A MEMORIAL,
REMONSTRATING against a certain Act of the Legislature
of Kentucky, entitled “An Act to regulate civil proceedings a-
gainst certain communities having property in common”— and
declaring-That it shall and may be lawful to commence and pros-
ecute suits, obtain decrees and have execution against any of the com-
munities of people called Shakers, without naming or designating
the individuals, or serving process on them, otherwise than by firing
asubpºna on the doorof their meeting-house, &c. Approved Feb. ii.1828.
To the citizens of Kentucky in general, and in particular to the Legis-
lative and Executive departments of the state, the following MEMO-
RIAL is respectfully inscribed. *
By order of the several Communities called Shakers.
“Men, brethren and fathers; hear ye the defence, which we now
make unto you.” Paul.
It is well known, that at the present day, mankind are much
divided in their sentiments and opinions, particularly on the sub-
ject of religion;–that under our American system of government,
diversity of opinions is tolerated; that under this free toleration,
two general parties have been formed, in support of the different
systems of natural and revealed religion, and that these two prin-
cipal parties, subdivided into various sects, have, for many ages
excited great animosity among the nations of the earth: It is al-
so well known, that the constitution and common laws of our
country prohibit either party from oppressing the other by partial
laws or compulsive measures, and that in this respect, all parties
have had occasion to exult in their rights of freedom, being sub-
ject only to the equal and impartial laws of the land.
It may also be remembered that some years ago, a certain cel-
ebrated European” made his appearance in this country as an
avowed enemy to all religions founded on revelation, he having
got up a new plan of society, based on the combined tenets of
atheistical writers ancient and modern; that this new and formida-
ble system ofinfidelity, which threatened the overthrow of every
other system of civil and social policy, having been exhibited in the
capitol of the United States, and thereby obtaining an air of
popularity, came sweeping through the land like a tornado, cary-
*Ron ERT. Owen.
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ing with it a train of proselytes, till it reached the western ex-
tremity of the state of Indiana, formed what was called the New
Harmony society, and commenced hostilities with all other plans
of society, civil and sacred—that among the most active and
influential agents of this new establishment were two young men”
who left the Shakers, under a strong excitement of ambition a-
gainst the rulers and rules of their institution.
JWow be it known, that through the high handed influence of the
said Mew Harmony society, and particularly of its last mentioned
proselytes, the before mentioned Act of the legislature of this
state was obtained, for purposes repugnant to the constitution
and laws of the country and subversive of the social and civil
rights and privileges of this one particular Society called Sha-
kers: ' Therefore, against the said Act and every part thereof, its
design and intention, its sense and meaning, its application and in-
fluence and every thing in it and pertaining to it, the several com-
munities of people called Shakers, in this state, beg leave to re-
monstrate, and show—That the said Act was needless; originated
from maleyolence; is unprecedented and unconstitutional, conse-
quently, dangerous and pernicious. '
First. It will appear that an act to regulate civil proceedings
against thissociety in particular was needless, when it is consider-
ed that any legal ground of civil process, peculiar to this society,
has not been known to exist, prior to the passage of the said law.
The Society, which has existed in these United States for more than
half a century, had adopted and established those rules and reg-
ulations, in the management of their temporal concerns, that
brought them fully under the view of the law in every case that
could offer a just ground of action. To use the language of an
honorable court, in the State of Maine, in giving their opinion, in
a case, in which the society called Shakers were a party, “ The
sect with which the plaintiffs are connected have been for some
time known among us, and their peculiar tenets and modes of dis-
cipline have been embodied and settled, by their teachers, in reg-
ular, and among them, well established forms. Although once
persecuted, by the mistaken zeal of former-days, they are now per-
mitted, under more favorable auspices, to keep the peaceful ten-
or of their way, unmolested.—Like all other citizens they are a-
'menable to the laws, by which they are protected, and from obe-
dience to which, their seclusions afford them no immunity or ex-
emption.” . (see 3d Greenleaf. 243.) We are aware that the
necessity of a special act of assembly, authorising a special mode
of suit, in order to facilitate a direct approach of the society by
suit, and a speedy judicial decision on points of controversy, was
strongly urged to the legislature in support of the bill; which seem
edto take it for granted, that the whole Society could be legally
*J. & R. WHITEy.
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prosecuted in some other way; but that it ever was consistent with
any law of the land, to sue a whole society of Shakers, old and
young, male and female, white and black, in any mode or man-
ner whatever, remains yet to be proved. A party opposed to
the society determined to seek redress at law, “but (say they) we
have been told by our counsellors, that as the Society of Shakers
are a body without any Act of incorporation and as many of them
stand in a very singular relation to each other in consequence of
a form of covenant established among them, redress at law could
not easily be obtained, without first some provision being made,
by an act of your honorable body.” Thus in the very commence.
ment, it is given up that no existing mode of suit was competent
to arraign the whole Society or to operate upon them agreeable to
the views and wishes of the complainants; of course that the meas-
ure proposed was to be adopted as a last and desperate remedy.
Determined to seek redress at law; but no law to afford redress,
unless the legislature can make one to answer the purpose, which
law, forsooth, must incorporate the Society and invalidate the
said form of covenant. And here at the outset, we remark, that
nothing warranting such a measure can be found, in terms, ei-
ther in our own national constitution or in those of the several
states. Not a line, nor a word or syllable—not a hint can be
found referring to such a measure, as having ever been contem-
plated by their framers. The measure therefore, we contend, is
not only unprecedented but also unconstitutional.
What is a Constitution? In a Republic, it is that instrument
by which the community declare the manner and extent by which
their power and authority are delegated to their agents or rep-
resentatives. The moment the limit thus fixed is passed over, in
any case, by any department, its first step is a mere usurpation,
and may rightfully be resisted in any manner whatever. To ap-
ply these familar principles, if no express and no implicit recogni-
tion of the principles or mode of suit against a whole religious so-
ciety, held forth in said act, can be found in the constitution, it
follows that nosuch power was ever delegated; and what shall we
style its exercise? It is usurpation only, and can claim no obc-
dience. (See journal of law p. 138.) It has been strongly sug-
gested that we shrink from investigation, and artfully avoid the
scrutiny of legal justice, because we remonstrate against this Act,
and wish our rules and manners to be understood and respected in
their proper character. We do indeed shrink from obedience to
any law that would robus of our dearest rights. If a legislature
have no constitutional right to judge and settle cases of conscience,
in matters purely ecclesiastical, can they confer that right or au.
thority on a chancellor? Whence, then, the authority of a court to
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compel a whole community to answer a bill stuck up on their
meeting house door?
What is a community holding property in common but a cor-
poration? and what is a corporation, but an invisible body, which
the law declares “cannot manifest its intention by any personal actor
oral discourse? It cannot perform personal duties, its existence being
only ideal.”I B.478. If, then, the said act makes no legal provis-
ion for defence, but admits as defendants any who will swear that
they have been nominated by this mouthless body, were it not that
the Society is duly organized and the defendants of its rights and
privileges legally established, it is easy to see, that the provisions
of this act, by misconstruction and the influence of prejudice,
would soon be converted into a machine of barefaced persecution
and legalized robbery. In another point of view we humbly con-
tend that this act is unconstitutional. We remark that not only
in its design, as aforesaid, but also in its construction and applica-
tion, it impairs the obligation of contracts previously made. If
the aforesaid complainants were, confessedly, debarred from any
ground of action, by reason of a special contract with the agents of
the Society, both the design and construction of the said act must
be, to set aside the proper authorities of the agency, nullify the
contract, constitute the society a corporation or firm, without their
application or consent, declare the members all interested, of
course, incompetent witnesses for each other in any case; and
thus lay a foundation for new and retrospective claims, and a new
and otherwise illegal mode of attempting to support them.—
Here this act is met by an express veto from the supreme authori-
ties of the land. “No state shall pass any law impairing the obli-
gation of contracts” (Fed. Con.) “No law impairing contracts
shall be made.” (Ky. Con.)
Further, we think it may be justly contended, that the said act
is expost facto, and unconstitutional on that ground; for although it
might be said to have a correct operation on facts already past, to
which it had no intentional allusion, yet being passed with a view
to cases of controversy then existing, must give it a feature of un-
constitutionality which we think cannot be reasonably disputed.
Since the passage of the said Act, suit after suit has been institu-
ted against the Society and its members, greatly to their injury,
all which proceedings, arising from retrospective causes, have been
wholly hased on the principles and peculiar provisions of said act.
How will this comport with the following declarations? “No ex-
post facto law shall be made.”—“Retrospective laws are highly
injurious, oppressive and unjust, no such laws, therefore, shall be
made, either for the decision of civil causes, or the punishment of
offences. (Ky. Con. N. H. Bill of rights.)
Moreover it is worthy of remark, that the said act bears all the
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features of partiality, discrimination and preference, and in that view
is repugnant to the constitution of the State, which declares;–
That all free men, when they form a compact, are equal—that no pre-
ference shall ever be given, by law, to any religious societies or modes
of worship—that the civil rights, privileges or capacities of any citizen
shall in no wise be diminished or enlarged on account of his religion.
—that no human authority ought, in any case whatever, to control or
interfere with the rights of conscience.
Now we ask the question:-What is there, in the said act, that
would not, on the principle of equal rights, be applicable to other
religiousand social communities? It is true we live adjacent to
each other, in our several families: so do others. We have also
an interest consecrated to social, sacred and charitable purposes,
held & managed by Trustees; & are we the only associated com-
munity or society in the land who have property so situated? and
can any reason be assigned why the property of this whole society,
consecrated or otherwise, should be subjected to seizure on account
of judgments and executions obtained against an individual mem.
ber, unless it be on account of our religion. If such a law was in-
tended to have a salutary influence on Shakers or their creditors,
why not extend its blessings and benefits to other debtors and
creditors similarly situated, and include, under this benevolent
Act, every company, community or fraternity having property in
common 2 Why restrict it to the Shakers by name? The little
property a few Shakers have acquired is a mere peppercorn com-
pared with the millions in banks and society funds, held in trust for
social and religious purposes. Strike out the name Shaker from:
this act, and let the good service of process extend in manner and
form aforesaid to all societies, companies and corporations; let eve-
ry mouth be stopped that has any interest in the property at stake,
and judge whether the Shakers would be the first to remonstrate.
But, on the other hand, let the Shakers renounce their religious
faith and worship, and who does not know that such a partial law
would be spurned by every sensible citizen in the state. Whence
then this partiality? Not in the sound reason of man; not in the
original principles of our free government, but from the heat of
passion excited by party-zeal and self-interest, which will ever
stand reproved by the good sense and cool judgment of our vener-
able fathers as long as the constitution of the United States and of
this State are respected.
Now if any regard is to be paid to the foregoing remarks it will
follow that the said Actis to be regarded as dangerous, being a
very sly and artful attack on the rights and privileges of a reli-
gious institution. For statesmen to assume control over church
matters or for ecclesiastics to attempt to incorporate their theol-
ogy with the laws of the land might be deemed equally danger-
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ous in any commonwealth. When civil and ecclesiastical mat-
ters are blended together in one department, the sensible histori-
an can be at no loss to estimate the consequences. From what
other source originated those unnatural persecutions and bloody
wars which for ages deluged the Christian world with human gore,'
but from the now exploded amalgamation of church and state mat-
ters. Hence says Dr. Robertson, “There is not an evil that can
blast society which is not contained in this fatal coalition; out of
these two absolute powers in one kingdom, rise new crimes, new
claims, new disputes, a new order of men to investigate them,
new canons of law, new punishments, a new world all in arms, ani-
mated with a fury that never slept, and never cooled, till one
party subdued the other into silence.”
Now whether the said act is to be considered the more danger-
ous as springing from European influence, we submit to the watch-
ful guardians of American principles. It seems, however, a lit-
tle queer that this said legislative act should bear so striking an
analogy to the edicts of yore, so famous for proscribing reputed
heretics, by wholesale, whder the name or description, by which
they were commonly known, without naming or designating the in-
dividuals. If the names and descriptions of Jews, Christians,
Catholics, Protestants, Free Masons, Friend Quakers, &c. have
all, in their turn, exposed harmless citizens to privations and per-
secutions abhorrent to the good sense and generous feelings of the '
present age; must it not disgust the feelings of any good Ken-
tucky statesman, to see the statute book of the state blotted even
with the name Shaker, as an object of judicial privations, espe-
cially not knowing whose turn may come next.
We object to the said act, as pernicious in its effects, both on the
public mind and on the deserved credit of our Society, where-
by our statements public and private, verbal and printed are
legally contradicted. Are we the only people to be discredited
in the declaration of our principles and rules? And must the pub-
lic be compelled by law to pursue a course of conduct toward us
dictated by our avowed enemies. Further, the effects of said act
are peculiarly pernicious, in opening the floodgates of litigation,
and thereby disturbing the peace and deranging the pursuits of a re-
tired and inoffensive people, unnaturally constituted defendants in
every petty suit atlaw; who are better known by theirsimplicity of
manners, their civility, charity and hospitality and whose industry
and economy, if equally protected, might be deemed a public
benefit in any civil community. Finally, the said act is deemed
so pernicious and so subversive of our sacred and social rights,
that its increasing consequences if not checked, must in the issue
compel those certain communities to withdraw from under its ju-
risdiction, or sacrifice at the shrine of despotism, those sacred
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rights of conscience and rules of social harmony which are toler.
ated and protected in every other State in the union where any
of those communities is located.
Thus we have given a brief statement of facts and evidence,
and the impressions we feel relative to the said law, resting our
appeal on the justice and good sense of the Honorable, the Legis-
lature and executive authorities of the land. Few in number as
we may appear, in comparison with other churches and civil as-
sociations and however singular we may be in our faith and mode
of worship, we have neither withdrawn our support from the civ-
il government nor relinquished our equal claims to its protection.
And however incorporated orassociated as a spiritual body, oursey.
eral communities are composed of individuals claiming individual
rights as citizens, freemenand lawful heirs to the blessings of life, lib-
erty and the pursuit of happiness, purchased by the blood ofour fore-,
fathers and guaranteed to all the citizens of this freestate. Devoted
as we are to a life of self denial, honest industry and mental im-
provement, out dependence for equal justice, is neither on the
terror of arms, nor the charms of high sounding arguments, but
on the all powerful obligation of that oath, by which the sacred
honor of civil rulers is pledged to keep inviolate the grand basis
of all our liberties. Shielded by this most weighty of all considera-
tions, we venture to approach the political temple of the state
and to touch the sceptre of Legislative power; fully believing
that the honor of this far-famed republic and particularly of this
professedly liberal state, modestly invites her representatives to a
reconsideration and final disposal of the aforesaid singular stat-
ute—and that on a fair and impartial developement of the sub-
ject, the united wisdom of an enlightened and honorable legis-
lature will concur in putting a stop to the needless, malicious and
vexatious proceedings of our enemies, by the generous grant of
equal laws and equal protection. In correspondence to the said.
Act your Memorialists may be recognized by their common names,
viz: ſº PLEASANT HILL, SouTH UNIon.
Officially represented by their responsible Agents,
JOHN R. BRYANT,
ELI McLEAN.
POSTSCRIPT.
IN order to show, that we do not rely, wholly, on our own views of
the subject, we offer an extract from the argument of counsel, in a
cause, lately tried, in the circuit court of Logan county; in which the
constitutionality of the said Act became an important question: —To
which is added a brief extract from the opinion of the court.
“One great object of civil government is equal rights and equal pri.
vileges: and the constitution prohibits the enactment of laws, which
are unequal in their operations. I say then, that any statute which
bears unequally is void, for its unconstitutionality. We will now show
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that this law is unequal. Take it at its front; take it at its very enacts
ing clause, and this fact is evident. I have suggested this, because I
knew the dilemma in which we are placed. In a civil point of view
sir, without our approbation, we have been made a corporation, and
the recesses of devotion have been invaded by the officers of justice.
Again, sir, in a civil point of view, we have been made a copartner,
ship, and we are to be sued as copartners. Sir, the law is partial; it has
a baleful influence on this community; but not one single benefit does
it confer. Wherefore the necessity of this? Look into this town, sir,
here we will find copartners established for the purposes of tradč, and
holding property in common. Then, sir, gentlemen say that the whole
society should be made liable for a debt contracted by a single individ-
ual. But why are the Shakers singled out for the application of this
rule. If the Sherifſ were to read the writ at a store house door, would
that be a good service upon the whole firm? Would he attempt to do
so? Surely not. But the Legislature have said, this shall constitute a
good service against the Shakers. Is not the law partial here, sir! Sir,
it is well known, that we have Methodists, Baptists and Presbyterians
among us. Have the Legislature placed them under the same restric-
tions! Oh no!! Then, sir, in the name of all that is sacred, why has
the bann of legislative proscription fallen upon this peaceable and de-
fenceless community? Take it in a religious point of view, sir, and
what do we gee? The Shakers are only subject to this statute. Mark,
sir, the worås of the statute. It must be against some of the communi-
ties called Shakers. Then, sir, I ask, if the gentlemen with all their in-
genuity, are able to show how it does not interfere with their religion,
Sir, it is a blot on the honor of my country! By what character of le-
gislation are my clients arraigned before the tribunals of their country,
to answer for their religious faith? This is a species of legislation which
belongs not to earth.-I say sir, and I speak it with humility, it is not
equal—it is partial in its bearings.”
The following is, in substance, extracted from the opinion of the court;
“Whenever a legislative act involves certain great natural rights,
which are the birthright of every citizen; if it impugn that right, it is
a violation of the constitution;–It is contended, that this law is uncon-
stitutional in another point of view. This community of Shakers have no
!. existence; and it seems evident that they have no legal existence,
ecause not recognized by some law.—I have, then, come to the con-
clusion that if the society have no legal existence, they can neither sug
nor be sued; both of which could be done, if they had.
All laws, to be constitutional, must be equal, and to be equal, there
must be a mutual reciprocity; Therefore, waiving all other objections :
and difficulties, there is no reciprocity in this Act and consequently
it is uneonstitutional; because, if the whole Society can be sued under
this Act, it ought also to enable them to sue. I am, therefore, fully
persuaded, that for want of reciprocity this law is unequal, and there-
fore unconstitutional,”
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PRINTED AT THE Union Orficº, HARRoosburg, KENTUCKY.