ARTICLE III.-MR. DANIEL LORD AND THE AMERICAN TRACT SOCIETY.

A NEW question has arisen in the American Tract Society, more important than any question of mere expediency, or even of the performance of a specific duty; a question which reaches into the very organism of the Society, and the foundations on which it rests. Has the Society, under its charter and constitution, the right to control its own affairs, or has it so divested itself of authority, that its Executive Committee, elected by it, are absolute and uncontrollable, and may conduct the business of the Society in accordance with their own views, uninfluenced and unassisted by the expression of the opinions. or wishes of the Society itself?

This is a question of vital interest. The relations which this Society bears to the churches of the country, and to the great interests of religion, are so multifarious and extended that this question rises in importance above every other, and must be settled in such a manner as to command the approval of the Christian community on which the Society depends for support. The officers of this Society, and of all our benevolent Societies, must be responsible, not merely to their own consciences and to God, not simply to the public sentiment of the community, in that general sense in which every man is so responsible, not only to the churches, from which contribu tions are received, but to the Society froin which they derive their appointment, which should have the right and the power to demand and enforce a strict specific responsibility. If the members of the Society have no rights which the Executive Committee are bound to respect, the plan of a voluntary Society for benevolent ends must be abandoned. Better the system of ecclesiastical boards, better the system of priestly control, than a so-called voluntary system, which allows no volition and no freedom, except to the agents and officers of the Society.

It will be remembered that at the late annual meeting of the American Tract Society, a resolution was offered by William Jay, Esq., as follows: "Resolved, That the publishing committee be instructed to publish, during the coming year, one or more tracts on the moral evils and vices which slavery is known to promote, and which are so much deplored by evangelical Christians.”

Whereupon Daniel Lord, Esq., rose and opposed the adoption of the resolution, and advanced the idea that the Society has no right to instruct or advise its officers. So conclusive did he regard his own argument and so thoroughly exhaustive of the subject, that he concluded by moving to lay the resolution of Mr. Jay on the table, for the expressed purpose of preventing any debate or reply.

We propose to examine this question by reference to the charter and constitution and practice of the Society, and such principles of law as seem applicable to the case. If in so doing we detect the fallacies, and expose the errors of Mr. Lord's argument, we do so with a high regard to his character as a man, and to his legal reputation. For we are not of the num ber of those who think that when a man of his character makes an argument it is necessarily conclusive, since we know that it is the duty of an advocate to sustain the interests and views of his clients as best he can, and that a professional man of high attainments is not always employed on the right side, and that such an one sometimes uses arguments which do not meet the approval of the courts of last resort. To the Christian community, Mr Lord has referred the discussion, and to that tribunal of last resort the decision may safely be left.

We proceed then to an examination of the charter and constitution of the Society, upon the construction of which two instruments the legal aspects of the question depend. The charter passed May 26, 1841, provides:

* * *

1. James Milnor, * and William A. Hallock, and all such persons as now are, or may hereafter become members of the American Tract Society, formed in the city of New York in the year 1825, are constituted a body corporate,

by the name of the American Tract Society, for the printing and circulating religious publications.

2. The net income of said society, arising from their real and personal estate, shall not exceed the sum of ten thousand dollars annually.

3. This corporation shall possess the general powers and be subject to the provisions contained in title third of chapter eighteen of the first part of the Revised Statutes, so far as the same are applicable and have not been repealed.

By this charter an artificial being was created, a being known to the law as a corporation, a being having a will and capable of exercising that will in reference to the particular object for which it was formed. Previous to their incorporation the members of the society had the right, and had exercised it, to transact the same business, as associated individuals, as after this act was passed, but they found or expected to find advantages from acting in a corporate capacity, and so became subject to the general principles relating to such corporations, and to the statute on the subject referred to in the charter.

Mr. Justice Story, in clear and precise language, thus defines a corporation:

"An aggregate corporation, at common law, is a collection of individuals united into one collective body under a special name, and possessing certain immunities, privileges, and capacities, in its collective character, which do not belong to the natural persons composing it. Among other things it possesses the capacity of perpetual succession, and of acting by the collected vote or will of its component members, and of suing and being sued in all things touching its corporate rights and duties. It is, in short, an artificial person, existing in contemplation of law, and endowed with certain powers and franchises, which, though they must be ex ercised through the medium of its natural members, are yet considered as subsisting in the corporation itself, as distinctly as if it were a real personage." And he defines eleemosynary corporations to be "such as are constituted for the perpetual distribution of the free alms and bounty of the founder in such manner as he has directed."

What under this charter is the character of this corporation? Mr. Lord classes it with eleemosynary corporations. Nothing, however, appears in the charter which can be construed as constituting an eleemosynary corporation, nothing which is inconsistent with pecuniary profit or with common business purposes. There is no intimation that any funds are to be used but the

funds of the corporators, and no individuals desiring corporate powers for the printing and circulating religious works for pecuniary profit would need any other charter than this. Moreover one of the essentials of an eleemosynary corporation is that there shall be a foundation of a permanent character, so that in the language of Judge Story, "perpetual distribution may be made of the free alms and bounty of the founder, as he has directed," in whom and his heirs the right of visitation at common law exists. The facts in reference to the American Tract Society will hardly bring it within this definition. In 1847, the legislature of the State of New York caused certain interrogatories to be propounded to the officers of the society, to which they responded under the solemnity of an oath, that they have no permanent vested funds; that the principle of the society has ever been not to hoard funds for future years, but freely to dispense the blessings of the institution to the full extent of the means committed to its management. These answers are verified by the oaths of Theodore Frelinghuysen, President, Moses Allen, Treasurer, W. A. Hallock and R. S. Cook, Secretaries, and O. R. Kingsbury, Assistant Secretary and Treasurer. We hesitate then to adopt the principle enunciated by Mr. Lord that this Society is "a charitable foundation" in every sense, and that it is to be governed by the rules relating to such foundations. He himself advances a proposition inconsistent with this principle, when he says, "as to the donors they give their property to the charity; it is an entire gift, parting with their right as proprietors. After a thing is given, every man, woman and child knows that the giver can no longer control and direct it. If, therefore, all those who have contributed to make up this fund could be present, they could have no right to interfere with, or change the administration of this fund." Now Judge Story says, "To all eleemosynary corporations a visitatorial power attaches as a necessary incident; for these corporations being composed of individuals, subject to human infirmities, are liable, as well as private persons, to deviate from the end of their institution. The law, therefore, has provided that there shall somewhere exist a power to visit, inquire into, and correct all irregularities and abuses in such cor

porations, and to compel the original purposes of the charity to be faithfully fulfilled; and of common right, the founder and his heirs are the legal visitors." Then, if this is an eleemosy nary corporation, there is power in the donors who founded it to control and direct "this fund," even after they have "given" it, for such power attaches as a "necessary incident." If this power does not exist in this Society, then it is not such a corporation as Mr. Lord claims.

When a private eleemosynary corporation is established, the right of visitation, at common law, is in the founder and his heirs. When trustees are incorporated for the purposes of controlling a charity, as is done by the charters of Dartmouth College and Yale College, the right of visitation is in the trustees, so incorporated. The error of Mr. Lord is in supposing this corporation to be like the college corporations referred to. In those cases trustees are incorporated for the purpose of controlling a charity; in this case no charity is alluded to in the charter, no trustees are incorporated by it, and no change is made in the relations of the Society and its officers, under the charter, from what they were before.

We would rather say that the Society is not made a trustee by its act of incorporation, but that by the fact of being incorporated, it is as competent to receive trusts as any other person, and is subject not to the laws regulating charitable foundations, for it has no "foundation" in the technical sense, but to the laws regulating trusts, which are of every day application between man and man. The American Tract Society is a charitable Society, but it will not do to base legal rights on popular language.

We are told by Mr. Lord that "the members of the Society are mere trustees." No man knows better than Mr. Lord, the distinction between a corporation and the individual members of a corporation; the distinction so clearly drawn by Judge Story, as quoted above; and that even if the individual members of a corporation were all trustees for the same person, this would not constitute the corporation a trustee; and so on the other hand, if a corporation is a trustee, this would not make the individual members of the corporation trustees.