59 Mass. 412 - Farnsworth v. Storrs — 59 Mass. 412

Jonas Farnsworth & wife vs. Richard S. Storrs. Where, in a sentence of excommunication from a church, read by the pastor on Sunday, in the presence and hearing of the congregation, it was lecited, that the offendc ''ad “ clearly violated the seventh commandment,” and in a subsequent part of the sentence, it was declared, “ that this church does now as always bear its solemn testimony against the sin of fornication and uncleanness; ” it was held, that the charge of violating the seventh commandment did not import the crime of adultery, in its legal and technical sense, as an indictable off! nee. Congregational churches, in this commonwealth, have authority, to which every member, by entering into the church covenant, submits, to deal with their members for immoral and scandalous conduct; and for that purpose, to hear complaints, to take evidence, to decide, and upon conviction, to administer punishment by way of rebuke, censure, suspension, and excommunication; and all persons, who participate in the exercise of this authority, whether by complaining, giving testimony, acting and voting, or pronouncing the result, orally or in writing, provided they act in good faith, and within the scope of the authority of the church, are protected by law. When a vote of excommunication from1 a church has been passed, and the offender thereby declared to be no longer a member, the sentence may nevertheless be promulgated, by being read in the presence of the congregation, by the pastor. This was an action, tried before Wilde, J., for an alleged libel upon the female plaintiff, published by the defendant on the 28th of February, 1847, which was Sunday, by reading from the pulpit, before a congregation, in Braintree, of which he was the minister, a paper, of which the following is a copy : — “ The members of this church have entered into solemn covenant with God and each other, to 1 renounce all fellowship with the unfruitful works of darkness ’ and ‘ to walk as children of light’ and ‘ adorn the doctrine of God our Saviour in all things; ’ also to maintain mutual watchfulness over each other, in the spirit of brotherly love and Christian charity; and in maintaining church discipline, ‘ to adopt, execute, and submit to the mode pointed out in the eighteenth chapter of Matthew; ’ and, “ Whereas Mrs. E. Miranda Farnsworth, unmindful of these covenant engagements, has clearly violated the seventh commandment, and brought dishonor on the name of Him whom she has avouched as her God and Saviour, and grieved the hearts of her brethren and sisters of the church, and given occasion to the enemy to speak reproachfully. And, whereas she has been faithfully and patiently dealt with agreeably to Christ’s direction above referred to, and earnestly entreated, publicly to confess her offence, and thus remove the reproach resting on the cause of Christ, and comfort the hearts that are aggrieved; and, “ Whcveas after several months of patient waiting and affectionate expostulation by the brethren, she declines publicly to acknowledge and deplore her offence, de libewtely preferring excision from the church to such an act of just humiliation therefore, “ Resolved, 1st. That in deep sorrow of heart, but in obedience to God’s commands, we separate Mrs. R. Miranda Farnsworth from the visible church of God, and no longer regard her as having any claim on our communion, watch, and fellowship. “ Resolved, 2d. That this church does now as always bear its solemn testimony against the sin of fornication and uncleanness, as an unfruitful work of darkness, eminently dishonorable to the God of purity and love; polluting to the soul of man and fearfully prejudicial to the welfare of society and the world. “ Resolved, 3d. That if at any time Mrs. R. M. Farnsworth shall give evidence of sincere repentance, and a disposition to return to God, and make her peace with him, it will give great joy to his church to open their arms and receive her to a participation of all their privileges, hopes, and consolations. “ As pastor of this church, and by their direction, I do now therefore publicly and solemnly declare the fellowship hitherto existing in holy things, between Mrs R. Miranda Farnsworth and the visible church, to be, and hereby is, dissolved.” There was a second count in the declaration, setting forth in words the paper which was read by the defendant, with an allegation, that he intended thereby to charge the female plaintiff with the crime of adultery. The defendant pleaded the general issue, and specified the following grounds of defence, to wit: That the paper declared on by the plaintiffs was read to the congregation by direction of the church of which he was pastor, in the performance of his official duty, in the regular administration of church discipline, according to ecclesiastical usage, and the practice of that church, and in good faith, in the belief that it came within the discharge of his official duty, as aforesaid, and was a privileged communication : That he did not charge the plaintiff with the crime of adultery, but with an offence which was a violation of the spirit of the seventh commandment, and after-wards in the same paper explained to be fornication ; and that this was the offence intended to be charged and was so understood by all who heard it: That the female plaintiff had been guilty of the offence of fornication with the said Jonas before their marriage, on or about the first of July, 1845, at which time she was a member of the defendant’s church, and was thereafterwards dealt with according to the established usage of the church, and was excommunicated therefrom, on account of the offence above mentioned, and on account of her refusal to make confession therefor. It was admitted that the female plaintiff was a member of the defendant’s church, at the time of the alleged commission of the offence changed, and for several years before her excommunication. It was also admitted, that she gave birth to a living full grown child about five months after her marriage with the said Jonas; which, as the said church and the defendant alleged, was the fruit of intercourse before marriage. The plaintiffs stated, that they did not intend, for the purposes of this trial, to offer any evidence to show malice, other than that evidenced by the publication of the libel. The defendant offered to prove, that the offence of the female plaintiff had been before the church for discipline for several months, and that on her refusal to make confession, she was excommunicated by a vote of the church, and the form of excision was prepared and approved in the church meeting, and the defendant directed to read it before the congregation. He also offered to prove, that the practice of that church in aggravated and notorious offences, like the present, was to require a public confession, or make the excommunication public; and that this practice was sustained by the authority of standard writers on church discipline, from the earliest periods of our history. He offered also the testimony of living divines, to show that the discipline administered in this case was sustained by the present ecclesiastical usage. The defendant further offered to prove, that theological interpretation and common understanding justified the use of the general term “ violation of the seventh commandment” to designate fornication as well as adultery; that the facts ot this case were well known among the congregation, and that the offence, intended and understood by all who heard it to be charged against the female plaintiff, was fornication and not adultery. It was agreed, that the case should be reserved for the whole court on the report of the above facts and admissions, and on the competency of the evidence offered by the defendant; and that if the court should be of opinion that the writing was a privileged communication, or that it was to be interpreted bv the court, with or without the aid of extrinsic evidence, and not by the jury, and that thus interpreted it did not charge the female plaintiff with the crime of adultery in the sense of the statute law, the plaintiffs should become nonsuit. T P. Healy and N. Richardson, for the plaintiffs. R. Choate and G. W. Warren, for the defendant. — Shaw, C. J. (majority) Shaw, C. J. The court are of opinion, that the defendant is justifiable on both grounds. Taking the whole contents of the paper together, as read before the church and congregation, and the time and the occasion, it did not impute to the plaintiff the crime of adultery, in its legal and technical sense, as an indictable offence ; but taking it in connection with other parts of the sentence of excommunication, the charge that she had violated the seventh commandment was a charge of unchaste and licentious conduct, inconsistent with her duty and moral obligations, and more especially the obligations, which she had taken upon herself, by entering into church covenant. The case of Goodrich v. Davis, 11 Met. 473, was a question of pleading, and it was held, that an imputation of violating the seventh commandment, taken in connection with various other passages in the publication, giving effect to the meaning, with proper averments and colloquia, might be taken to be a charge of adultery. This has no application to the present case. But on the other ground, we think the result must be the same. The rights of churches to use, exercise, and enjoy all their accustomed privileges and liberties, respecting divine worship, church order and discipline, &c., are declared and secured by statutes passed at various times, and in force to the present day. St. 1799, c. 87, § 1; St. 1834, c. 183, § 1; Rev. Sts. c. 20, § 3. Amongst these powers and privileges, established by long and immemorial usage, churches have authority to deal with their members, for immoral and scandalous conduct; and for that purpose, to hear complaints, to take evidence and to decide ; and, upon conviction, to administer proper punishment by way of rebuke, censure, suspension and excommunication. To this jurisdiction, every member, by entering into the church covenant, submits, and is bound by his consent. Remington v. Congdon, 2 Pick. 310, 315. The proceedings of the church are quasi judicial, and' therefore those who complain, or give testimony, or act and vote, or pronounce the result, orally or in writing, acting in good faith, and within the scope of the authority conferred by this limited jurisdiction, and not falsely or colorably, making such proceedings a pretence for covering an intended scandal, are protected by law. It appears to us, that the defendant, as pastor of the church, and minister of the congregation, was acting within the scope of his authority, in reading a paper, which, it was proved had been adopted in a separate meeting of the church, and directed thus to be read. But the ground finally relied on by the plaintiff seems to be this, that the disciplinary act of the church was completed and finished, when they passed the vote of excommunication; that the plaintiff thereby ceased to be a member of the church, or within its jurisdiction ; and that the subsequent reading of the paper, in the presence of the congregation, was an unwarranted and officious act, and proof of express malice. But we cannot take this view of the case. The decision was agreed on in church-meeting, and ordered to be promulgated by reading it before the church and congregation. The church and congregation, to some purposes, form one religious society, associated under one pastor and minister for religious improvement. The church constitutes a select body, set apart for special purposes by covenant, and at the same time forms part of the congregation. Other members of the congregation may, upon suitable application, become members of the church, and all have a common interest in the general religious welfare of each other. In many congregations, proposals for admission to the church, and actual admissions, take place before the congregation; and in all societies, the ordinance of baptism is public. One great purpose of an act of church discipline is, that it may have a salutary influence upon the whole religious body, of which the offender is a member. Under the circumstances, we consider that it was quite within the scope and order of church discipline, without proof of a particular custom, to announce such an ecclesiastical censure, as it was made the duty of the defendant, by a vote of the church, to do, in the presence of the church and congregation assembled together for public worship and religious improve ment. Plaintiffs nonsuit