usurping the office of vestrymen of the corporation called, "The Ministers, Vestrymen, and Church-wardens of the "German Lutheran Congregation in and near the city of "Philadelphia, in the state of Pennsylvania;” and against the three last named defendants for usurping the office of churchwardens. The defendants pleaded, that they were duly elected to their respective offices. The verdict was against them, and they have moved for a new trial. 1. The first reason assigned for a new trial is, that the Judge who tried the cause, permitted evidence to be given, on behalf of the Commonwealth, of conversations between individuals and of transactions at meetings of the corporation of the German Lutheran Congregation, and at meetings of certain members of the Congregation; and at meetings of certain voluntary societies, without any previous specification or notice that such evidence would be offered at the trial; and, moreover, that such evidence was irrelevant to the issue. As to giving notice of the evidence, no authority has been produced to shew, that it was necessary. The rule is, that either party may give evidence pertinent to the issue. The question is then, whether the evidence was pertinent. The issue is on the legality of the election. Every thing, therefore, is evidence which tends to shew, that it was illegal. There was tumult and violence on the day of the election; and those previous meetings and conversations were connected, as was contended on behalf of the prosecution, with what took place at the election. The jury were charged to pay no regard to these previous transactions, unless in their opinion they were connected with the election. But unless they were permitted to hear them, they could not judge whether they were so connected or not. Some of these previous matters were of such a nature as might well have an influence on the election. For instance, threats of bloodshed, and confederacies of members, might have a powerful effect in deterring peaceable people from going to the election. Of this the jury were to judge; and I think it was properly submitted to them. 2. The second reason for a new trial is, that a certain byelaw of the corporation was permitted to be given in evidence, without previous proof that it had been duly enacted as a bye-law by a quorum of two-thirds of the corporation, convened upon due notice, according to charter. v. and others. 1817. The books of the corporation, containing minutes of their The Com- transactions, were produced by the defendants at the request monwealth of the Commonwealth. These books are evidence in disWOELPER putes between members of the corporation; though not against strangers. The law is so laid down in Phillips on Evidence, 319, and I think correctly; and the case is the stronger when the books are produced on the call of the adverse party. Now it appears by these minutes, that "after due invitation, "the ministers, elders, and church-wardens of the German "Lutheran Congregation met." This amounts to saying, that two-thirds of them met; because the charter requires that two-thirds should be assembled for the transaction of ordinary business. The minute of this meeting is like that of all the others. Their custom has not been to mention the names of the members who attended, or their numbers. It is a bad practice; but there is nothing on the minutes of the meeting at which this bye-law was passed, which induces a suspicion that it was not regular. I am, therefore, of opinion, that the evidence was sufficient to prove a meeting of two-thirds of the members after due notice. But now that I am upon the subject of the bye-law, it will be proper to consider what it is, and whether its provisions are legal. For it has been contended on both sides, that particular parts of it are illegal, though it is not agreed what these parts are. The fact is, that each party finds something in the law, which makes in his favour, and something which is against him. The bye-law was passed the 21st December, 1805, and its object is to regulate the proceedings at elections. By the third article, the president of the corporation is authorised to appoint two inspectors of the election. The defendants say this is all right; but the prosecutors contend, that it is illegal; being an infringement of the rights of the congregation. By the ninth article it is provided, that "if, "besides the names, there are other things upon the tickets, "or if two or more tickets are found together, such tickets "shall not be read off, and are not to be counted." The counsel for the prosecution approve of the whole of this article; but the defendants say, that the rejection of the tickets. on which any thing stands besides the names, is an arbitrary and unreasonable regulation, exceeding the power of the corporation. The original charter of the corporation was granted by V. WOELPER the proprietaries of Pennsylvania, on the 25th September, 1817. 1765; and at the request of the congregation it was confirm- The Comed, with some alterations, by act of assembly of the 3d March, monwealth 1780. By the 8th section of the charter, and the 11th section of the act of assembly, the corporation was authorised, and others. "to make rules, bye-laws, and ordinances, and to do every "thing needful for the good government and support of the "congregation." But the right of electing the vestrymen and church-wardens, belongs to the congregation. It is argued on the part of the Commonwealth, that the appointment of inspectors who are judges of the election, is an incident to the right of election, and therefore belongs to the congregation and the corporation had no power to deprive them of it. If the taking from the congregation the choice of inspectors, be really an infringement of the right of election, the bye-law cannot be good. But I do not view it in the light of an infringement. It rather appears to be a wholesome regulation, tending to prevent disorder on the day of election. The choice of the vestrymen and church-wardens still remains entire in the congregation. The inspectors do no more than receive and count the votes. But it is said that the inspectors are judges, and may decide the election as they please, by the admission or rejection of votes. Their office is ministerial rather than judicial. The charter declares who may vote, and the inspectors are bound by it. To be sure they must in some cases exercise their judgment, when a question arises on the construction of the charter. But so must every ministerial officer, when a question arises on the extent of his powers. If an inspector refuses a vote, the injured person is not without remedy. The decision of the inspector may be examined before some competent tribunal. This is exemplified in the present prosecution; the object of which is to annul the proceedings of the inspectors. The choice of inspectors by the congregation is very inconvenient. An election without a judge is apt to be disorderly. Now who is to be the judge at the election of inspectors? It was to prevent this disorder that the appointment was vested in the president; and inasmuch as the election is still decided solely by the votes of the congregation, I am of opinion, that the bye-law is not an invasion of their rights, but tends to their good government within the meaning of the charter. Let us now look at the other VOL. III.-E 1817. The Com V. and others. part of this bye-law, that which respects the tickets. The charter does not specify in what manner the congregation monwealth shall give their votes: but the 9th section of the act of asWOELPER Sembly declares that all elections shall be held by ballot. The bye-law regulates the manner of balloting. We have it in evidence, that the elections were formerly disturbed by the foolish and sometimes indecent practices of voters. Trifling. or ill natured remarks, meant for witticisms, were written on the tickets, and sometimes the names of women of the town. To put an end to this kind of folly, and perhaps to prevent other inconveniences, the provision in the bye-law was introduced. And surely no one can complain, that his right of voting is impaired, when he is directed to give his vote, and nothing but his vote. When nothing but the names. appear on the tickets they are easily read and counted. This tends to the despatch of business, and is a good regulation, as the election is to be made in one day. I am therefore of opinion, that this part of the bye-law is good. 3. The third objection of the defendants is, that it was given in charge to the jury, that the inspectors acted illegally in receiving the votes of aliens. This is a point of importance, not only to this but many other congregations. The counsel on both sides have been aware of its magnitude, and to do them justice, they have argued it extremely well. The charter is prefaced by a recital, "that divers members of "the German Lutheran Congregation, his Britannic Ma"jesty's liege and naturalised subjects, residing in and near "the city of Philadelphia, had at a great expense, purchased "four lots of ground, and erected thereon a large church. "called St. Michael's Church, with a school-house and par"sonage-house, and had set apart the remainder of the said "lots for a burial place and other public uses of the said congregation." In the first place, a dispute arises on the meaning of the words liege and naturalised subjects. Are we to understand by the word liege, only native subjects; or does it include all persons residing in the country who are bound by their residence to a temporary allegiance? Perhaps a person who owes but a temporary allegiance might, without impropriety, be called a liege subject. And it is certain that in an indictment of such a person for treason, it would be said that he had committed the treason contra ligeantiæ suæ debitum. Among lawyers, however, by the term The Com V. WOELPER and others. hege subject, is generally understood a natural born subject, 1817. as appears by Co. Lit. 129, a. and the marginal note in 2 Inst. 742. And this is the sense in which I take it to be used monwealth in the charter. For it is most probable that those persons who had purchased the ground and received a conveyance of it, were either natural born or naturalised subjects, capable of holding without dispute a legal estate in land. The next question is, to whom do these words "liege and naturalised "subjects" refer; to the whole congregation, or the divers members who had purchased the lots? I take it they refer to those members, and not to the congregation. This is the most natural construction: because it is certain that the subsequent parts of the same sentence, viz. "have at a great ex"pense purchased four lots of ground," &c. refer, not to the congregation, but the divers members. In the second section of the charter is a long recital, in which mention is made of certain fundamental articles established by the congregation, "tending to the orderly and good government of "the said church, the advancement of true piety, and the "forming good christians faithful subjects to his sacred "majesty, &c." I see nothing material in this recital; for whether a member of the congregation was a natural born or naturalised subject, or an alien who intended to be naturalised, these articles might "tend to make him a faithful subject." The third section creates the corporation; and the eleventh, which is the most material, fixes the number of which the corporation shall consist, viz. the rector, twelve vestrymen, and six church-wardens, "who shall be chosen "by the contributing members, being communicants of the "said congregation." The act of assembly confirming the charter makes no alteration in the qualification of voters; except that no person shall be entitled to vote, who is not of the age of 18 years. Thus we see that the corporation and congregation are different. The corporation hold the estate for the use of the congregation: and the congregation elect the members of the corporation. In the qualification of voters there is no mention of natural born or naturalised subjects, as there is in the recital, in the first section of the charter. Whence this difference of language but from difference of intent? The charter is well drawn; the hand of a lawyer appears throughout. If it was intended to exclude aliens from voting, it is not to be conceived that the proper ex |