tribunal in a case of a spiritual nature. 1 unfeignedly profess, that no duty I have ever been called upon to perform, lias inflicted such pain upon me ; and there is no sacrifice that could have been reasonably demanded, which I would not have made, or that I would not now make, (if there were left any hope of its succeeding,) to compose the differences I am called upon to adjudicate.

This dispute originates in certain unhappy dissensions which have sprung up in the Lutheran Congregation of St. Peter, situated in Lexington, in the pine-wood between Broad River and Saluda.

This congregation was incorporated by a clause of an Act, passed the 17th of December, 1794, which declares, “that all those who have subscribed the petition for incorporating the Lutheran Congregation of St. Peter, who now are, and all those who shall be hereafter duly admitted or become members of that society, according to the rules, orders and constitution of the same, to be formed, shall be, and they are hereby, also, declared to be, a body corporate and politic, by the name and style of the Lutheran Congre-gration of St. Peter.” Certain transactions had previously taken place in the German Protestant Churches of this State, which we will notice here, as they may serve to explain the status- of this church, thus incorporated. It appears by the evidence, that on the 13th of November, 1787, a little upwards of seven years before this Act of incorporation, seven ministers, part of them belonging to the Lutheran, and part of them to the Reformed or Presbyterian denomination, but all being ministers of German Protestant Congregations, met at Zion Church, on twelve-mile creek, and formed themselves, by written articles, into a Ministerial Society. These ministers were the Rev’d. Frederick Daser, Christian Theis, J. G. Bamberg, M. Carl Binnicker, Fred. August Wallberg, Fred. Jos. Wallern, and Carl Fred. *92Froehlick. After adopting a constitution, and appointing Mr. Daser, Senior of the ministry, they adjourned to the same place, on the 8th of January following, “ to take into consideration the various petitions, signed by different German Protestant Congregations, and further to regulate the affairs of the society.’’

On the 8th of January, 1788, the same ministers met according to adjournment, with the exception of Mr. Wal-lern and Mr. Binnicker. Petitions for incorporation, subscribed by most of the congregations, were laid before the ministers. The next day, (January 9th,) tire meeting reassembled, and the congregations, through Messrs. Wall-berg and Bamberg, who were, probably, their ministers, sent in petitions, which, with those oí the other congregations, it was determined should be laid before the Legislature ; and the meeting adjourned, to re-assemble upon notice from the senior minister.

It appears, (see 8 Coop. Stat. 144,) that the Legislature, on the 29th of the next month, (February, 1788,) incorporated the following fifteen churches, constituents of “ The Ecclesiastical Union of the several German Protestant Congregations in the back part of the State of South Carolina” — to wit:

1. * The Frederician Church on Cattle’s Creek.

2. The German Calvinistic Church of St. John, on the Fourhole.

3. The German Lutheran Church of St. Matthew, in Amelia Township.

4. The German Lutheran Church of Salem, on Sandy Run.

5. The German Lutheran Church of Mount Zion, on Twelve-mile Creek.

6. The German Lutheran Church of St. Peter, on Eighteen-mile Creek.

7. The German Lutheran Church of Bethel, on High-hill Creek.

8. The German Lutheran Church of St. Martin.

9. The German Lutheran Church of Bethlehem, on Forest’s (Faust’s) Ford.

*9310. Tho German Protestant Church of Bethany, on Green Creek.

11. The German Protestant Church of Appii Forum, Cedar Creek.

12. The German Protestant Church, dedicated to Q,ueen Charlotte, on Slippery Creek, 96 district.

13. The German Lutheran Church of St. George, on Iiardlabor Creek.

14. The German Lutheran Church of St. Jacob, on Wa-teree Creek.

15. The German Protestant Church of St. George, on Indianfield Swamp.

On the 18th of August following this Act, Messrs. Baser, Theis, Bamberg and Wallberg, four of the ministers, assembled at Salem, (Sandy Run,) one of the incorporated and associated churches, together with fourteen lay delegates from the congregations; and, probably, in consequence of some misconception of the denominational character of Bethlehem, in the Act of incorporation, resolved that that church should, henceforth, be known as the German Reformed Church at Faust’s Ford.

The Act of incorporation was read, and a system of discipline proposed by President Baser, consisting of twenty articles, was considered, adopted, signed and sealed. It appears that Mr. Froehlick, a minister, then absent, after-wards signed and sealed it.

The first article declared that the congregations incorporated shall form one *corpus*evangelicorwm, under the title *Unis Ecclesiastica*of the General Protestant Churches, in the State of South Carolina; and that “.each and every congregation is depending on this corpus; by which all things concerning church and religion shall be managed and directed, and the free course of the Gospel be promoted within its bounds.” The second provided that this union should not have the effect to deprive the members of the respective denominations, (Lutheran and Reformed) who belong to the associated congregations, of their *distinctive denominational*character; but that each should continue to enjoy his rights and privileges. But by the fifth article, every such member was bound to attend, when cited, before the officers composing the general directory.

*94Each congregation was to elect its own pastor, by and with the approbation of the general directory; and was to appoint, annually, elders and wardens; and to keep a register of its proceedings. And in every congregation, the articles of union were to be kept, and subscribed by every member.

Where the majority of any congregation belonged to the Reformed Church, the formula, catechism and liturgy adopted in the Palatinate or Switzerland were to be used; where the majority were Lutherans, the Wirtemberg or Halle formula should be adopted.

A general directory for the government of the united churches was, by the 3rd article, stipulated to be kept up, so long as a majority of said churches agree to the same; consisting of the ministers of the associated churches, and two suitable lay delegates from each church ; to which directory it belonged to superintend all affairs relating to the churches; for instance, the reception and dismission of ministers; their education, election and ordination; the establishment and regulation of churches and schools; the manner of divine service; and, in short, whatever might have an important influence upon the welfare of the associated body, as well as of each church. And by the 20th article it is provided, that the directory should have power to alter, add to, or annul any article, as experience might render it necessary to do so; and such amendment should become a part of the articles of union.

* The particular churches, by virtue of their incorporation, were endowed with the power to enact bye-laws, in subordination, of course, to the general constitution.

This directory met again at Zion Church, on the 14th of January, 1789. The ministers present at that meeting, were the Rev’d. President Baser, Secretary Wallberg, and Messrs. Theis, Bamberg and Wallern. Lay delegates attended from the congregations; and while Mr. Baser was elected President of the directory, Mr. George Hook was appointed President of the Laymen.

At this meeting, the articles of union were again read; and Mr. Wallern was appointed to preach at the next ses*95sion, which was to be held at Salem, on Sandy Run, on the second Wednesday of August next ensuing.

These four sessions of their association, beginning in Nov. 1787, and ending in January, 1789, are all of which the fragmentory records of their proceedings that have descended to us give any account. However, the Rev’d. Dr. Hazelius, who was examined as a witness, testified that he had seen records of their' proceedings so late as 1794 ; but they were partly so torn, and partly so illegibly written, as to be unsusceptible of orderly arrangement, The body expired, but at what time does not clearly appear.

It will be observed that Mr. Wallern was one of the Ministers who assisted in forming this Ecclesiastical union; and that after its incorporation he sat in the directory, as one of its members, and took part in its deliberations, at the meeting of January, 1789, and that he was appointed to preach before the succeeding meeting.

This gentleman was the minister of a Lutheran Church, called St. John’s, whose congregation occupied a neighborhood near the present north eastern corner of Lexington. A part of the congregation living at an inconvenient distance from this church, it was determined to erect a new church for their accommodation. Accordingly, a survey was made, February 15th, 1794, of a tract of 112 acres of land, on which the present church of St. Peter’s in the pine-wood, is situated, and a grant was obtained for the same on the 5th of May following “ to Peter Jumper!, Ulrich Mayer, Senr., John B. Capelman, John Wern, Mathias Q,uattlebum, John Shealy, Lawrence Young, Thomas Frick and Nicholas Hamiter, in trust for the incorporated church of St. Peter’s, on the waters of Camping creek, and to their successors, trustees of the said church,” to have and to hold “ to the said Peter Jumpert and others, and their successors in the ■ said office of trustee for the said church.” The church building was erected by the joint labours of the new congregation. All this was done in anticipation of the Act incorporating the church, which, it will be remembered, was not passed until the 17th of December following. * At the same time, in the same Act, *96and in the same terms, the congregation of St. John’s, of which that of St. Peter’s was an offset, was also incorporated. Mr. Wallern, who was the minister of the former, becanfie the minister of the latter, and continued to officiate in both from 1794, for several years, not ascertained by the evidence. Then the Rev. Mr. Winkhouse became the Pastor of St. Peter’s, and preached to them for a number of years, not accurately fixed by the testimony. There is no evidence that after the expiration of the Ecclesiastical union of which I have spoken, Mr. Wallern, or either of his churches during his pastorship, ever became united to any Synodical body ; and it pretty clearly appears that Mr. Winkhouse was never, at any time, connected with any general Ecclesiastical Association. His habits were irregular.

He was succeeded as Pastor of St. Peter, by the Rev. Mr. Meetze, who supplied that pulpit for a few years. This gentleman was connected, I believe, with the Lutheran Synod of North Carolina.

Then succeeded the Rev. Michael Rauch, who was, and had been from about 1812, a member of the Synod of North Carolina, just mentioned. He acted as Pastor of St. Peter’s from about 1818 or 20, and remained a member of the North Carolina Synod up to 1824, although it appears that in the annual conventions of that body, the churches under his charge (for he supplied others as well as St. Peter,) did not send a lay delegate with him, as by the constitution of the body they were entitled *to*do.

In the progress of years, the churches of South Carolina, formerly constituting the Ecclesiastical Union of 1787, had dwindled away. Their ministers had died ; and inroads had been made upon them by emigration, and by the proselyting practices of other sectarians. Their youth had grown up without instruction, and had lost the influences of spiritual discipline. Still there lingered among them many of the aged who adhered to their faith; and there was not wanting even among the young, a generous and reverential recollection of the institutions of their fathers. Among the Lutherans, the people clung with pride to the name of the great reformer. A few ministers were raised up among them, or came to supply them. So few as not *97to be able, if willing, to constitute a respectable and efficient Ministerial Association ; and being far removed from other Synods, scarcely any of them maintained a connex-ion with such boches.' But a few years from the last traces we have of the Ecclesiastical Union of 1787, the only member of that association, and indeed the only Lutheran Minister, of whom wTe hear, within its district, was Mr. Wallern. Occasionally the desolated churches were visited by ministers from distant parts, who administered the ordinances to the people, and kept up a feeble organiza^ tion in the congregations. For the greater part of the time from the close, and some years before the close, of the last century, up to 1815 or 16, there were but two or three resident ministers. But these acted faithfully and diligently in their sacred calling, and at length their members began to increase.

After some preparatory movements, an assemblage took place on the 14th‘ of January, 1824. It consisted'of six Lutheran Ministers and five' lay delegates. The ministers were



Mr. Saiviuel Herscher, of Qrangeburgh.

Most of these ministers were members of the Synod of North Carolina. It is recorded in their proceedings that Mr. Dreher “ proceeded to detail the anterior rights and titles which were established by our ancestors in the year 1788, and sanctioned by the government of this State; for the benefit of the Evangelical Lutheran Churches, within the limits of its jurisdiction.” After consultation, it w7as determined to organize a Synod for South Carolina, and those parts of the South naturally connected with it. Mr. Dreher was chosen President, and Mr. Herscher Secretary of the new Synod.

It was resolved, that the Augsburg confession should form the point of union among their churches. Sundry other regulations were made relating to the qualifications, *98licensure and ordination of ministers; regulation of baptisms, (fee., the qualification of communicants ; and among the rest it was provided that for each, minister in the Synod, there should be allowed one lay deputy, to represent the church or college of churches under such minister ; the deputy to produce written evidence of his appointment.

Mr.-Rauch, it will be recollected, was at this time the minister of St, Peter, the church whose case is now before us, though it does not appear that there was any lay delegate from that church in this meeting. But it is in evidence that copies of its proceedings were published to that congregation.

It is material to pursue this statement with particularity, however fatiguing it may be, because one of the questions in the case is, whether the congregation of St. Peter ever acceded to this Synod. On the 18th of‘November, 1824, the Synod met for the second time. This meeting took place at St. John’s Church, in the immediate neighborhood of St. Peter’s. Two new ministerial members were added, in the persons of Mr. (now Doctor) Bach-man, of Charleston, and Mr. Bergman, from Ebenezer, in Georgia.

Mr. Jacob Rauch is set down as a delegate from St. Peter’s, but whether from the church of that name in the pine wood, or from the other church of St. Peter, which was under the pastoral care of Mr. Meetze, there is no evidence; unless the very slight circumstance of coincidence in the name of the deputy with that of the minister of the pine wood church, be regarded as evidence. Be this as it may, St. Peter’s, in connexion with Bethlehem and St. Paul’s Churches, also under the care of the Rev. Mr. Rauch, sent up contributions to the funds of the Synod, which funds were* entrusted to Mr. Dreher, who was chosen treasurer of that body ; an office which he continued to hold, by annual re-appointment, until about 1835.

The Synod met again in November, 1825, 1826, 1827, 1828, 1829, 1830; December, 1831; November, 1832, 1833, 1834, 1835, 1836, 1837, and still continues to meet annually. The meeting of 1836 was in a neighborhood *99very near to St. Peter’s, and the majority of these meetings took place in the same district.

Up to 1833, Mr. Rauch remained Pastor of that church, and during that whole time was never absent from any meeting of the Synod. During the whole time, and up to 1836, without a single exception, St. Peter’s continued her contributions to the funds of the Synod. In 1828, Michael Witt, Junr. appeared as the lay representative of this and the other,churches under the care of Mr. Rauch. In 1829, Jesse Bates came from St. Peter’s, itself, as the delegate of these collegiate churches. In 1830, Herman Aull came as a delegate from Mr. Rauch’s churches, though not a member of St. Peter’s. In 1833, Mr. Bates came again from St. Peter’s ; and in 1836, by which time that church had been placed under the pastoral care of Mr. Dreher, John H. Franklow appeared and sat as the delegate of the churches under the charge of that minister.

It is in evidence that these delegates always carried their commissions with them, which was required by a standing regulation of the Synod. A certificate appointing Mr. Franklow to the meeting of 1836, was produced; part of which is in the hand writing of Mr. Dreher, then Pastor of St. Peter’s. It certifies that Mr. Franklow was duly elected to represent the churches of which Mr. Dreher was Pastor, and is signed, among others, by Jacob Wheeler, Jacob Mayer, John Seas and Jacob Harmon, elders of St. Peter’s. Another paper, bearing date Nov. 1834, was produced, which, it appears by the minutes of the Synod of that year, was before that body; and imports that Mr. Rauch, while minister, did, on the 19th of October, 1833, resign his charge of St. Peter’s into the hands of Mr. Dre-her, in consideration that a majoriry of the congregation were in favor of that measure. It is therein stated to the Synod that the congregation, from the proof they have had of Mr. Dreher’s qualifications, are desirous that he should be continued as their minister for the next year. The paper is signed by thirty male members of the congregation, and among them by the elders. By the minutes of 1834, as I have stated, it appears that this paper was laid before the Synod, as a petition for the services of Mr. Dreher, and as such was considered, and the church was in con*100sequence committed to Mr. Dreher for the time specified in the application.

It also appears from the Synodical Journal of 1833, that a similar application had been made in that year, (probably in consequence of Mr. Rauch’s resignation,) and Mr. Dreher had been required to preach in this congregation as often as practicable.

In 1835, as appears by the Journal of that year, this church again sent up a communication to the Synod, stating that the congregation had elected Mr. Dreher as their Pastor, and petitioning that the election be confirmed.

I have thus stated the facts, (beginning with the Ecclesiastical Union of 1787,. which it was argued had a material bearing on the point,) from which a connexion between the Synod and St. Pfeter’s Church may be inferred. Before I close this statement, I must add, however, (what had nearly escaped me,) that it was proved that year by year, it was the habit of the Synod to print generally about 1000 copies Of its minutes for distribution among the 'congregations; and Mr. Rau'ch testified that he received copies and distributed them in the congregation of St. Peter’s Church. It is proper also to state, in relation to the mode of choosing the delegates by that congregation; that this was usually done by the minister stating that it was customary and proper for the churches to send a delégate ; he then named thé. person whom he preferred; and if no objection was made, he was declared to be the delegate, and received the cértificate of the elders.

It bow becomes necessary to state the facts relating to another point in the case. The subject is very painful, but necessary to be fully explained, because, in fact, this whole ‘case has arisen out of what I am about to state. I refer to the dissolution of the connexion between the Rev. Mr. Dreher and the Synod, which took place in 1837, while he was acting as the pastor of the chúrch so often mentioned. Whatever doubt may be entertained with regard to there being a connexion between the Synod and this congregation, there is none that Mr. Dreher was fully joined tó that 'consistory. He had been for many years a member of the Synod of North Carolina, before this Synod was formed. *101He was probably the most influential member of this at its formation ; and was chosen its first Presidentand then held the office of treasurer as long as by its constitution he w7as eligible to the appointment. I am very sure that the separation must have been indescribably painful, hot only to his colleagues but to him; and that the memory of all must revert with mournful pleasure to the spiritual con-nexion which once so happily existed between them, and to the many endearing associations to which it gave risé. Indeéd, it is impossible for any one possessed of the least generosity to contemplate the history of this Synod without emotion. A few humble, ministers, of feeble and dispirited 'churches, convened for the purpose of Corroborating the interests of their people by organization and concerted action. They are without funds and without the means of educating and training up sucbessófs to themselves in the sacred office of spiritual instructors. Their communicants are few and dispersed ; and they are without missionaries to collect them or add to their number. Yet, in the short space of thirteen years, by the exOrcise of an admirable energy, notwithstanding this almost hopeless beginning, this association néarly trebled tlieif communion; extended their territory by most spirited missiohary efforts ; planted new churches and strengthened the old; educated and brought into the ministry á greater numb'er of ministers than those who instituted' the Synod; and besides collecting and disbursing large sums in these ndblfe enterprises; accumulated and funded $10,000 to support a school and Theological Seminary, for still further extending and perpetuating their success. And besides this, they had in the treasury a large and productive balance for all contingencies. While wTe admire these liberal Operations, the fruits of pious conduct, and lament the discord which threatens to destroy what was so nobly projected and so happily begun to be executed, is it possible to dismiss the hope that in some h'appy moment the memory of what they have doné when united, may beget a relenting tenderness in the breasts of thos'e now separated Christian breathren; and that regretting their differences, those who are in the wrong will concede, and those who are less erring will forgive ?- I forbear to press the many topics which might be urged *102upon them, trusting that a contemplation of what is past must convince them how much their dissentions have wounded and retarded the cause which, while united, they shewed themselves so willing and able to advance; and duly impress them with the obligations they owe to their common Redeemer, as well as to themselves, to unite again to recover the ground they are in so great danger of losing.

But I must return from what may be regarded as beyond my official duty, to the case of Mr. Dreher. This gentleman, up to 1824, was a member of the Synod of North Carolina. Of what took place in that body, it is necessary only to notice, that about 1819 or 1820, certain persons now called Henkelites, or followers of one David Henkel, were separated from the Synod on account of certain alleged irregularities of doctrine and practice, which have been subjected to the general condemnation of the Lutheran Churches and Synods throughout the United States. In the proceedings of the North Carolina Synod, by which they were cut off and disowned, Mr. *Dreher bore*a large and influential part. It is not my business or purpose to express any opinion upon the justice or necessity of these proceedings, but simply to state the fact that they took place. The charge against the excommunicated party, and the allegation against the Synod which they have since formed for themselves, is that in doctrine they hold to dogmas inconsistent with the principles entertained by the Lutheran Church; and that in practice, they indulge a radicalism destructive not only of subordination and wholesome discipline, but of evangelical enterprise.

When Mr. Dreher came into the Synod of South Carolina and the adjacent States, (such is its style,) there is nothing to shew that he had the least sympathy with these sectaries. He co-operated zealously with his brethren in all their proceedings. In the formation of rules for the government of the Synod and the churches under its care, he was one of the most active, if not the most active member. And in the most energetic measure which ever took place in the body he acted as chairman, and bore the principal part of the proceedihg. I refer to the expulsion of the Rev. Mr. Herscher in 1825, (see minutes, p p. 6, 10.) If there was at any time an act of questionable accuracy *103performed by this Synod, it would seem to be the taking up a case against an absentee, and expelling him, without specific charges, without notice, and without trial. Yet, Mr. Dreher concurred in this measure ; and although the nature of the offence is nowhere stated, it is not difficult to conceive, of a case which might justify such a proceeding.

The principal measures of the Synod respecting the regulation of the discipline, from 1824 to 1837, when Mr. Dreher was separated from it, relate to the union of the Synod to the Synod of the United States, and the formation of a constitution for the government of the Synod itself, and the procuring that body to be incorporated. These all appear to have been acts of great deliberation and publicity ; although now complained of by the defendant.

The subject of connexion with the general Synod, seems to have been broached in 1830 — -yet, it was not till 1831, that a correspondence was opened with that body, leading to' that measure. It was voted that the congregations should be consulted. At the next session, (1832,) the subject was postponed; and it was not until 1833, after the most prudent inquiry, and the most satisfactory evidence that the powers of the general Synod were advisory merely, and then, not until the subject had been again committed, reported upon, and thoroughly considered, so that every member of the Synod, clergyman or lay delegate, was convinced of the safety, as well as the utility, of the union that was adopted.

As to the constitution, the caution • was equally great. The Synod had, from year to year, adopted certain standing regulations. A committee was raised, as early as the second meeting, in November, 1824, to draft rules. This committee was continued in 1825, Mr. Dreher among them. This committee was again continued in 1826. In 1827, the committee reported, but the consideration of the report was postponed. It appears, by the minutes of 1829, that the report consisted of a system of rules, in the form of a constitution; and in that year it was resolved, that the committee collect the regulations adopted at former meetings, and that the constitution be postponed. In 1830, the consideration of a constitution was further postponed. In *1041833, the subject was again postponed, and a committee, of which Me. Dreher was a member, directed to draft a constitution, and report next year. In 1834, the committee brought in the draft; after being laid on the table for due examination, it was taken up in committee of the whole, a lay delegate ip the chair, and after full consideration and amendment, it was unanimously adopted.

There is nothing in this constitution to startle the fears of the most jealous. It substantially embraces the rules which had, for years before, governed the body, and of which the congregations had the fullest notice by the journals of the previous years. The powers assumed by the Synod were barely sufficient to preserve organization ; too feeble, one would b.e apt to think, for discipline; and there runs through the whole, a studious exclusion of every thing that could possibly enslave the feeblest member of the church. So, much for the disciplinary power of the Synod; which has been much misrepresented, and very much misconceived.

I am now prepared to state the facts which eventuated in the separation of Mr. Dreher from the Synod ; though, as there are some points left obscure by the evidence, the statement cannot be otherwise than obscure. As early as the meeting of 1834, two communications, (of the particular contents of which the Court is not informed, as they were not put in evidence,) wrere laid before the Synod, coming from the church of St. Jacob, touching dissensions in that church. It appears, that in the discussions, Mr. Dreher was charged with unsound opinions, and Mr. Moser, another minister, with misconduct. The following minutes were entered.

“ Whereas, it has come to the knowledge pf this Synod, thropgh various communications addressed -to this body, that certain difficulties exist in St. Jacob’s .Church, Lexington district, which cannot be settled without the mediation of this Synod.

“ Therefore, Resolved, That a committee of four be appointed to take into consideration the difficulties in St. Jacob’s Church ; that this committee, in case of disagreement, be authorized to add a fifth ; and that they report to this body, at an early day, such information as they conceive *105necessary to be laid before this Synod; also, the best mode of settling the difficulties existing in said congregation.

“It was proposed, also, that each of the ministers involved in these difficulties, select one clergyman and one lay member, to compose this committee. The Rev’d. G. Dre-her, one of the ministers concerned, nominated Messrs. Bachman and Purse. The Rev’d J. Móser, the other minister concerned, nominated Messrs. Haltiwanger and Schir-mer. This nomination was confirmed by the Synod.” This was on Saturday, the 15th of November. On the next Monday, the committee, unanimously, brought in the following report:

“ The committee to which was referred the petition of St. Jacob’s Church, and other papers connected with difficulties existing in said congregation, respectfully report:

1st. That they would recommend that both the ministers who have recently officiated in St: Jacob’s Church, be required to discontinue their ministerial labors in said church, in order that harmony be restored.

2d. That the Synod enjoin on the members of said congregation, not to employ either of said ministers.

3d. That we recommend that the church be placed under the pastoral care of the Rev’d. Dr. Hazelius, who is required, in case of his being unable to attend, to supply his place from the Theological Seminary.

4th. That it be recommended to the congregation of St. Jacob’s Church, to appoint a day of humiliation and prayer, in special reference to the unhappy differences which have so long existed among them.

A number of papers have been referred to this committee, which properly belong to the Ministerium; to which body we refer them.”

• The Ministerium, to which the papers last mentioned in the foregoing report were referred, was a body consisting of the ministers, who, for certain purposes, sat apart from the lay delegates.

It appeal’s from the Synod’s Journal, that the reference had been attended to by the Ministerium, and on the next day, (Tuesday,) the President of the Synod laid their report before that body. The minute is as follows : “ The *106President offered the following report of the Ministerium, in relation to Messrs. Dreher and Moser, as information to the Synod. As certain unpleasant- difficulties, known to have existed for some months, between the Rev. Messrs. Dreher and Moser, calculated to destroy the peace of the church and materially to affect the usefulness of these brethren, were referred for adjustment to the decision of this Ministerium. After a patient and impartial *examination of the testimony*on both sides, the Ministerium unanimously come to the conclusion: 1st. That both of the Rev’d. Brethren, by lending too ready an ear to the vague and founded reports circulated against them, and giving way to the feeling of unkindness and suspicion towards each other, have, in the opinion of this Ministerium, trespassed against that spirit of love which should ever obtain among brethren, and which beareth all things, believeth all things, hopeth all things, and endureth all things.”

“In accordance with this decision, it was resolved: 1st. That the Rev. Messrs, Dreher and *Moser,' in*obedience to the earnest and affectionate request of this Ministerium, and in the spirit of mutual forbearance, do make such ac-knowledgements as shall be mutually deemed satisfactory; and that, forgetting all past differences, they will endeavor to be more united for the future. The brethren who had so long been estranged, acceded to the terms of this proposition, and promised to cultivate more friendly sentiments towards each other. 2d. As certain, doctrinal errors had been alledged against the Rev. G. Dreher, this gentleman consented, at the request of his ministerial brethren, to submit to an examination of his religious sentiments and views. And as the result of this examination, this Minis-terium take pleasure in stating, that from Mr. Dreher’s confession they found him sound in the faith, and deem it a duty they owe to their brother, to express their *unanimous conviction,*that there existed no sufficient grounds for the accusation of heterodoxy. 3d. As certain charges were made against the Rev. J. Moser, the ministerium examined the papers and documents relating to them, and as the results of this examination, this ministerium take pleasure in stating that the evidence is insufficient, and deem it a duty they owe to their brother to express their conviction that there existed no sufficient grounds for the accusation. *107The report was received as satisfactory to the whole Synod.” The report was adopted.

The next meeting of the Synod took place on Saturday the 14th of November, 1835. The constitution had been adopted at the previous meeting, by which the treasurer was required to be a layman. Mr. Dreher, who had been treasurer up to this time, was therefore ineligible. Nevertheless, it had been the habit of the Synod to refer the treasurer’s accounts to a committee, at the first of each meeting; but Mr. Dreher was absent from this assemblage, and that business was consequently delayed. Besides, it was required by the constitution, founded upon a very early rule of the Synod, that every minister should attend its meetings, unless prevented by unavoidable necessity, and that voluntary ministerial engagements should not be reckoned as amounting to such necessity. If necessarily absent, he was required to send a written apology; and it was required of the President to enforce this rule, by calling the delinquent to account upon his first appearance, if such apology was not sent and accepted. Mr. Dreher did not make his appearance until Tuesday, the third day of the session, when, in conformity with this rule, he was called upon for the causes of his delay in attending the meeting ; and stated he wTas prevented by an engagement to preach in one of his churches on the preceding Sunday. Of course, his excuse was not sustained. On the next day, it appears from the minutes, that a committee reported upon the accounts of Mr. Dreher as late treasurer; from which report it appeared that his accounts were duly vouched, and that the balance left in his hands in cash and securities, was $1,995 40 3-4 cents. Upon which he arose and acknowledged his grateful sense of the confidence so long reposed in him, and returned his thanks to the Synod for now relieving him from the burdensome duties of treasurer. The Synod voted thanks to him for his long and faithful performance of those duties. In the closing session, which took place the same evening, a proceeding took place which promised lasting harmony in the body. In the course of the year, it appears that Mr. Mealy, the President of the Synod, had visited Mr. Dreher, for the purpose of obviating certain feelings, which it was feared were *108alienating him from his clerical brethren; and at this closing session, Mr. Dreher, at the request of his brethren, signed the following pledge :—

“ I solemnly pledge myself to co-operate with my clerical brethren, in the spirit of true friendship, in the future, in promoting peace and harmony in the churches.

Godfrey Dreher.”

Here should have been a close of all litigation. The veil of oblivion should have been dropped over the past. How happy for themselves and for the church if this course had been adopted ! On the second day of the next meeting of the Synod, which opened its sessions at St. John’s (Calk’s road,) Saturday the 12th of November, 1836, upon the reading of the minutes of the last year, Mr. Dreher expressed dissatisfaction with them. He brought forward, however, no specific motion or proposition to alter the' minutes, or otherwise to obviate the causes of his discontent. It does not appear that he even specified the grounds of his dissatisfaction. A desultory (and, as there was no motion before the house, of course unprofitable) discussion ensued, in the course of which, he desired to be exonerated from the pledge he had given at the previous meeting. The reasons for this request being demanded, he turned the attention of the Synod from one part of the minutes to another, demanding explanations. When these were given, he introduced for discussion a paper signed by several persons, the import of which is not to be gathered from the evidence before the Court. This vexatious and disorderly proceeding resulted in the following minute.

“ Whereas, this Synod judges that it has given all necessary explanations to the requests and queries of the Rev’d. G. Dre-her, and that further discussion on these matters is altogether unnecessary; and whereas, the Rev’d. Mr. Dreher manifests an apparent satisfaction with this Synod again ; and moreover, to put to an entire rest this troublesome and mournful subject; therefore,

*Resolved,*That after all the investigation of the difficulties in the case of the Rev’d. G. Dreher, which has agitated this Synod for two successive meetings, and has been brought forward again at the present meeting, the Synod) *109believing that it has given every necessary explanation on that subject, rejects the further consideration of this business, either at this or any succeeding meeting.”

Shortly after the adjournment of the Synod, Mr. Dreher revived the charges against Mr. Moser' which had been heard and decided at the session of 1834, and wrote to the President, insisting that an extra meeting should be called to try Mr. Moser upon them, in the face of the former decision; in the face of his own professions of satisfaction with that decision, made at the time; in the face of the mutual forgiveness which be and Mr. Moser had extended to each other, at the termination of that trial, in the presence of the whole ministerium; and in direct violation of his own most solemn pledge, given at the meeting of 1835. The request was, of course, refused.

With this refusal Mr. Dreher was much displeased. In April and May following, after he had paid a visit to North Carolina, a minister of the Synod commonly called the Henkelite Synod, which had been generally repudiated as an irregular and schismatical body, throughout the Lutheran Churches and Synods of the United States, paid a visit to the section in which Mr. Dreher’s churches lay, and, with his permission, preached in his pulpits. He had himself assisted in the expulsion of these sectaries from the North Carolina Synod ; and was well aware how dangerous and disagreeable their ministrations were considered by his brethren and by many in his own congregations. This conduct occasioned, as was to be expected, deep anxiety in the members of the Synod of South Carolina.. Under the 6th section of the 5th chapter of the constitution of the Synod, according to their interpretation of it, a meeting was held, and resulted in the following firm but affectionate letter to Mr. Dreher, under date of the 11th of May, 1837.

“Rev’d. Dreher:—

As a committee appointed by consent, at a meeting of clergy, on the day of the above date, to take into consideration the late movements in some of our churches, in the introduction of Mr. Miller, of North Carolina, a member of the Henkelite Synod, we now come forward in the spirit *110of candor, to seek some information from you on tlie subject. We base the right of thus calling on you for satisfaction, on these grounds:

1. Because you have signed the constitution of our Synod, which is to govern us, so long as we are members of the body.

2. Because you pledged yourself to be at peace with us, in attending to the concerns of the churches'.

3. Because you introduced this Henkelite preacher among the churches, knowing that he was of that order ; an order created in opposition to the rest of the Southern Synods, and now disturbing the peace of our beloved church.

4. Because there are three ordained ministers of our body, who have heard Miller, and can testify that he held forth views which are in direct opposition to some of the fundamental doctrines which we hold as a body.

You will now understand, that we have reason to hold you responsible for the doctrines which Mr. Miller advanced in our churches ; and have a right to believe that you sanction and further his views, until you deny them, or give us satisfaction that you dó not. This committee believes that you will be ready to give us an answer on this subject, if you wish to be at a friendly understanding with us, and to continue a peaceful member of our Synod. We conclude, therefore, that in a week from this you will furnish us with your reply. We will not be satisfied with any thing less than a positive answer, yea or nay. We are ready to say, positively and unequivocally, that if you treat our friendly request with contempt, and give us no satisfactory reply, we will then inform the President of Synod of your course; and, as there are three ordained ministers ready to testify to the unsoundness of Miller’s doctrine, as we believe; and as the only fair presumption will be, that you hold the same views, you are to rest assured, that the way is fairly and constitutionally open for the President of Synod to proceed against you, according to said constitution, and dissolve your connexion with us, at least till next meeting of Synod. But before' we close our communication, permit us, who would still be your friends and brethren, (but only on correct princi-*111pies,) to exhort you seriously to reflect what course you intend to pursue. Think, with us, of the church, of death, and of our accountability at the bar of God. We would say, further, by way of concession, if you would prefer to meet us in person to explain yourself, and to put to rest our doubts on the subject, to giving an answer in writing, mention to us the time and place, within two weeks from this date, and we will cheerfully meet you. We will hope for the best; and, in the meantime, pray our Father and Saviour to direct us. We are candid and sincere, and, therefore, expect the same in your reply.

We remain yours, (fee.

M. Rauch,

Geo. Haltiwanger,

J. C. Hope.”

Mr. Dreher sent the following reply, dated the 16th of' the same month, to Mr. Rauch, as chairman of the committee.

*Mr. Chairman.*— Your communication of the 11th instant, was handed to me by Mr. Joseph Wingard; to which I did not, at first, intend replying. But upon reflection, as it appears that matters are now drawing to a close, I have thought proper to give you, in answer, the following, which I trust will close the whole matter.

As it appears from the minutes of 1834, that I had to undergo an examination, I now insist upon Mr. Moser undergoing the same course in a shorttime. If not, you all will know, before the meeting of Synod, the reason of the Rev’d. Mr. Miller’s preaching in my churches. You will admit, Mr. Chairman, that it is nothing more than reasonable and right, that as I had to undergo an examination, that Mr. Moser be examined also. Unless this takes place in a short time, I can-assure you, sir, that I will never attend another meeting of your Synod. As you have mentioned the time for the meeting, I accordingly agree to meet you and Mr. Moser, and the committee, at Lexington Court House, on Thursday, the 25th of May, at 10 o’clock.

I remain yours,

G. Dreher.

Mr. Dreher must have written this letter under very *112strange misconceptions. He seems to have labored under an impression, that great injustice was done him, in his having been urged to undergo an examination, as to his doctrinal sentiments, in 1834. Certainly, there may have been irregularity in the proceedings; but there is not a vestige of unkindness or oppression, but on the contrary, there are strong evidences of a most mild and forbearing spirit in what was done. He was charged with unsound opinions. No doubt he had a right to stand upon the defensive, and require proof that he had ever advanced the sentiments attributed to him-. The Synod had no right, and there is no evidence that they claimed any, to compel him to discharge himself by an examination. But as it was very natural to suppose, that when a charge was formally made, an impression unfavorable to his usefulness and spiritual influence, might exist in some quarters of the church, it was a kind suggestion, that by submitting to an examination, such misconceptions might be dispelled. He seems to have taken the same view, and did submit, and produced the testimonials of the Synod, of their unanimous conviction, that he was sound in the faith. There is no mistaking the spirit of the whole transaction. There was an evident eagerness, on the part of his brethren, to silence all complaint against Mr. Dreher’s orthodoxy, and to send him forth to the churches and to the world, with the sanction of their approving voice. If this course wounded Mr. Dreher’s sensibilities, then was his time to have stood upon his strict right. He might have refused to be examined, and challenged the proof. But having yielded to the examination, and having expressed himself satisfied with the result, and with Mr. Moser, his accuser, he was bound, by a regard to his clerical character for consistency, and even by common candor and honor, to have remained, ever after, silent upon the subject. In yielding to the examination, instead of keeping up a fretful controversy upon the charge against him, it cannot be a question, in any candid mind, that he best consulted the interest of the churches under his charge; and he was greatly mistaken when hé suffered himself to fall into a persuasion that he had done wrong, or that he had been made the victim of injustice. He seems to have been impressed, with a notion, that equal *113justice was not administered to himself and Mr. Moser; and that as he was examined, Mr. Moser should have been examined also. But the cases were not parallel. The charge against himself, was of false opinions. That against Mr. Moser, was for misconduct. The one might be cleared up by a confession of his faith, on the part of the accused. To the other, such a procedure was manifestly inapplicable. There was, also, this further consideration ; — both cases had been disposed of. There was no attempt to revive the old charge against Mr. Dreher, and to subject him to be tried again upon it, either by proof or by re-examination. Why, then, should he wish Mr. Moser to be subjected to an examination, which, if it related to the old charge, was doubly objectionable, not only because such could not be the appropriate evidence applicable to such a charge, but because it required that to be tried again, which had been once heard and decided'? Even now, wThen he called for Mr. Moser’s examination, he made no allegation of unsound doctrines against him; so that in no view that can be taken, could the Synod, or the committee, if it had yielded to his demand, have exonerated itself from oppression towards Mr. Moser, nor from the charge of having subjected him to a process, which, in such a case as his, had never been applied to Mr. Dreher. But the most surprising misconception of Mr. Dreher, remains to be noticed. He is called to explain why he introduced Mr. Miller into his pulpits; the implication is stated, that unexplained, this conduct would be regarded as evidence of his sympathy in Mr. Miller’s doctrines. In answer, he demanded the examination, not of his own opinions, but of Mr. Moser’s, as if his own accordance with Mr. Miller, would be proved or disproved by Mr. Moser’s orthodoxy or heterodoxy.

At the time appointed, the committee met Mr. Dreher. The meeting proved unsatisfactory, and his conduct was reported to the President. That officer, under the 7th sec. chap. 5. of the synodical constitution, appointed a committee of neighboring clergymen, with the Rev’d. Dr. Hazelius as chairman, who met Mr. Dreher again, on the 26th of July, 1837. Certain written questions, transmitted by the President, were propounded to Mr. Dreher, for *114the purpose of eliciting his reasons for his conduct; and he was informed, that if he assigned no satisfactory reasons, the President, by virtue of the constitutional authority vested in him, would be compelled to suspend him, until the succeeding meeting of the Synod. Mr. Dreher refused to answer the questions, unless it were first proved that Mr. Miller advanced erroneous doctrines in his churches. After calling for the reading of sundry papers, which were read accordingly, and calling for others, which not being present, were ordered to be furnished him, he renewed his old complaint, relative to his examination in 1834. The committee in vain endeavored to explain away his dissatisfaction ; and at length, the following instrument was drawn up, agreed to and signed. 1

“ The chairman of the committee, after stating that for several years repeated attempts had been made by Synod to settle the differences existing between it and the Rev. Mr. Dreher, but all proving ineffectual, called upon the Rev. Mr. Dreher to agree to a friendly separation, on the ground that we cannot agree in our views of doctrine and church affairs ; to which the said gentleman consented.

Lexington C. H., July 26, 1837.

Ernest L. Hazelius,

*Chairman of said Committee.*

Godfrey Dreher.”

Here we must drop Mr. Dreher, for a time, and return to St. Peter’s Church. There was much discontent among a portion of this congregation, with Mr. Dreher, on account of his supposed leaning to the views of the Ilenkelites ; but a large majority deemed these suspicions groundless. Still, there were some among those most attached to him, who declared that they could not go with him, if he broke with the Synod and went over to the Henkelites. There was a large party who preferred to be independent of all Synodical bodies, but still anxiously clung to the Lutheran name.

The Rev’d Herman Aull testifies, that on his way to the meeting of Mr. Dreher with the committee, in July, 1837, he conversed with Mr. Seas, one of the elders of St. Peter’s, who gave it as his opinion, that if Mr. Dreher left *115the Synod and went with the Henkelites, the church of St. Peter’s would not go with him; and declared, for his own part, that he would not. On his return from that meeting, he fell in with the Rev’d. Mr. Hope, who had also attended it. Witness requested Mr. Hope to accompany him to Mr. Seas’s; and they went together. At Mr, Seas’s, a conversation took place about Mr. Dreher’s withdrawal from the Synod; and Mr. Seas, retaining the sentiments formerly expressed by him, observed that, nevertheless, if the congregation turned off Mr. Dreher, he did not know where they could get a minister. Upon which, witness suggested, that perhaps Mr. Hope, who was a member of the Synod, might have a spare Sunday occasionally, on which he could preach to them. Mr. Aull advised Mr. Seas to ascertain how many of the congregation would adhere to the Synod. Mr. Hope testifies, that on his way home from the July meeting, at which Mr. Dreher agreed to separate from the Synod, he called, with Mr. Aull, upon Mr. Seas. The fact was mentioned that Mr. Dreher had withdrawn. In this conversation, an opinion was advanced, that the church building might be legally claimed by such portion of the congregation as should continue to adhere to the Synod ; but no purpose of making such claim, or of attempting an exclusive possession, was expressed. Mr. Aull suggested, that witness might serve that portion who adhered, by preaching on Sundays when Mr. Dreher was not to preach. It should be noticed here, that Mr. Dreher having other churches besides St. Peter’s, preached statedly in that church but one Sunday in each month. It was concluded that an application should be made to the elders, with a view to a friendly arrangement, by which the Sy-nodical party, as they were termed, should be allowed to introduce a minister on days which would not interfere with Mr. Dreher’s appointments. It appears that this witness, the next day, saw Mr. Mayer, one of the elders, and informed him of the conclusion to which he, together with Mr. Aull and Mr. Seas, had come. After some preparatory arrangements, this gentleman made an appointment to preach some time in August.

He preached one or two Sundays in the church. A misunderstanding sprung up, and being debarred the use of *116the building, he preached in the open air near the church. Then the church was opened again to his use, and that of the adherents of the Synod. During all this time, Mr. Dre-her and his friends uninterruptedly met for worship on his stated days. The keys of the church were in the hands of that party. One of the elders, (Mr. Harmon,) adhered to the Synod. Mr. Seas and the other elders began to apprehend an invasion of their rights; and when, at length, the Synodical party, embracing Mr. Harmon, Mr. Bates, Mr. Hiller and others, by whose invitation Mr. Hope performed devine service at St. Peter’s, entered into an election for elders, and organized themselves, the doors were peremptorily closed on them, the keys refused, and they were ejected from the use of the church, unless on Mr. Dreher’s days, and under his ministrations. The bill charges in general terms, that the Synodical party, who are the plaintiffs in this cause, were excluded from the use of the church. The defendants, in their answer, give a full and very circumstantial statement of the different steps which led to this event; and as I have been, already, very prolix in the statemen t of this case, I must content myself with requesting that the brief of the pleadings be taken as a preliminary to this decree. It appears by the evidence, that the defendants did not actually exclude the plaintiffs from the use of the house at the outset, though they seem to have suspected, what it appears was not intended, that the plaintiffs might set up an exclusive claim. These suspicions increased, and the use of the house was refused. The doors were opened again; when the election of the new elders, aggravated, no doubt, by false rumors and the whisperings of busy-bodies, led the majority to the illiberal and unchristian procedure, of withholding from the plaintiffs the loan of the keys.- This proceeding, I have no doubt, they themselves now regret; and it has led to this protracted and troublesome litigation. The first closing of the doors was in September, and the last, some time after December, 1837, and before the filing of this bill. In the mean time, and during the first closing of the doors, the Synod met. It assembled in Charleston the 11th of November, 1837. A commissioner appeared to lay before that body the complaints of the Synodical body of St. Peter’s *117Church. They were referred to a special committee. On the 15th of the month, the committee reported. The report is spread upon the minutes of the Synod, and remarkable for the clearness of its statements, the moderation of its tone, and the firmness, tempered by prudence, of its recommendations. After having “ consulted, with great care, the records of the Synod, perused the correspondence between the presiding officer and Mr. Breher, and examined such witnesses as would enable them to form a correct judgment of the causes of the existing difficulties,” in the congregation of St. Peter’s, the committee reported a compendious narrative of the dealings with Mr. Dreher, and recommended that he be decleared, “ no longer a minister of our church, that he is beyond the controul of our Synod, and that we are not responsible for his faith or conduct.” With respect to the dissensions in the church, after stating the case of the complainants, and that they, the complainants, would be satisfied, “ifpermitted to occupy the church, and be ministered to by pastors of their choice, during such sabbaths when the church is not occupied by the other party, they forming two separate congregations, but not interfering with each other, as they will worship on different Sabbaths;” and after noticing the closing of the doors against them, the committee states that it has taken legal counsel, and been advised that '“ if any portion of a corporation secede, and are even erected into a new corporation, the corporate property will not be transferred or distributed in consequence of the separation, but will remain with the old corporation.” *“*Hence, it appears,” says the committee, “that the property of these churches is forever vested in those who adhere to the faith of the Lutheran Church, as understood and received in this country ; and your petitioners, who have never departed from our Lutheran faith, as understood and acknowledged by the formulas of the church in this country, have an undoubted right to the churches to which they are attached, and the property invested in them.” “As, however,” the committee proceeds, *“*we profess to be the followers of a religion of peace, a religion which teaches us to bear and forbear, and to exercise a spirit of meekness and long suffering, your committee respectfully recommend, that before a *118reference be had to the equitable laws of our land, the petitioners apply for the use of the church, on such Sabbaths as it may not be occupied by the other party. That in case the doors be closed against them, they make no illegal resistance, but endeavor to preserve a Christian temper, and endure their persecutions as He bore them whom we profess to serve. Should they, however, be denied this privilege, your committee recommend that they keep a record of their proceedings, and *lay the whole transactions*before the Synod, *for further action at its next*meeting.”

The report was unanimously agreed to. *No*doubt the application recommended to be made to the adverse party, for the occasional use of the church, was made; as we have some traces, in the answer, of such an application, shortly after the rising of the Synod. It led to the temporary opening of the church; but it was closed again as soon as the Synodical party proceeded to organize, as they must necessarily have done, as well for the purpose of discipline among themselves, as for the administration of the sacraments of the church, unless they would consent to receive them from Mr. Dreher ; which they could not consistently do. The state of affairs was deplorable, a crisis in the condition of this once united congregation was fast approaching. Whether, upon the doors being finally closed against them, the Synodical party returned to the Synod, as directed, for its decision or advice, we have no evidence. But preparations seem to have been made by the other party for a coming contest, and a deed was executed, bearing date the 6th of February, 1839, from John Shealy, the surviving grantee of the church land, to “ the Lutheran congregation of St. Peter, and their successors,” by way of vesting the title in them; which deed was delivered to the defendants.

The present suit was instituted the 28th of April following, by Jacob Harmon, an elder, and others, the adherents to the Synod, against Mr. Dreher, and against Jacob Wheeler, Jacob Mayer, and John Seas, elders, and others of the other party. The pleadings disclose the case at issue. The bearing of the case, is to elicit a judgement, which of the parties is the true church of St. Peter’s, as incorporated. Each party claims an exclusive right. I have *119stated, I believe, every fact and circumstance put in evidence, which, in the conception of either party, has the remotest bearing on the case. I have stated far more than, in my own judgment, has a clear application, because I wish that the facts should be so set out as to open my decision in the fullest manner to examination and correction.

Mr. Dreher has put ini a special plea in advance of his answer, in which he contends that he is not a member of the congregation, and therefore not implicated in the trial of their rights. But this plea cannot be sustained. It would be exceedingly strange, if the Pastor of a congregation was no member of it. Besides, if Mr. Dreher was a perfect stranger, but, as a confederate with the other defendants, stood as an impediment in the way of the plaintiffs, (supposing them to be the congregation,) he would be as liable to a decree as they.

The case must stand on the bill, answers, and the evidence; and these seem to raise the-following questions: What is the effect of the separation of Mr. Dreher from the Synod, considered in reference to Mr. Dreher himself? What is the effect of that measure, and of the proceedings of the Synod, upon the corporation of St. Peter’s ?

Under each of these general questions, there are many subordinate topics to-be considered. In stating this case, I have, in one or two instances, thrown out my impressions as to the correctness of the proceedings of the different parties. This was done solely with the hope that my suggestions, as to a reconciliation, might be embraced; in which case it might, I trusted, be of use to point out the grounds where, as I conceived, concessions should be made. But in deciding the case, I have no right to look into the morality of the proceedings. My province is to examine the facts, and apply the law to them, without regard to my own personal opinion of the justice of the case.

Then, in what condition did Mr. Dreher’s separation from the Synod place him? The grounds upon which he was called to account by the President, in July, 1837, were for a contumacious and premeditated violation of his pledge, to act in harmony with his brethren of the Synod, in introducing into his pulpits Ministers whose doctrines *120he had himself condemned, and which he knew to be abhorrent to his brethren, and to be repudiated by the general consent of the Synods and churches, and thus giving-ground to suspect that he himself favored these doctrines. While these charges were under examination, he agreed with the committee to a friendly separation from the Synod. If this fact had been reported to the Synod, without more, and the report had been accepted and adopted, I do not perceive how the separation could have worked any ministerial disqualification upon Mr. Dreher. Certainly such a transaction could not have amounted to a conviction of either misconduct or heterodoxy. But by the constitution of the Synod, this agreement to separate, was an inchoate act. The committee, moreover, had, as a committee for the special purpose committed to it, no power to agree, on behalf of the Synod, to the separation. The proceeding was to be reported to the Synod, for its examination and approval. It came before that body at the succeeding meeting, with this aggravation of *the charge*already existing, that Mr. Dreher, notwithstanding his separation from the Synod, had returned into one of the churches, which they regarded as under their supervision, and occasioned dissensions in the congregation. The Synod took the matter into consideration, and expelled him from their body. He stands, therefore, convicted of the offences alleged against him, by the sentence of the spiritual body, of which he was a voluntary member, and whose proceedings he had bound himself to abide. It belongs not to the civil power to enter into or review the proceedings of a Spiritual Court. The structure of our government has, for the preservation of Civil Liberty, rescued the Temporal Institutions from religious interference. On the other hand, it has secured Religious liberty from the invasion of the Civil Authority. The judgements, therefore, oí religious associations, bearing upon their own members, are not examinable here; and I am not to inquire whether the doctrines attributed to Mr. Dreher, were held by him, or whether, if held, they were anti-Lutheran; or whether his conduct was, or was not, in accordance with the duty he owed to the Synod, or to his denominations. I have stated the facts, and I have stated the judgment rendered *121on the facts, and that judgment must be conclusive here. The effect of this judgment is not weakened by the general expressions in the constitution, and in the annual journals of the Synod, that the power of the body is merely advisory. In fact, in this country, no ecclesiastical body has any power to enforce its decisions by temporal sanctions. Such decisions are in this sense advisory — that they are addressed to the conscience of those who have voluntarily subjected themselves to their spiritual sway; and, except where civil rights are dependent upon them, can have no influence beyond the tribunal from which they emanate. Where a civil right depends upon an ecclesiastical matter, it is the civil court, and not the ecclesiastical, which is to decide. The- civil tribunal tries the civil right, and no more , taking the ecclesiastical decisions, out of which the right arises, as it finds them. Just as ecclesiastical forums would be bound to regard the decisions of a temporal court, where a religious controversy springs out of it, and is to be decided by them. How idle the fears, therefore, of those who apprehended tyranny and oppression from ecclesiastical associations ! They have, and can have, no power whatever to enforce their decisions; which are moreover of no effect except upon those who enter into them. Their power is only to cut off and disown intruders who come among them, but will not be content to obey them. But that the Synod here was armed with judicial authority for trying and determining cases against delinquent ministers and churches, notwithstanding the general expressions I have noticed, appears from the constitution itself, which is the rule for all who have acceded to it; and which expressly provides for such a procedure. Neither can this court look into the regularity of the process by which the Synod proceeded to its judgment. Every competent tribunal must of necessity regulate its own formulas. If the Synod proceeded to its final judgment in the absence of Mr. Dreher, it must be considered that by the constitution and the very nature of the case, the matter adjudicated was adjourned from the committee to the next annual session. He was bound to attend, and if he did not, he could not suppose that his voluntary absence was to arrest the cause.

*122Then, we are to consider what effect the exclusion of Mr. Dreher was to produce upon the congregation of St. P.eter’s. It has been argued, that this congregation was, at the time of that sentence, unconnected with the Synod, and was, therefore, not effected by it. But I have no doubt the congregation was in full connexion, and still continues in full .connexion, with the Synod. I think it is impossible for any .candid mind to survey the evidence and come to any other conclusion. The charter granted to the Church, incorporated it as a Lutheran Church. If, according to the usages of the Lutheran Church, the congregations were to stand free from all Synodical connexion, then this congregation might at one time have set up some claim to independency. But the testimony leaves no doubt that there is no such thing known to Lutherans as indepen-dency. Their ministers are not, and never have been, con-gregationally appointed or ordained. They are received by the Churches under an Ordination at the hands of associated Ministers. The evidence, corroborated by the history of the denomination, is that church government among the Lutherans relates, — 1st. To individual Churches. 2d. To general bodies of associated Churches. 1. With respect to the first, there is one practice of general prevalence in all quarters of the world; these churches have councils, consisting of officers of various names, chosen by the congregation, who, in connexion with their Pastor, form the government of the particular congregations. Lutheran congregations in no part of the world, (this is in evidence) are ever entirely independent of some controlling body. There are a Jew, very few, anomalous exceptions in this country. But even here, the minister of such church is acknowledged by some Synod, as in good standing. Congregations who, in connexion with their Minister, are not acknowledged by some Synod, are not regarded, (whatever they may call themselves,) either by Lutherans or others well informed in sectarian distinctions, as Lutherans, or as having any status in that denomination. 2. Church government, in regard to general bodies, has three distinctions, according to general usage among Lutherans. It is either, 1st. Episcopal: as in Sweden, Norway, Denmark. 2d. Territorial: which prevails wherever the Civil Government *123is Protestant, and interferes with Ecclesiastical affairs. In this- system, there are two Presidents in the Consisto-rium or Synod ; the first is appointed by the Civil power, from the legal profession, with rank equal to a Bishop: the second is a Clergyman. 3. The third system is the Collegiate, and prevails in countries not under Protestant rule, and where the Civil Government does not interfere with Ecclesiastical matters. It prevails here in the United States. Under this system, ministers and lay delegates meet to transact the business of the churches. A connexion of one or the other kind is, according to the testimony, referring also to standard authorities and usages of the denomination, an essential feature in Lutheranism. The characteristic of the denomination does not consist alone in the adoption of the Augustine Confession, (for that is the confession of other denominations, as for instance, the Moravians,) but also in the practice, usages and discipline of the church. The history of the denomination in the United States has been given in confirmation of this view. In the early settlements, when the ministers and churches were few and dispersed, and, of course, where correspondence was inconvenient, churches necessarily waited until opportunities for associations sprung up. But Synods were uniformly formed, and congregations came into them as soon as circumstances would allow. It is represented by the evidence, that a Lutheran Church *ex vi nominis,*implies one which does not claim independency, but under convenient circumstances, acknowledges Synodical authority; just as when we speak of an Episcopal Church, we are understood to refer to one acknowledging a Diocesan Bishop; or when we speak of a Roman Catholic Church, we intend one under Papal rule. If this be the import of the charter incorporating St. Peter’s as a Lutheran Church, it would be a fraud upon those who have contributed to it, and those who have entered it as such, for any majority in that congregation, however numerous, to pervert the charter and convert it into a Congregational Church.

It has been argued that the majority of the congregation should govern ; and that it would be a violation of liberty to deny a controlling influence to their determinations. If *124this were a Congregational Church, this might be true. But why'? Because, if the congregation had been so incorporated, it would be according to the very terms of the association that the majority should govern. But if the incorporation of the church as a Lutheran Church, imports what has been stated in evidence, it would be a breach of all liberty as well as of faith, that the majority should impose a new contract upon the minority. Suppose a majority should next year spring up in favor of the Homan Catholic or Mohamedan Religion, and introduce auricular confession and indulgences, or the Koran, into this congregation, would not these defendants, however small a minority they might form, see and feel that their liberties were trampled on, by so gross a violation of the contract of association contained in their charter'? The truth is, that liberty is violated wherever contracts are infringed ; as much where the infringement consists in the provision of a charter, as where a majority of mercantile co-partners choose to make their will, and not their articles, the rule of their conduct; as much where the charter is to a Religious body, as where it is to a Civil corporation.

The character of this corporation is, therefore, to be determined by the terms of the charter. The body created is a Lutheran Church. We have seen by the evidence what that means.

There is reason to suppose that the congregation, so far from being intended to be an independent body, was incorporated with a special intent to be connected With a Sy-nodical body.

Mr. Wallern, their first minister, was a member of the Ecclesiastical Union, formed in 1788. That body, which did not expire until. about the time St. Peter’s and St. John’s were incorporated, was to govern the churches under its charge in general matters, but the Churches themselves were to retain their denominational character, and each was to be governed in affairs of a more domestic nature, by by-laws of its own formation.

The probability is* that these two churches were incorporated as Lutheran Churches, with a view to a connexion with this general directory. This may serve to explain *125what is meant by the phrase “ according to the Rules, Orders and Constitution *to he*formed,” which occurs in the charter; meaning the system of congregational rules allowed to the Churches under the care of the general consistory. When this Synodical body fell through, I suppose they lapsed, (St. Peter’s among the rest,) into their respective denominational characters. Those that were Lutheran continued Lutheran, and those which were Calvinistic remained Calvinistic. But neither party seems to have had opportunities for forming Synods, for want of a sufficient number of ministers. Finding themselves, at their, incorporation, in this segragated condition, it was very natural for the bulk of the congregation of St. Peter’s, who knew nothing of the previous Synod, (which was not in fact a Lutheran Synod, but a mere convention of two distinct denominations,) to suppose that they were an independent church; especially when this state of things continued through the long, and to the Church, gloomy period of thirty years, from 1794, to 1824, when the Synod of South Carolina was formed. It was very natural that many among thém should still retain that opinion from the mere constancy of mind, and aversion to discard sentiments become habitual, with which a wise Providence has endowed men, for benificent purposes. But the facts of the case shew incontestibly, that St. Peter’s Church fell into the usages of the denomination, and acceded to the Synod formed in 1824.

From the publication of the minutes of that body among them, from the annual meetings which took place all around them, some of which most of them had an opportunity of personally attending, from the appointment of delegates with their consent, in the face of the Church, they must have known of the existence of the body and of its proceedings. They sent contributions punctually. They petitioned the body on the subject of their pastoral appointments; and they sent delegates to take part in the deliberations and votes of the Synod. It would be uncharitable to suppose that they sent their deputies to interfere with and control the affairs of other churches; which would have been an offence of no ordinary magnitude in those so fondly attached to their own independence and so jealous *126of foreign control. The evidence is too conclusive to be doubted, that they did accede, and intentionally acceded, to the Synod.

And as to the objections now made by them to the constitution and forms of procedure of that body, it is too late to raise them. They had full knowledge, through their representatives, of the regulations proposed. Full time was allowed for deliberation.- They had full opportunities to be heard, and to cast their votes against any thing objectionable in them; and they must be bound by the result. But surely there must be great misapprehension in their minds-respecting the powers of the Synod under its organization ; and I feel very sure, that upon a due consideration of their objections, they will become satisfied that their apprehensions are entirely unfounded.

So far, I see no difficulty in the way of the plaintiffs. But here I encounter impediments of a very serious nature.

The legal position is, I think, well established, that before corporators can forfeit their membership, they must be proved to have seceded from the corporation of which they are members. If a portion secede, arid the rest, however small their number, adhere, the adherents, by their fidelity, secure their corporate existence, and are entitled to all the privileges and property of the corporation.

I suppose it would be correct, too, to say, that if a portion of corporators are guilty of such misconduct towards a body on which the corporation depends, as tcnds to forfeit the connexion, while another portion still acknowledges the connexion, and fulfils its duties, the faithful party will be entitled to stand for the corporation, and claim such remedies as may be necessary to avert the forfeiture.

In this case, if the defendants have seceded from the Synod, the plaintiffs, who clearly have not seceded, would perpetuate the Church in their own persons, to the exclusion of those who have declined from the duties of the corporation. This is the case which the plaintiffs have undertaken to make out. Have they succeeded *1*By the constitution of the Syiiod, when a minister is excluded, it is the duty of the Synod to give official notice of the fact to any congregation who retains him as a Pastor, and forbid *127them from employing him ; and if the congregation disobeys the injunction, then the Synod shall cut it off. I suppose, too, they may exercise this right in part; that is, that they may exscind such portion of the congregation as disobeys their injunction, acknowledging connexion with the rest. Now, when Mr. Dreher agreed to separate from the Synod in July, 1837, let it be .granted that he stood upon the ground of a minister convicted of offen.ces, yet no 1 notice emanated from the Synod, such as the constitution ■ requires, forbidding Hie people of S,i. Peter’s from further' attendance upon his ministrations. Mr. Hope went to the church, and the majority of the Church refused to receive *him**But he carried no authority from the Synod; ,and it was the undoubted right of.the congregation, unless directed otherwise by the Synod, to determine whom, among the regular ministers, they would receive for their pastor. In November, the Synod convicted and exscinded Mr, Dreher, but still the notice required does not appear to hav,e .been given. It directed the adhering party how to proceed. In these directions, so far from forbidding Mr. Dreher from continuing to officiate in the church, the Synod,.(clearly from the most praiseworthy motives of forbearance,) recommend an arrangement by which he was to be retained by the defendants. In the case which has occurred, o,f the plaintiffs being refused the use of the church, the injunction of the Synod was, that they should report the circumstances to that body, in order that it might, upon a view of them, determine what was proper to be done. This reservation of authority to give further directions, was very prudent, because, under it, the .Synod might have proceeded to give .the congregation the notice required by the constitution, and if its orders were disobeyed, it might have gone on to exscind the delinquent parties, by name, and to have perfected the organization of the adhering party, and declared them .to be the .true Church. But this has not been done. Upon the closing of the doors, this suit was instituted; while, as yet, no command of the Synod had' been disobeyed by the congregation.

I cannot declare the defendants to have seceded from the Synod; because it does not appear that if the Synod had given them the notice required, or had .accompanied or *128followed that notice with specific mandates, they would not have obeyed, as was their duty.

It is decreed that the Bill be dismissed, but without costs.

From this decree the complainants appealed, and moved to reform the same, upon the following grounds.

1. Because the defendants do not acknowledge the authority of the Synod, and the complainants, who acknowledge that authority, are entitled to perpetuate the Church in their own persons, to the exclusion of those who have rejected that authority.

2. Because the complainants are Lutherans, whereas the defendants are not Lutherans, either in form or substance; or if they ever were Lutherans, have forfeited their status.

3. Because, on the 26th July, 1837, the Rev’d'. Mr. Dreher signed a paper, declaring that he did not agree with the Synod in their views of doctrine and church affairs.

4. Because, at the meeting succeeding the 26th July, 1837, the Synod expelled the Rev’d. Mr. Dreher.

6.Because, after this expulsion, the defendants received Mr. Dreher into the church, and attended his stated ministrations.

6. Because congregations, who in connection with their Minister, are not acknowledged by some Synod, are not regarded as Lutherans, or as having any status in that denomination.

7. Because the defendants, by their answer, admit that, warned by Mr. Wallern, they have *always*rejected government by Synods; and thus they disdain the authority of the Synod, and are not, therefore, a Lutheran Church in the sense contemplated by the Act of Incorporation.

8. Because it is satisfactorily established by the proof, that Mr. Dreher was formerly a member of the Synod, and acknowledged its authority; that the other defendants were represented in the Synod, by the said Godfrey Dreher, and by Lay Delegates, with their consent, and acknowledged their connection with the Synod, and the athority thereof; and it is equally well established by .the proof, that the said Godfrey Dreher and the defendants, *129have seceded, and are no longer members of the Lutheran Church.

9. Because it was clearly proved that defendants pro* hibited complainants from attending public worship in said building, conducted by a Minister of the Lutheran Church,

10. Because it was clearly proved, that defendants re* fused to allow complainants to attend public worship in said building, unless when conducted by, said Godfrey Dreher, or some other Minister not belonging to the Lu* theran Church,

James J. Caldwell, *for*defendants,

*and against the mo-tion to reform the decree.*The complainants claim one hun* dred and twelve acres of land and the building thereon, belong* ing to tfthe Lutheran Congregation of St, Peter,” as the regular members of that congregation, and of the Lutheran Church, and pray for peaceable possession, and that defendants may, be pro* hibited and restrained from the privilege and use thereof,

This congregation was incorporated in 1794, g Stat, of S, C., 187, and the evidence established that some of the original mem* hers of *the*corporation belonged to the *Presbyterian Church t*there was then no Synod in South Carolina.

The charter prescribed the qualifications of the corporators ; but a Church may be composed of white men, femes covert, infants, free persons of color and slaves ; but becoming commu* nicants, would not make them, ipso facto, members of the corpo* ration. In this bi-formed organization, it is important to distin* guish between *ecclesiastical*and *corporate*rights ; and it is not a paradox to infer that a corporator might be disfranchised by law and yet remain in the *Church,*or that *it*might excommuni* cate a member who might still be entitled to exercise the right of a corporator, as these privileges are not inseparable, or identical.

The congregation was an integral corporation when charter* ed ; a synod was not an indispensable ingredient in its creation, and was neither contemplated by its charter, or necessary to its practical operation.

Franchises granted to private corporations become vested rights, of which they cannot be divested, except by the consent of the corporation, or by a forfeiture declared by the proper tri* bunal. *Dartmouth College*vs. *Woodward,*4 Wheat. Rep. 518.. *130
      *Smith et al.*vs. *Smith et al.*3 Equity Rep. 576. In this charter there is no provision for alterations, nor has any corporate act of the congregation authorized any alteration. We have no statute similar to the Act of 1791 of Pennsylvania, vesting literary, charitable, and religious associations with the power of self incorporation, and of adopting amendments to their charters. *St. Mary’s Church,*7 Sergt. and Rawle Rep. 517.

The Act of 1825 incorporating “The Lutheran Synod of South Carolina, Georgia, and the adjoining States,” which by its constitution adopted the name of “the Evangelical Lutheran Synod and Ministerium of South Carolina and adjacent States,” neither engrafts it on the Lutheran congregation of St. Peter, nor transfers the corporate rights of the latter, to the former, and no such construction can be implied from the charter.

If every member of this corporation were individually to agree to transfer the control of the corporate property to the Synod or to any other body, it would not be the assent of the corporation — there must be *a corporate act.*Angel and Ames on Corp. 149, 168.

The land was granted to certain persons, in trust, for the use of the incorporated Church of St. Peter, and to their successors, trustees of the said church ; such property could not be legally conveyed without a deed, and one declaring any other use would be void, as there was a trust to be executed as well as a use to be enjoyed.

There has certainly been no merger of the rights of the Lutheran congregation of St. Peter in the Synod; nor can they, as corporate bodies, exercise concurrent control over the same property, as partners. Ib. 57. *Sharon Canal Company*vs. *Fulton Bank,*7 Wend. R. 412.

The Synod has no power to try the members of this church for heresy or misconduct, much less has it any power over the corporation.

“We acknowledge but one judicatory (says the Discipline, page 75) in the church, viz: the church council, with the pastor, the jurisdiction of which body does not extend beyond the limits of the respective congregations. Our *Synod,*as well as the general Synod, are *advisory bodies,*with this reservation, that our Synod, as every other society or association, has jurisdiction, or judicial powers, over its own clergy, according to the adopted Synodical constitution.” See also Ib. 106.

*131The church council is to administer the discipline of the. church on all those whose conduct is inconsistent with their Christian profession, and who entertain fundamental errors. Ib. 83.

The mode of trying members, and the punishment pre-cribed. Ib.

There is *no appeal*to the Synod, unless both parties agree ¡to constitute it the arbitrary power. Ib. 84. Sec. 11. But a sentence remains in force until re-viewed and altered by *the church*council, through the advisory recommendations of the Synod. If a congregation refuse to bear part of the expenses and services necessary, it shall not be entitled to a representation in the Synod, but it is not liable to any other penalty. Ib. 116, 117.

The government or power of the church is purely spiritual; hence it follows that all the regulations concerning the *temporalities*of a congregation, are left to the management of each corporation, by law empowered to do so, without *any interference*of the discipline. Ib. 93.

It follows as an irresistible inference, that the Synod has no power, either ecclesiastical or corporate, to excommunicate the members of this congregation, or to divest them of their corporate rights.

But defendants are charged with having seceded from the Lutheran Church; this they deny in' their answer, and avow their belief in the *Augsburg Confession,*in reference to which the most liberal construction has been extended. Discipline, *22.*

*A*mere discussion, or even a difference, about doctrinal points, cannot constitute secession. The defendants have not adopted new articles of faith, of abandoned the ancient landmarks of Lutheranism, which they have preserved in their purity.

Defendants have not been cited to appear before any ecclesiastical tribunal, nor have they been tried, or exscinded from the congregation. Notice to, and proceedings against, the accused, are necessary before expulsion. *Commonwealth*vs. *Penn. Beneficial Institution. 2*Sergt. and B.. Hep. 141; Angel and A. 354.

Defendants have not forfeited their corporate rights. Corporate powers that have been abused or abandoned, cannot be taken away but by regular process. The forfeiture of a charter can be enforced in a court of Law only, for though a court of Chancery may hold trustees accountable for abuse of a trust, it cannot divest it of its corporate character and capacity. *yS'lee*vs. *Bloom,*5 John. Chan. R. 379; Angel and A. 665. Charitable *132institutions do not form an exception. *Atty. Gen.*vs. *The Uti-ca Ins. Comp.*2 John. Chan. Rep. 384 ; the case of *Atty. Gent.*vs. *Peatson,*3 Meriv. Rep. 352, was under the 43d Eliz. chap. 4, (relative to charitable uses) which is not of force in this State-.

There is no prayer in the bill for such a *discovery,*that can sustain the jurisdiction of this court.

The case cannot be considered as *a bill of peace)*which is resorted to in two cases ; 1, when one person claims or defends a fight against many, or where many claim or defend against one; 2, where ejectments have been repeatedly brought for the same real property, by a party out of possession, against whom a verdict is not conclusive as a bar to a subsequent suit; but in these Cases, the general right will be ascertained, if it be necessary, by an action or issue at law, and then the court will make a final decree binding upon all the parties-.

If the plaintiff does not establish his right at law, and the right he claims has not the sanction of long possession, and he has any means of trying the matter at law, a demurrer will hold. 2 Story’s Equity Juris. 175; Mitfi Eq. P. 145; Jeremy’s Eq. Juris. 344-.

The Writ Of Mandamus is the remedy to restore a member or trustee of a Corporation to his rights. *Green*vs. *The African Meth. Epis-. ¡Society-,*1 Sergt. and R. Rep. 254; Angel and A. ■568.

But the complainants cannot avail themselves of any remedy Until they are ifijured, or have been deprived of some right; the mere refusal of the defendants to permit a minister to preach in the church, or their preventing a meagre minority of the members from having an illegal election of a separate set of elders, was neither incompatible with the charter or by-laws; and no court has the right to control the majority, unless they exceed these limitations of their power.

As a grant of incorporation cannot take effect without the consent of a majority of those intended to be incorporated, the business of the corporation must, of course, proceed upon the same principle. Angel and A. 5l, 52, 53.

*“*Corporations are subject to the emphatically republican principle (supposing the charter to be silent) that the whole are bound by the acts of the majority, when these acts are conformable to the articles of the constitution.” Angel and A. 396.

*133The abandonment of this rule, where there is no directory in the government of corporations, would produce in almost every corporate body instant dissolution.

This principle has been *so*permanently settled, and has been so far extended, that “ if a religious society purchase lands, a majority of them have a right to control their use and occupation, notwithstanding any supposed error in doctrine, shown to be a departure from the belief of the majority at the time of the purchase.” *Keyset et al.*vs. *Stanisfer et al.*6 Ohio Rep. 363.

In *Rex*vs. Beesher, 3 Term Repts. 492, a statute had authorized the church wardens and overseers of the poor to make certain contracts ; all joined but *one*of the overseers, who refused to join, and made a -contract, and the money was in defendant’s hands to be paid upon it: on a motion for a mandamus to compel him to pay, he insisted that he was .not bound, inasmuch as the *statute*required the contract to be made by the church wardens and overseers, without saying, *or a majority;*and that, therefore, they should *all*concur, and that as *he*dissented, the contract was void ; but the motion was granted.

The difficulty in applying an appropriate remedy to control a majority is admitted, and the failure to produce any precedent, is not merely an admonition of the caution that should be exercised in attempting it, but a strong argument against its practicability.

One of the great objects in adopting a constitution or by-laws, by any society, is to restrain the powers of a majority, and the security of the rights of the minority consists in the wisdom of these provisions; when these are violated, the court of law furnishes an adequate remedy.

“So far as a member’s rights, duties and obligations as a cor-porator are concerned, he is bound by the acts of a majority.” *Stetson*vs. *Kempton et al.*13 Mass. R. 282,

The case of the *Baptist Church in Hartford*vs. *Wither all,*3 Paige’s Chan. Rep. 296, is not only analogous to, but almost identical with, the one under consideration “ it was held in that case, that a church judicatory cannot remove a clergyman from his situation as a minister of a congregation without the consent of a majority of the members of the congregation, or of those legally constituted trustees, if the society is incorporated; and it seems the Court of Chancery will not interfere to prevent the trustees of a religious society from employing a particular indi*134vidual as their clergyman, although his religious tenets should be at variance with those of the original founders of the society, and from whom its temporalities were derived. The legal tribunals of the State have no jurisdiction over the Church or the members thereof as such ; and the ecclesiastical judicatories are not authorized to interfere with the temporalities of a religious society.

*J.*Gregg, for complainants.

**9 Lutheran ; 6 Presbyterian.

Coop. Stat. 145, compared with 126.

8 Coop. Stat. 186.

*Per Curiam,*

The Court is satisfied with the circuit decree, which is affirmed, for the reasons therein given ; and it is ordered that the appeal be dismissed.

Harper, Ch. I concur in the result, but for different reasons.