jurisdiction over trusts, to interpose for the purpose of carrying the trust into execution according to the intention of the donors. (Miller vs. Gable,

2 Denio, p. 492.) "

This principle of trusts and charitable uses in respect to Church property, taken in connection with the powers possessed by courts of equity, constitutes the guaranty furnished by law against the misapplication and misuse of such property. The law assumes that the original donors had a right to fix and qualify the use; and when they have done so, either expressly or by legal implication, the property is assumed to have been received and to be held as a trust, subject to whatever conditions. may be involved therein, provided they are legal. There is no dispute among judges as to this principle. When they have differed it has been with reference to its application in specific cases. The principle, though by no means invented for the benefit of Churches, is, nevertheless, one of immense importance in relation to the tenure and use of property acquired for church purposes.

10. Civil tribunals, for the purpose of applying this principle, or for that of determining the legal rights of litigant parties in cases properly before them, sometimes have occasion to inquire into the proceedings of the Church itself, and to judge whether they are in conformity with its own law. They do so not to review the proceedings, or to reverse them, or to change their ecclesiastical effect,

but simply as incidental to a decision upon the legal rights of the parties in controversy. A question of faith or one of Church order may be thus collaterally involved. Cases come before the courts affecting vested rights which can be disposed of in no other way.

A conspicuous example of this character is furnished by the suit in regard to the Methodist Book Concern, decided by the Supreme Court of the United States, at the December term in 1853. The Methodist Church of this country, prior to its division, had accumulated a large invested fund, entitled the Book Concern, which had been gathered by the voluntary contributions of its traveling preachers, and which, as a charity fund for the relief of these preachers and their families, was placed under the custody and superintendence of the General Conference. In 1844 this Conference adopted a plan for the division of the Church into two distinct ecclesiastical organizations, and for a division of this fund, in the event that the annual conferences at the South should approve the plan and organize themselves accordingly. These Conferences did so the next year, and, having organized themselves under the title of the Methodist Episcopal Church South, they claimed their proportion of the Book Concern.

In the case of Smith vs. Swormstedt (16 Howard, p. 288), the question came before the Supreme Court of the United States, whether the Methodist

Church South was legally entitled to any portion of this fund. This question the Court answered in the affirmative; and in giving the answer it was compelled to decide whether the General Conference, the highest authority in the Church, had the power to provide for the division of the Church that took place, and also whether the annual conferences at the South had acted in accordance with the provision. Both of these questions were answered affirmatively. Justice Nelson, in delivering the opinion of the Court, held the following language:

"The division of the Methodist Episcopal Church having thus taken place in pursuance of the proper authority, it carried with it, as a matter of law, a division of the common property belonging to the ecclesiastical organization, and especially the property of this Book Concern. It would be strange if it could be otherwise as it respects the Book Concern; inasmuch as the division of the association was effected under the authority of a body of preachers who were themselves the proprietors and founders of the fund."

The sole ground upon which the Court made any decision about the authority of the General Conference was to settle the legal rights of the parties in litigation; and this is the ground, and the only ground, upon which civil courts can raise inquiries within the limits of the Church proper, as distinguished from the incorporated religious soci

ety. Whether the inquiry respects matters of faith, or those of Church order, it is not in review or correction of either, but simply for the purpose of deciding questions that relate to vested civil rights.

These general statements in regard to American Ecclesiastical Law, though but a meager sketch, must suffice to indicate its policy with reference to religious societies. It is not a policy of unfriendliness towards them, or of any discrimination among them, or of any interference with the internal and spiritual affairs of the Church proper, or of any union between Church and State. It is a policy which, in addition to complete toleration of all religious societies, and their protection against molestation and disturbance, touches them mainly, if not exclusively, in respect to the rights of property. The plan of incorporating religious societies, and thus clothing them with the rights, powers, and liabilities of bodies corporate, is the simplest way of settling the problem of their temporalities, and enabling the State to deal with those questions that relate to these temporalities.

The fact, moreover, that the State confines its jurisdiction to this sphere, and that it studiously avoids any interferenee with the spiritual part of Church life, by not administering its functions, or appointing its officers, or making any provision therefor, shows the general position which it means to take in regard to religion. The position, in the

extent of it, is peculiar to this country, and differs widely from that of the colonial period. Its exact parallel is not to be found anywhere else. It is based upon the theory that the proper functions of civil government do not extend to the administration, regulation, or propagation of religion, or the control of any of its spiritual agencies. Mr. Hoffman, in his "Ecclesiastical Law in the State of New York" (p. 274), remarks: "In no part of the world is the great principle of the exclusive rule of the Church in matters ecclesiastical, and of the State in matters civil, more generally recognized than in the United States."

Very plainly, a school system governed by the State, and supported by compulsory taxation, yet in which religious instruction or worship is made an element thereof, is not in harmony with the policy and character of American Ecclesiastical Law. It violates the spirit of that law. It undertakes to do in the public school what the State utterly declines in the Church, and thus makes the State inconsistent with itself. It carries the agency of the State beyond the sphere of things temporal into that of things spiritual. It is both an abandonment and a contradiction of the general principles upon which the State elsewhere acts.