189. Evidence, Entries, Minutes.—The record of the proceedings of a religious society is evidence as to its doings, both in its own tribunals and the courts of the State. Such record consists of entries required to be made by the laws or rules of the society, the laws of the State, and the minutes adopted by the society. Therefore, it is of the greatest importance that it be kept with great exactness, omitting nothing that is important.348 Also, the minutes of all the meetings should be correct before being duly adopted. All erasures and interlineations should be certified by the clerk and then signed by him.
190. Uniformity.—Every entry required to be kept by the laws of the State as well as the rules of the Church, should be kept as to births, marriages, and death. Every diocese should have uniform record books in all parishes and every pastor should keep blanks printed in the form of a page of the record book, to issue certificates when required.
[pg 112]191. Marriage, Death, Baptism, Birth, Church Records.—The church records duly kept in accordance with the discipline of the church, are admissible in evidence to prove marriage, death, and baptism. Where the record is incomplete, as giving the date of baptism only, it is not admissible in proof of date of birth. But if it gives the date of birth, it is prima facie proof thereof.349
192. Certified Copies.—Under statutes, certified copies of the record made by the custodian thereof are admissible in evidence in any case where the original would be admissible. Also, one who had compared a copy with the original record may testify to the same. The rule, as given, substantially prevails under statutes in the following States: Alabama, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Minnesota, Missouri, Oklahoma, Pennsylvania, Rhode Island, and Wisconsin; and also, in Ontario, Manitoba, and the Dominion of Canada.
193. Rule of Admissibility.—A certified copy of the record of a baptism taken from a church register by the parish priest, when admissible at the place where such record is [pg 113] kept, as in Ireland, is admissible to prove the same fact in the State of Missouri.350
194. Proper Record.—A book kept by a minister, which contained a regular statement in proper form of the admission of members, choice of officers, and transaction of business of the church, which was the only book kept by the parish, is the proper record of the church.351
195. Name, Record.—The author would like to emphasize the importance of correct records. Frequently we find no Christian name given in the records of birth, which practically makes the record worthless. When a child is born it is entitled to a name, immediately, which should be given and be correct. At least the first Christian name should be correct; a mistake in a middle name is not material. This is true of deeds and records of all kinds, but practically of births, deaths, and marriages.352
196. Jurisdiction, Privileges.—It is usual for every fraternity to have a tribunal of its own for the trial of members who break its laws or violate its discipline. Within their jurisdiction, the laws of the State give such tribunals great privileges and courts show them great respect. The Freemasons, the Knights of Columbus, etc., and most of the churches, have such courts.353
197. Trial, Property, Priest.—In most of the States a court will not interfere with the fair trial of a church tribunal. Neither will the court entertain a controversy concerning the title or right of possession of real or personal property excepting at the instance of some person claiming a right thereto derived from or recognized by the law of the State or of the United States.354 But when the bishop has deprived a subordinate priest of his authority to officiate as such, he may [pg 115] enjoin the priest from making use of the church property.355
198. Doubt, Legal Rights.—The foregoing rule has some doubt cast on it in Delaware and Massachusetts. The investigation of a dispute between members of a church by a committee according to church regulations, consented to by the parties, in which both take part, can have no effect on their legal rights. If the State law provides for cases of the kind, it is superior and must be submitted to. Also, an award or proceeding of a committee is not evidence for or against either party. However, any statement made, or admissions of the parties, if not of a recognized confidential nature, may be given in evidence on the trial in a court of the State.356 The judgment of a mutual ecclesiastical council legally convoked will not bind either party rejecting it.357
199. Bishop, Priest, Redress.—When a bishop removes a priest in the regular way according to the rules and discipline of his church, the priest has no redress.358 Also, when a priest has submitted his case to the church tribunal according to the discipline of his church, he must abide by its decision, [pg 116] excepting where his civil rights or property rights as a citizen are involved, when he may appeal to the laws of the land.359
200. Trial, Counsel.—The question whether a minister on trial in a church tribunal is entitled to be heard by counsel or attorneys depends upon the laws of the church, and it can not be said as a matter of law that he is entitled to counsel.360
201. Removal, Suspension, Trial.—In the United States under the laws and discipline of the Catholic Church a priest may be removed from the charge of a congregation at the pleasure of the bishop, without trial; but he can not be suspended from his priestly functions without specific accusation and trial.361
202. Charges, Fair Trial, Hearsay Evidence.—When a clergyman or officer is to be removed or a member of the congregation is to be excommunicated, it is necessary to fully state the charges against him and give him an opportunity for a fair trial according to the laws and rules of the religious society before rendering final judgment. All the allegations of the complaint should be made upon positive knowledge of the complainant [pg 117] or upon evidence that is admissible to prove the case in court. Rumor or gossip, known as mere hearsay evidence, is not sufficient to base a charge against the character of any one.362
203. Trial, Testimony, Slander.—A church judgment, where there has been a full and fair trial or when members submit to the church tribunal, and the judgment has only been rebuke, censure, suspension, or excommunication, is usually upheld by the courts; and when the testimony given on such trial is concerning immoral or scandalous conduct or crime, if those taking part act in good faith and within the scope of the authority of the church, they are protected by law and not liable to an action for damages for libel or slander.363
204. Remedies, Secular Courts.—In cases involving church doctrine and discipline only, all remedies within the church must be exhausted by a member before the secular courts will interfere, if they will interfere at all.364
[pg 118]205. Notice, Waiver.—When the laws of the church provide the tribunal and procedure, if the person proceeded against avoids the service of the notice or refuses to submit to the court, the notice of trial required to be served might thereby be considered waived and the tribunal might proceed with the trial in the absence of the accused.365
206. Appeal, Decision, Limitation.—The right to appeal from one court to another of higher jurisdiction is generally recognized.366 If after trial in the lower tribunal of the Church, an appeal is taken, the decision on the appeal is binding upon the parties and also upon the inferior tribunal.367 In the Anglican and some other churches, there is no limitation as to time when offenses against the discipline of the church may be inquired into.368
The Catholic Church has a limitation as to prescriptive rights, to-wit: “Three years in case of movable property; ten years in case of a right, or of immovable property, inter praesentes; twenty years in the same case, inter absentes.”369 Also, there are limitations in canonical cases, varying from one [pg 119] to twenty years.370 There is no statute of limitation on lawful debts.
207. Procedure, Judge, Juror, Witness.—If there are no rules of procedure prescribed by the church tribunal, the proper practice is to follow the State courts; as, for example, where the State law forbids an officer of the court who has an interest in the proceeding to sit as judge or juror, the same would apply to the church tribunal, it being the common law of the land. Also, in States where a person who is interested in a matter is not a competent witness, in the absence of a different rule in the church, the same rule would apply in the church tribunal.371
208. Catholic Discipline.—A church member has no right to sue any one in holy orders in the civil court without leave. That is, a layman or priest should obtain leave of the bishop to sue a priest. In some countries it is ground for excommunication to violate the rule. This rule is analogous to the general rule that a sovereign state can not be sued without its consent.372 In this country, where there is no ecclesiastical court recognized in law, leave is rarely asked.373
209. Decision, Ecclesiastical Matter.—The decision of the highest tribunal of the church on a purely ecclesiastical matter will not be disturbed by civil courts unless it is in open defiance and express violation of the constitution of such body.374
210. Right of Property, Civil Rights.—Where there are several church tribunals one above another, when the highest tribunal having jurisdiction of the case has decided a question as to the right of property, a civil court will accept such decision of the church tribunal as conclusive.375 The courts give way to the usages and regulations of the church so far as they are not inconsistent with the constitution and laws of the State.376 As far as civil rights are concerned, the [pg 121] statute of limitations may be pleaded even where those rights are founded upon some law or rule of the denomination.377
211. Creed, Factions, Property, Management.—The supreme court exercises no ecclesiastical jurisdiction, but accepts what the highest ecclesiastical authority in each church promulgates as the faith and practice of that church, and will not determine for itself what that faith or creed is in order to establish the rights of respective factions in the church to the church property. But a majority of a congregation that secedes from the church and forms a new organization can not claim any of the property.378 The civil courts will not interfere with church management so far as concerns the spiritual discipline of the members, but where civil rights of property are involved, the courts may determine them.379 The civil rights of a religious society or its members are within the jurisdiction of the State courts.380
212. Trust, Court of Equity.—A conveyance in trust for the use of a church vests the use in the church and it will be protected by a court of equity.381
[pg 122]213. Injunction, Closing Church, Paying Money, Disturbances.—A court of equity will issue an injunction against the trustees of a church from wrongfully closing it or keeping it closed even against a small minority.382 Church property vested in trustees of a religious body is held under trust and a court of equity has jurisdiction to enforce the trust.383 A court of equity may restrain the trustees of a church from paying money to a duly deposed minister.384 But a court of equity will not interfere to quell religious disturbances when no question as to property or civil rights is involved. The board of trustees of a church can not remove a priest against the will of the congregation.385
214. Suits, Parties.—Where a number of persons have contributed to the erection of a church, it is not necessary for all who contribute to join in an action to restrain a sale of the property for mercantile purposes.386 Any member of a church not incorporated may come into a court of equity in behalf of himself and others and enforce the execution of a trust in favor of the church.387 The same rule would apply to a church [pg 123] where any one in authority is violating the law.388 If several congregations of a diocese are interested in litigation, to hold all the property of the diocese liable for the debt of a parish, each congregation is entitled to be made a party.389
215. Complaint.—A complaint that the plaintiffs hold one doctrinal standard and the defendants another is sufficiently definite without explaining the difference between the two.390
216. Church Tribunal, Courts.—Courts are reluctant to interfere in the church doctrine or discipline or inquire into the regularity of the proceedings of the church tribunal. When such tribunal has deposed a pastor or expelled a member, it is final. However, in contracts, property rights, and civil rights of a citizen, the courts take jurisdiction. It is no defense to a pastor's expulsion that there is salary due him.391
217. Unincorporated Congregation, Actions, Interest.—An unincorporated congregation may be sued on contract in its associate capacity, though no persons are named [pg 124] as trustees or committeeman.392 In all actions by or against a congregation the civil courts will not permit suits to be brought by complainants who have no interest either legal or equitable in the temporalities of the church.393 A suit against a society of Shakers consisting of indefinite membership with changing additions, withdrawals, and deaths, whose property is held in common without any individual interest, may properly be brought in equity as the remedy at law would be inadequate.394
218. Blasphemy, Sabbath, Lord's Prayer, Bible.—Christianity is a part of the common law of the United States; it is on this ground that blasphemy and violation of the Sabbath are made criminal offenses and that the Lord's Prayer and the Bible are used in the schools.395
219. Judicial Notice.—A church takes judicial notice without proof of its own rules, laws, and doctrines. Every other fact should be proved according to the rules of evidence of the church, and in the absence of a church rule the following rules of the courts of this country should prevail:
1. Nothing should be admitted in evidence unless it directly proves or disproves an evidentiary fact forming a link of a chain of facts that will prove a fact in issue.
2. It is sufficient to prove the substance of the issue, unless the exact word or thing forms the issue.
3. The burden of proof is on the one who asserts the fact, whether it is stated affirmatively or negatively, and its proof is necessary to his making a case.
4. The best evidence that the case in its nature affords must be produced.
5. Mere hearsay evidence shall not be allowed, excepting:
[pg 126](a) Matters of public or general interest.
(b) Declaration against interest.
(c) Dying declarations.
(d) The testimony of witnesses since dead or absent.
(e) Admissions.
(f) Confessions.
220. Competent Witness.—Everybody who has the use of reason and understands the import of an oath is a competent witness.
221. Confessions, Secret Societies.—At common law, confessions were admissible; but there is no case in the United States since 1813 where the court has sent a priest to jail for contempt for refusing to disclose a confession, and no case in which a priest disclosed a confession. Immediately after a priest was committed for contempt for refusing to divulge the secrets of the confessional, in 1813, New York enacted the following law: “No minister of the gospel, or priest of any denomination whatsoever, shall be allowed to disclose any confession made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination.” A similar law has been adopted in the following States and Territories: Alabama, Arizona, California, Colorado, Idaho, Iowa, [pg 127] Kansas, Kentucky, Michigan, Missouri, Nebraska, Nevada, North Dakota, Ohio, New York, Oklahoma, South Dakota, Utah, Washington, Wisconsin, Wyoming, and Hawaii. The secrets of a secret society are not privileged, and a member as a witness must answer all relevant questions in court.396
222. Privilege, Answer.—When a question concerning a matter privileged is put, the priest should say: “I claim my privilege as a clergyman and ask the court not to require me to answer”; “Whatever he said concerning the matter, was said to me in the confessional as a priest”; “I talked with him about the matter only in my professional capacity as a priest and confessor”; “I did not speak to him about the matter except in my confidential capacity as priest;” or a similar statement that sets up the clergyman's privilege without giving facts. A clergyman should not say: “He confessed it to me,” or “He told it to me in confession,” or give any other answer that implies what was said in confession, as jurors are always watching for a hint of what was said. Neither should the priest say, “I refuse to answer,” without stating that he refuses because of his privilege as a clergyman. [pg 128] The trial judge or the attorneys trying the case may put proper questions to determine whether the information was given the witness in the confessional or in his capacity as confessor.397
223. Admissions, False Statements.—Admissions or statements made to a clergyman not in his capacity of confidential adviser or in the course of discipline, are not privileged.398 Neither are false statements made to a committee investigating charges; but all statements made to such a committee or an officer of the church, unless false and made with malice, are privileged.399
224. Anonymous Letter, Clergyman.—Where a priest received an anonymous letter alleged to have been written by a defendant, which he read to her, he was not disqualified from testifying that she was excited and that she stated she had no idea how the fire started, and that the letter was unknown to her, etc.400 The mere fact that a communication is made to a clergyman does not make it privileged. It is privileged only when made in confidence of the relation and under such circumstances as to imply that it should forever remain a secret in the [pg 129] breast of the confidential adviser.401 When a matter is privileged, it is not left to the witness whether or not he shall testify concerning it; but he can not testify without the consent of the other party.402
225. Voire Dire.—Where a priest made a preliminary examination of a woman to ascertain her mental capacity to make a confession, her answers in such preliminary examination were admissible in a contest on a will; but her confession was not admissible.403
226. England, Confession.—The rule is now accorded priests in England, but was not formerly. Where a priest turned a watch over to its owner, the court ordered him, under pain of contempt, to tell where he got the watch.404 But in another case it was held that a priest need not divulge the confession of a defendant who was held for crime.405
227. United States, Rules.—In the United States courts, the rule prevails that such confidential communications to a priest shall not be divulged.406
[pg 130]228. Presumptions, Usage.—The usage of a church or the laws of its organization as a religious society, if they are to be considered in deciding legal controversies, must be proved as facts.407 In the absence of proof, it will be presumed that subordinate bodies, as congregations, can not dissolve their connection with the principal organization without permission.408
229. Funeral Expenses.—Witnesses' opinions as to the reasonable amount for burial or as to the cost of a funeral being reasonable, are not binding on a court or jury. The station of a man, the property that he leaves, the life that he has followed, all should be considered by the court. The whims and notions of societies and others are of minor consideration. Those who make funeral expenses that are not allowed by the court must pay them.409
230. Business, Religious Service.—A church organization has the legal right to make any contract concerning its own affairs that is not prohibited by its by-laws or its charter, subject to all laws of legal contracts in the business world. When the consideration is a religious service duly performed, there seems to be no objection to it. Therefore, a minister may collect for preaching a sermon, attending the sick, or saying prayers, or performing any other religious service. But an incorporated church has no authority to enter into a contract for an ulterior purpose, such as the employment of a vessel for the purpose of an excursion.410
231. Incorporated Body.—The only way a religious society that is incorporated can make a contract is by a vote of the aggregate body or of the board of trustees, or through an agent authorized by a vote of one body or the other.411
[pg 132]232. Mortgage, Deficiency Judgment.—Where a mortgage had been foreclosed against church property before the congregation was incorporated, a deficiency judgment can not be rendered against such church corporation.412 But where a congregation was incorporated after a debt had been incurred and took charge of the property, it assumed the debt.413
233. Building Contracts.—The taking part in a meeting by voting and appointing committees to make contracts will bind those taking part in all contracts made in accordance with the directions of such meeting. In some States the individuals are held only to the amount that each subscribes, but in other States each individual is liable for the entire debt.414
234. Individual Promise, Subscriptions, Signature.—An individual promise to give a donation to charity, can not be enforced.415 But subscriptions to build a church or other charitable institution or to pay the salary of a clergyman when signed by more than one person, have been held binding in some [pg 133] cases on the disputed rule of a-promise-for-a-promise consideration.416 In the foregoing cases the donor might revoke his subscription or in case of his death his estate would not be liable.417 However, when expenses have been made or steps taken in the carrying out of the object of the subscriptions, the general rule is that the subscriptions become binding contracts.418 If the object of the subscriptions be abandoned or changed without the consent of the subscriber, he is thereby released. A promissory note given for the subscription, unless negotiated for value in due course of trade, does not change the foregoing rules.419 Where many persons subscribed to build a church and some of them failed to pay, one who paid brought an action on behalf of himself and others and collected the unpaid subscriptions.420 The defendant Nalty signed “Nalty Family, $1,000,” but he was held personally liable.421
235. Special Purpose, Suit.—When money is subscribed for a special purpose, as for rebuilding a church, it belongs to the [pg 134] church organization; and in a suit to recover the money the action should be brought in the name of the corporation, if incorporated, and if not incorporated it should be brought in the name of the interested party.422
236. Promise, Consideration.—A promise made by the owner of land to a trustee for the benefit of a religious society, that he would convey the land to such society if it would build a church thereon, is a good and lawful consideration; and after work was begun on the church, the contract was enforceable in a court of equity.423