Appendix H: Incorporation of “the Church of Christ”

The writer is aware of numerous researchers who, in a modern day, have attempted to trace the whereabouts of the original incorporation entry because of its historical value. Through an introductory letter from Dr. Truman G. Madsen, Chairman of the Institute of Mormon Studies, Brigham Young University, the writer became personally acquainted with one of these gentlemen in September, 1969, President George H. Mortimer, Regional Representative of the Twelve for the Niagara Falls and New York Regions of the LDS Church, and a practicing attorney at law in New York City. Pres Mortimer has been interested in the prospects of locating this record for many years. Indicative of his long term interest is an excerpt from a letter which he sent to Dr. Madsen, August 31, 1969:

During the summer of 1959 our family spent our vacation trying to find out about this incorporation. On August 10 we went to the Town Hall [County Court House] in Waterloo, Seneca County, New York and asked to see the recorded certificates of incorporation of all the religious corporations organized in 1830 in that county. The clerk and I looked in the index and there was no entry that could possibly be our church. The next day we went to the Department of State, Division of Corporations, 164 State Street, Albany, N.Y., and asked if there were any records there of a certificate of incorporation in 1830 of a Church of Jesus Christ and was told there was none.¹

Similarly, the writer attempted to find the long sought incor ^[374] poration record of the LDS Church. With the assistance of Mr. John S. Genung, Trustee and Historian, Waterloo Library and Historical Society, a systematic examination of prospective repositories was made.

The law under which the LDS Church would have been legalized was “An Act to provide for the Incorporation of Religious Societies,” passed April 5, 1813. This act stipulated that certificates of incorporation be recorded with the county clerk. Sections I and III of that law specifically stated that in the process of organization a certificate must be executed. It further stated

. . . which certificate being duly acknowledged or proved by one or more of the subscribing witnesses, before the chancellor or one of the judges of the court of common pleas of the county, where such church or place of worship of such congregation shall be situated, shall be recorded by the clerk of such county in a book to be by him provided for that purpose . . . and the clerk of every county for recording every certificate of incorporation by virtue of this act, shall be entitled to seventy five cents, and no more.²

The incorporation certificate was designed to be a document initiated within the county and recorded at county level by the clerk of said county. The writer has found no evidence that such a certificate was required to be filed with the state offices at Albany, nor in the local township.

At Waterloo, New York, the Seneca County Clerk, Mr. Thomas B. Masten, Jr., allowed unlimited access to the materials deposited in his office. He specifically pointed out “Miscellaneous Record Books A and B.,” containing incorporation certificates for this early time period. ^[375] Under “Churches and Congregations,” Miscellaneous Record Book A, begins with the formation of the “First Presbyterian Church of Ovid, May 15, 1796,” and concludes with “Trustees of the First Presbyterian Church of Ovid, January 8, 1817.” Miscellaneous Record Book B, commences with the “First Presbyterian Church of Galen, Oct 8, 1817,” and continues its listings into the Twentieth Century. The following is a listing of the religious societies of record which were incorporated in Seneca County from October 8, 1817 to December 25, 1837:

If the incorporation certificate of “The Church of Christ” had been duly filled with the county clerk of Seneca County, it should have appeared in the above listing. Most contemporary religious societies which were formed in the same period were appropriately registered.

From this examination of the primary source, at least two possibilities become immediately apparent: First, the founders of the new organization met all the legal requirements and submitted their application for incorporation, but through some technicality or omission the certificate was never recorded in the appropriate record book, or second, the organizers made an attempt to meet the prerequisites of the law, but the initial press of business and the increasing opposition locally somehow stayed them from executing the document formally in a court of law. Whatever circumstance may have created the situation, the proper certificate is not currently recorded in the appropriate place.

A thorough scrutiny of the incorporation records and related documents in the main office of the county clerk, revealed nothing relative to the LDS Church. The writer was next allowed to make a careful examination of the records contained in a downstairs vault and in an adjoining room used for the storage of documents. Here again, the ^[377] desired record was not found. However, it should be noted that the vault did contain a ledger entitled, “Court of Common Pleas, 1827–1831.” As the Act of 1813 stipulated that a certificate of incorporation could be issued by “one of the judges of the court of common pleas,” the writer studied this record at length hoping to find an entry for the LDS Church incorporation, but it contained no such reference.

On August 18, 1970, Mr. Genung introduced the writer to Mrs. Thelma I. Sisson, Fayette Town Clerk (clerk of the township and not the community by that name). Mrs. Sisson allowed the removal and minute examination of every item in the Fayette town vault. Its contents revealed no incorporation records for any religious societies. This fact had been anticipated as such documents are regularly filed with the county and not the town. However, there was a desire to eliminate even the remotest possibilities.

Seneca County has an oddity in its governmental structure experienced by very few counties in the United States. It is a two shire county, that is, it has two county seats, one at Waterloo in the north and one at Ovid in the south. This is also referred to as the plan of “2 half shires” adopted in March 1822, by an act of the legislature.⁴ At the time the LDS Church was organized, both of these seats were operative on a “sharing” basis. Every six months, county records were shuttled back and forth by wagon depending on whose term of jurisdiction was then incumbent.^{5 [378]}

While examining the ledger in the Seneca County Courthouse entitled “Court of Common Pleas, 1827–1831,” previously referred to, the writer noted with interest that the Seneca County Court of Common Pleas met on an alternating basis between Waterloo and Ovid, New York, because of the two shire arrangement. On February 2, 1830, the court met at Waterloo. However, on May 11, 1830, it convened in Ovid, with Judges Luther F. Stevens, Levi Wheeler and Jonas Seeley presiding.⁶ Although not dependent upon a judge of the court of common pleas to validate their incorporation it is possible that the organizers of the LDS Church could have gone to Ovid, New York, 14.6 miles south of the Whitmer farm, to validate their certificate of incorporation, if they had chosen to do so.

Today, Waterloo has evolved as the primary site of Seneca County governmental operations. However, an office is still maintained at the old courthouse in Ovid, its principal officer being the Undersheriff. Mr. John S. Genung again made arrangements for the writer to meet Undersheriff Gerald B. Brewer at the courthouse in Ovid, August 18,1970. As with the other officials, Mr. Brewer opened his shelves for inspection. In a basement room there were a few old ledgers remaining, but they did not pertain to the incorporation of religious societies. Before leaving Ovid, the writer also visited the Ovid Public Library, but they had no early records of this nature in their repository. A similar inquiry had been made previously at the Waterloo Library and Historical Society, Waterloo, New York, but with no positive results.

Because of the numerous religious societies incorporated on a ^[379] local level in the respective counties where early segments of the LDS Church congregated, the writer also made an attempt to find an incorporation record for one of the branches. Byron C. Blazey, Ontario County Clerk, Canandaigua, New York; Leonard Schlee, Wayne County Clerk, Lyons, New York; John P. McGuire, Chenango County Clerk, Norwich, New York; and Howard Davis, Broome County Clerk, Binghamton, New York, all gave the writer access to their offices and storage facilities. In no instance was there a record of an incorporation proceeding for any LDS Church religious society found for the time period 1830–1831.

Despite the recitation of these successive failures, there are some positive aspects resulting from the search. These center in an examination of the actual legal requirements for incorporation in 1830, which examination gives a clear perspective of just what criteria the organizers would have had to meet on April 6, 1830. As previously indicated, the provision under which the LDS Church was organized was entitled, “An Act to Provide for the Incorporation of Religious Societies,” 1813. Section III, within that act is the section which is of primary importance to the organizational process from the standpoint of the LDS Church. In order to better understand its parts and the significance of the analysis to follow, by President George H. Mortimer, the content of Section III is stated herein.

III. And be it further enacted, That it shall be lawful for the male persons of full age, belonging to any other church, congregation or religious society, now or hereafter to be established in this state, and not already incorporated, to assemble at the church meeting house, or to the place where they statedly attend for divine worship, and, by plurality of voices, to elect any number of discreet persons of their church, congregation or society, not less than three, nor exceeding nine in number, as trustees, to take the charge of the estate and property belonging thereto, and to transact all affairs relative to the temporalities thereof; and that at such election, ^[380] every male person of full age, who has statedly worshipped with such church, congregation or society, and has formerly been considered as belonging thereto, shall be entitled to vote, and the said election shall be conducted as follows: The minister of such church congregation or society, or in case of his death or absence, one of the elders or deacons, church wardens or vestry men thereof, and for want of such officers, any other person being a member or stated hearer in such church, congregation or society, shall publicly notify the congregation of time when, and place where, the said election shall be held, at least fifteen days before the day of election; that the said notification shall be given for two successive sabbaths or days on which such church, congregation or society, shall stately meet for public worship, preceding the day of election; that on the said day of election, two of the elders or church wardens, and if there be no such officers, then two of the members of the said church, congregation or society, to be nominated by a majority of the members present, shall preside at such election, receive the votes of the electors, be the judges of the qualifications of such electors, and the officers, to return the names of the persons who, by plurality of voices, shall be elected to serve as trustees for the said church, congregation or society; and the said returning officers shall immediately thereafter certify, under their hands and seals, the names of the persons elected to serve as trustees for such church congregation or society, in which certificate the name or title by which the said trustees and their successors shall forever thereafter be called and known, shall be particularly mentioned and described; which said certificate, being proved or acknowledged as above directed, shall be recorded as aforesaid; and such trustees and their successors shall also thereupon, by virtue of this act, be a body corporate, by the name or title expressed in such certificate; and the clerk of every county for recording every certificate of incorporation by virtue of this act, shall be entitled to seventy-five cents, and no more.⁷

President George H. Mortimer, with his training as an attorney at law, in New York City, supplied the writer with a survey of the “New York Laws on Religious Corporations” from the earliest general law to the time of organization of the LDS Church. He has also digested the cardinal points of the law as they pertain specifically to Section III, above. His summary is as follows:

The earliest law in New York was passed in 1784 It is known ^[381] as Chapter 18 of the laws enacted by the seventh session of the legislature.

In 1788 an amendment was passed which is not of interest to us. In 1798, Chapter 87 of the twenty first session, a further amendment was made.

In 1795, an amendment was passed affecting only the Protesant Episcopal Church. In 1800, Chapter 49 of the twenty-third session, a further amendment was made.

In 1801 the previous laws were all repealed and a new act passed as Chapter 79 of the twenty-fourth session. In 1806 chapter 43 of the twenty-ninth session was passed. In 1808 chapter 105 of the thirty-first session was passed.

In 1812 the thirty-fifth session of the legislature passed Chapter 85.

In 1813 the thirty-sixth session of the legislature repealed all of the prior acts relating to the incorporation of religious societies and passed Chapter 60. This is the law which, with amendments now to be mentioned, was in force in 1830 when the Church was organized. I will comment on this later so far as it pertains to what would have been required to incorporate in New York in 1830 but at this point mention that the previous laws are of interest only as background for this law because all of them had been repealed by the legislature when chapter 60 was passed in 1813.

In 1814 an act known as Chapter I of the laws of the thirty-seventh session came into effect. It was actually an amendment to the law of 1801 and had passed the Senate on March 25, 1813 which was prior to the passage of the act which became chapter 60 of the law of the thirty-sixth session. The only section of this law which did not pertain to specific denominations is section VI. . . . This is not a serious problem to us in view of the fact that our question does not relate to the subject matter of this amendment.

The next amendment to the laws relating to incorporation of religious societies came in 1819 when the forty-second session passed an act known as Chapter 33. Sections I and II of this act relate to Protestant-Episcopal Churches only. Section III has to do only with the right of a religious corporation to take and hold real and personal property and therefore is not of particular interest to our question.

The next amendment to this religious incorporation law came in 1822 when the forty-fifth session passed an act known as Chapter 187. This is a specific act with respect to reformed Presbyterian Churches or Congregations and therefore has no relevance to the question we are concerned with.

The next amendment to the religious corporation law came in the forty-eighth session in 1825 when chapter 303 was passed. It also pertains to specific churches or congregations known as reformed Dutch Churches and therefore has no relevance to our problem.

The final amendment to the act prior to the date of April 6, 1830 came in the forty-ninth session of the legislature in 1826 when it passed chapter 47. This chapter has three sections. ^[382] The first two sections excused neglect or omission on the part of religious societies to comply with the provisions of the Act of 1813 with respect to appointing trustees and church officers and therefore has no relevance to our question. The third section gives qualified voters for trustees and church officers the right to set the date of the annual meeting in the succeeding year for the purpose of electing officers and makes provisions for what may be done in the event no such date is set or if the date set is not kept. This section also has no relation to our problem.

Referring now to Chapter 60 of the laws of New York passed by the thirty-sixth session, 1813 which was in force in 1830, we find that sections I and II pertain, respectively to the Protestant-Episcopal Church and the reformed Protestant Dutch Church and therefore have no relation to other churches. Section III is the important section which provides for the incorporation of any church, congregation or religious society other than the two for which provision is made in sections I and II. This section provides who shall be entitled to vote, the manner of giving notice for the meeting at which the incorporation is voted and specifies the number of trustees to be elected to take care of the property of the corporation.

Referring first to the people qualified to vote, every male person of full age who has either worshipped with the Church, congregation or society and has formerly been considered as belonging thereto is given the right to vote by this law. You will see that there is nothing requiring at least six people to be present and the only reference to numbers is to require two of the members of the Church, congregation or society to be nominated by a majority of the members present to preside at the election, receive the votes of electors and be judges of the qualifications of the electors.

With respect to the number of trustees, the law provided that there should be not less than three nor more than nine trustees elected. This would seem to require that there to at least three members of the church because the trustees are to be elected from discreet persons of the church, congregation or society.

One other aspect to section III of this law which is of interest to us is the provision that the two members chosen to preside at the incorporation meeting shall certify under the hands and seals the names of the persons elected to serve as trustees for the new church, the name or title by which the trustees and their successors shall forever thereafter be called and known, which I construe to mean the name of the church, and shall record the certificate after it has been properly approved or acknowledged. This section does not itself specify where it shall be recorded but only that it “shall be recorded as aforesaid.” Section I of the act specifies that the certificate for a Protestant Episcopal church that is being incorporated is to be “duly acknowledged or approved by one or more of the subscribing witnesses, before the chancellor or one of the judges of the Supreme Court, or one of the judges of the Court of ^[383] Common Pleas of the County, where such church or place of worship of such congregation shall be situated, shall be recorded by the clerk of such County in a book to be by him provided for that purpose.”

I construe this section III, therefore, to require that the certificate of any church be approved or acknowledged in this way and that it be recorded in the county where the incorporation took place and which has to be the place of regular worship for the church, congregation or society that is being incorporated.

Section III of the act also makes provisions that the clerk of every county shall be entitled to $0.75 and no more for recording each certificate of incorporation by virtue of this act.⁸

The writer would again like to emphasize that in a majority of the accounts referring to the organization of the LDS Church, the number six is stressed as the automatic number required by New York State Law to incorporate. Erastus Snow’s remarks in this regard are but an expression of many others having a similar concept. He stated:

Forty-three years ago to day the Church of Jesus Christ of Latter-day Saints was first organized, the organization then consisting of six persons—the Prophet Joseph Smith and five others, who, in obedience to the revelations and commandments of God assembled on the 6th day of April, 1830, for the purpose of organizing this Church.

At that time there existed in the State of New York a legal statute forbidding anybody to minister in spiritual things, except a regularly recognized minister, and which also provided, that any six believers had the right to assemble to organize a religious body. After inquiring of the Lord, and to enable him to minister lawfully, the Prophet Joseph was commanded to enter into an organization; it was therefore on the 6th of April, 1830, that this statute was complied with, and the Church became recognized by the laws of the State of New York.^{9 [384]}

However, as designated in Section III, six persons are acceptable, but in the terminology of that New York State Law, “any number of discreet persons of their church . . . not less than three, nor exceeding nine” can “transact all affairs relative to the temporalities thereof.”¹⁰ It appears that Joseph Smith arbitrarily selected six individuals to assist in meeting the requirements of the law.

In the absence of an actual document legally organizing the LDS Church, an indication of the form taken by an incorporation of a religious society at the time can be obtained from the certificate issued to the Methodist Episcopal Society in the village of Seneca Falls recorded February 3, 1829. Notice that the formation of the society took place in a private home, similar to the situation experienced at the Peter Whitmer, Sr., home:

At a meeting of male persons of full age belonging to the Methodist Episcopal Society held at the House of Benjamin Kenney in the Village of Seneca Falls, Town of Junius and county of Seneca on the 6th day of January 1829. for the purpose of organising [sic] and incorporating a society to be known by the name of the Seneca Falls Society of the Methodist Episcopal church. Public notice of said meeting having been given according to the requirements of the act of the Legislature of the State of New York Entitled “an act to provide for the incorporation of Religious Societies the Reverend John M. Odell and James Esse were nominated by a majority of the members present to preside at said meeting.”

Whereupon	Ansel Bascom	Were duly Elected Trustees
	Joseph Metcalf	of the Seneca Falls Society
	Stephen B. Gay	of the Methodist Episcopal
	Peter Marceleous	Church—
Given under our hands and seals this sixth day of January 1829— [385]
	John M. Odell
	James Essex

Seneca County on the 3rd day of February 1829 came John M. Odell and James Esse and acknowledged that they executed the within certificate let it Be Recorded

                    Luther F. Stevens first judge
                    Seneca County¹¹

It is doubtful that the original certificate of incorporation of the LDS Church will be found. Stanley I. Reynolds, one of Waterloo’s first “walking postmen” and long time genealogist in Waterloo, did not believe the incorporation record would be located for the reason that “the articles of incorporation of the church with the first signatures in 1831 [1830] have never been filed or recorded in this state.”¹² However, it is still possible that the elusive document is in existence and will be discovered in an obscure place. ^[386]