Waite v. Merrill

Mellen C. J. This case presents two questions for consideration. I. Were certain members of the society of shakers properly admitted as witnesses? and 2. Were the instructions of the Judge to the jury correct ? 1. The objection to the admission of the witnesses seems to have been effectually removed by the releases given at the trial. A question of the same nature was settled by this court in the case of Anderson & al. v. Brock 3 Greenl. 243; the only difference is, in that case the witnesses were introduced by the plaintiffs ; and they and the witnesses executed mutual releases. This objection, therefore, is overruled. 2. The second deserves more consideration. Under the instructions which the jury received, they have found that the plaintiffknowingly signed the covenant ; and by the report it appears that he was a man of common natural abilities and understanding; and sometimes taught and exhorted in the religious meetings of the society ; and that he was more than twenty one — 117 — years of age when he signed it. By thus signing, he assented to all the terms and conditions specified in that covenant ; made its stipulations his own, and agreed to conform to the rules and regulations of the society in relation to its spiritual and temporal concerns. By the covenant, and also from the testimony of the plaintiff’s own witnesses, it appears that a community of interest is an established and distinguishing principle of the association ; that the services of each are contributed for the benefit of all, and all are bound to maintain each, in health, sickness and old age, from the common or joint fund, created and preserved by joint industry and exertion. And each one by the express terms of the covenant engages “ never to bring debt or demand against " the said deacons nor their successors, nor against any members “ of the church or community, jointly or severally, on account of “ any service or property Ihus devoted and consecrated to the aforesaid sacred and charitable use.” Such are the facts as to the contract into which the plaintiff entered when he subscribed the covenant. It is an express contract. The plaintiff, in the present action, however, does not profess to found his claim on an express promise ; but he contends, that upon the facts proved and disclosed in the report before us, the law implies a promise on the part of the defendants to pay him for his services, although they were performed for the society, of which the defendants are officers, and not for them in their private capacity ; and although such an implied promise is directly repugnant to the covenant, or written contract. Bésides, it is clear from all the evidence in the cause, that whatever services the plaintiff performed while he was a member of the society, and remained and labored with them, he performed in consequence of his membership, and in pursuance of the covenant, in virtue of which he became a member. Now it is a principle perfectly well settled that where there is an express contract in force, the law does not recognize an implied one ; and where services have been performed under an express contract, the action to recover compensation for such services must be founded on that contract and on that only, unless in consequence of the fault or consent of the defendant. In the present case there is no proof that the oovenanthas been violated — 118 — on the part of the society, or that the plaintiff had any right to waive that covenant and its special provisions, and resort to a supposed implied promise on which to maintain his action. But as the covenant refers to the order of the church and their peculiarities of faith > and as at the trial both parties, without objection, went intoan examination of witnesses, and thus obtained all those facts in relation to the society which are detailed in the Judge’s report; the argument of the counsel has been founded on all the evidence in the cause viewed in a body ; and, of course, in forming our opinion, we shall place it on the same broad foundation, without reference to technical objections, if any should present themselves. We are perfectly satisfied that the covenant was properly admitted as proof to the jury, to shew on what terms and considerations the services were performed by the plaintiff, for which he is now seeking compensation. We are also of opinion that the instructions of the Judge to the jury were correct, if the covenant signed by the plaintiff, taken in connection with those facts in the cause which are considered on this occasion, as a part .of it, is a lawful covenant, — one which the law will sanction, as not being inconsistent with constitutional rights, moral precepts, or public policy. This leads us.tothé examination of the covenant, the principles it contains and enforces, and the duties it requires of the members of the society. The counsel for the plaintiff contends that the covenant is, for several reasons, void, and ought to.be pronounced by this court to be a nullity. It is said that it is void, because it deprived the plaintiff of the constitutional power of acquiring, possessing and protecting property. The answer to this objection is, that the covenant only changed the mode in which he chose to exercise and enjoy this right or power ; he preferred that the avails of his industry should be placed in the common fund or bank of the society, and to derive his maintenance from the daily dividends which he was sure to receive. If this is a valid objection, it certainly furnishes a new argument against banks, and is applicable also to partnerships of one description as well as another. — 119 — It is said that the covenant or contract is contrary to the genius and principles of a free government, and therefore void. To this it may be replied that one of the blessings of a free government is, that under its mild influences, the citizens are at liberty to pursue that mode of life and species of employment best suited to their inclination and habits, “ unembarasssed by too much “ regulation” ; and while thus peaceably occupied, and, without interfering with the rights and enjoyments of others, they freely are entitled to the protection of so good a government as ours ; though perhaps all these privileges and enjoyments might be contrary to the genius and principles of .an arbitrary government. But, in support of this objection, it is contended that the covenant is a contract for perpetual service and surrender of liberty. Without pausing to enquire whether a irfan may not legally contract with another to serve him for ten years as well as one, receiving an acceptable compensation for his services, we would observe that by the very terms of the fourth and fifth articles, a secession of members from the society is contemplated and its consequences guarded against in the fifth by covenants never to make any claim for their services, against the society ; and the fourth article speaks of a compliance with certain rules so long as they “ remained in obedience to the order and government of the " church and holden in relation as members.” Besides the general understanding and usage for persons to leave the society whenever they are inclined so to do, the plaintiff' himself has in this case given us proof of this right, hy withdrawing from their fellowship, and, now, in the character of a stranger to their rules and regulations, demanding damages in consequence of the dissolution of his contract. We, therefore, cannot consider the contract of a subscribing member as perpetual; he may dissolve his connection when he pleases, though perhaps he may thereby surrender some of his property, as the consideration of his dissolution of the contract. In all this we see nothing like servitude and the sacrifice of liberty at the shrine of superstition or monastic despotism. It is said the covenant is void because it is in derrogation of the inalienable right of liberty of conscience. To this objection — 120 — the reply is obvious ; the very formation and subscription of this covenant is an exercise of the inalienable right of liberty of con* science. And it is not easy to discern why the society in question may not frame their creed and covenant as well as other societies of Christians ; and worship God according to the dictates of their consciences. We must remember that in this land of liberty, civil and religious, conscience is subject tono human law; its rights are,not to be invaded or even questioned, so long as its dictates are obeyed, consistently with the harmony, good order and peace of the community. With us modes of faith and worship must always be numerous and variant; and it- is not the province of either branch of the government to controul or restrain them, when they appear sincere and harmless. Again it is urged that the covenant, is void, because its consideration is illegal, that it is against good morals and the policy of the law. We apprehend that these objections cannot have any foundation in the covenant itself; for that is silent as to many particulars and peculiarities which the counsel for the plaintiff deems objectionable. The covenant only settles certain principles as to the admission of members; community of interest ; mode of management and support; acquisition and use of the property ; stipulations in respect to services and claims ; professions of a general nature as to the faith of the society, and a solemn renewal of a former covenant ‘and appointment of certain officers. This is the essence of the covenant signed by the plaintiff ; and on this the defendants rely ; as a written contract of the plaintiff; under his hand and seal, never to make the present claim ; and also as a complete bar to it. Now, what is there illegal in its consideration, or wherein is it against good morals or the policy of the law. It does not contain a fact or a principle which an honest man ought to condemn; but it does contain some provisions which all men ought to approve; it distinctly inculcates the duty of honest industry, contentment with competency, and charity to the poor and suffering. In this view of the subject, these objections vanish in a moment. But if we consider them as founded on the covenant, and all the evidence in the cause together, the result of the examination will not in a legal — 121 — point of view be essentially varied. It is certainly true that some articles of faith, peculiar to the society, appear to the rest of the world as destitute of all scriptural foundation; and several of their consequent regulations unnatural, whimsical and in their tendency, in some respects, calculated to weaken the force of what are termed imperfect obligations. Professing to exercise a perfect command over those passions, which others are disposed most cheerfully to obey, they, perhaps in so doing, may chill some of the kindest aifections of the heart, gradually lessen its sensibility, and to a certain extent, endanger, if not seriously wound “ the tender charities of father, son and brother.” Perhaps celibacy, out of the pale of this church, has often the same tendency. It is true the mode of education and government may be too restrictive ; and the means used to preserve perfect submission to authority may be deemed artful, severe, and in some particulars highly reprehensible, especially in their pretended knowledge of the secrets of the heart. On the other hand it appears, as before stated, that benevolence and charity are virtues enjoined and practised ; and the plaintiff’s witnesses, who had formerly belonged to the society for several years, testified that “ all vice and immorality are disallowed in the society, and integrity, uprightness and purity of life are taught and enforced “ among them, and that the precepts of the gospel, as they un* “ derstand and interpret them, constitute, as they conceive, the * foundations of their faith and the rules of their practice”. As for their faith, it would seem from the volume which they have published, that it extends to unusual lengths ; and leads to what ethers, at once pronounce tobe absurdities; but this is not within our control: it is rightfully their own. But it is contended that according to the faith and principles and hsages of the society, which are considered as referred to in the covenant as a part of it, the covenant amounts to a contract never to marry, which public policy will not sanction. We have before observed it is not a perpetual one; of course,at most, if is a contract not to marry while they continue members of the society; but their faith does not require so much as this ; their principles condemn marriage in certain cases only ; that is, where it is contracted with — 122 — , carnal motives ; and not purely with a view of complying with the original command “increase and multiply.” It is true they do not believe that marriages are contracted (except in some solitary instances) without motives far less worthy and disinterested. As it regards those members of the society who are married ; though they may live separate, without cherishing the gentle affections, still - such- conduct violates no human law; and however lightly they may esteem the blessings of matrimony, their opinions do not lessen the legal obligations created by marriage. Surely they may agree to live in different houses and without any communication with each other. Contracts of separation bétween husband and wife are not unfrequent; neither are they illegal when made with third persons. This objection cannot avail, nor that which refers to the relation between father and son. Their principles require the circle of benevolence and affection to be enlarged; but not that parental or filial tenderness should be destroyed or lessened: We must not overlook the distinction between duties of perfect and imperfect obligation ; the neglect of the former is a violation of law, which will render the delinquent liable in a court of justice to damages, penalties or punishment ; but the performance of the latter is never the subject of legal coercion. A man may be punished for defrauding his neigh-bour ; but not for indulging feelings of unkindness towards him ; or, in the hour of sorrow, withholding from him the balm of sympathy, consolation and relief. Though we may disapprove of many of the sentiments of this society in respect to the subject of education and discipline, yet as they steadily inculcate purity of morals, such a society has a perfect right to claim, receive and enjoy the full blessings of legal protection. But, for the sake of the argument, let us suppose that the covenant or contract is illegal and void for the reasons which have been urged by the plaintiff’s counsel ; what then will be the legal consequence ? will the action then stand on any firmer ground ? Though in the present case, the plaintiff does not demand of the defendants the repayment of a sum of money paid to them, on the ground that they have no legal right to retain it yet his demand is in principle, the same thing ; it is a demand of — 123 — compensation for services rendered, on the ground that, as the contract was unlawful and void, the value of those services may be recovered; that is, if he had increased the funds of the society by a sum of money, instead of his personal labors and services, the right to recover back the money, or recover the value of those services in money must be settled by the same principles of law in both cases. Now, what are those principles ? Before stating them, let it be again observed that the jury have found that the plaintiff knowingly signed this covenant which we are now considering in the light of an illegal and void contract; and voluntarily joined this society and remained for seimral years a member, engaged with all the other members in all the transactions of it, and all of them in pari delicto for if the covenant is illegal and void, it is because the society who formed and signed it, is an unlawful society, and united for purposes which the Jaw condemns. “ If a wager be made on a boxing match, and on the event happening the winner receives the money, it cannot be recovered back by the loser ; for where one knowingly pays money upon a contract executed, which is in itself immoral and “ illegal, and where the parties are equally criminal, the rule is in pari delicto potior est conditio defendentis.''’ 2 Comyn on Contr. 120. Bull. N. P. 132. Cowp. 792. To same point also is the case of Howson v. Hancock 8 D. & E. 575. Lord Kenyon there says, “ there is no case to be found, W'here, wdien money "has berfn actually paid by one of two parties to the other on an "illegal contract, both being partícipes criminis, an action can be "maintained to recover it back again ; here the money was not "paid on an immoral, though on an illegal consideration, and "though the law would not have enforced the payment of it, yet, "having paid, it is not against conscience for the defendant to "retain it.” Lawrence J. adds "In Smith v. Bromly Lord Mansfield said that where both parties are equally criminal against "the general laws of public policy the,.rule is, potior est conditio "defendentis.” See Smith v. Bromly Doug. 696. So also in Engar & al. v. Fowler 3 East. 222, it was determined that an underwriter could not maintain an action against brokers to recover premiums of reassurances 'declared illegal by statute — 124 — Lord Ellenborough C. J. says, “We will not assist an illegal “ transaction in any respect; we leave the matter as we find it.” So, an action will not lie to recover back money deposited for the purpose of being paid to one for his interest in soliciting a pardon for a person under sentence of death. 3 Esp. 253. No implied promise arises out of an illegal transaction. Robertson v. Tyler 2 H. Bl. 379. See also Aubert v. Moor 2 Bos. & Pull. 371; and Mr. Dane, in his Abr. 1 Vol. 194, says,—“ And on the “ whole, the sound principle is, the law will not raise or imply “ any promise in aid of a transaction forbidden by the law of the “land.” With these authorities before us, it would seem impossible to sustain the present action, even allowing the covenant and the society, by whom and for whose use it was formed, to be of the reprehensible and illegal character which has been given them. On the whole, we are all of opinion that there is a total failure on the part of the plaintiff, and there must be Judgment on the verdict„