Attorney-General ex rel. Abbot v. Town of Dublin

38 N.H. 459

• Court: Supreme Court of New Hampshire
• Decided: July 15, 1859
• Status: Published

Opinion

Perley, C. J.

The income of the fund in question was paid by the trustees to the Rev. Levi W. Leonard while he preached in the First Congregational Society, and has been paid to the Rev. William F. Bridge since he was settled as colleague with Mr. Leonard. This, it is alleged in the bill and information, is a misapplication of the fund, and a violation of the trust, because Mr. Leonard and Mr. Bridge are not, and have not been, ministers of the Congregational persuasion, within the meaning of those terms as used in the will of Mr. Sprague. The ground is taken that, though the First Congregational Church and Society may be Congregational in form, and though Mr. Leonard and Mr. Bridge may claim to be of the Congregational persuasion, and may have been regularly ordained as such, yet, on account of the doctrines and theological opinions which they hold and teach, they are not ministers of the Congregational persuasion, in the sense of those terms as used in the will.

The bill states that Mr. Leonard and Mr. Bridge are not ministers of the Congregational persuasion, but of the Unitarian persuasion; that the doctrines of the Congregational persuasion are substantially those set forth in the Assembly’s Catechism ; particularly the doctrines of the Holy Trinity, of native total depravity, of vicarious atonement by Jesus Christ, of a supernatural regeneration by the Holy Spirit, of the eternal punishment of the wicked, of the full inspiration and binding authority of the Holy Scriptures-; that some or all of these doctrines are rejected by Mr. Leonard and Mr. Bridge, and by the church and society with which they are connected.

The answers of the defendants are the only evidence before the court that can be relied on to show the opinions held by Mr. Leonard and Mr. Bridge, or by the church and society. We are not able to perceive any difference, that can affect the case, between the opinions held by Mr.-Bridge and those held by Mr. Leonard; and the complainants do not, either in the bill or in argument, rely on any such difference, nor contend that, since the first appropriation of the fund, in 1820, there has been any change, that is mateiial to be considered, in the opinions of the ministers, or of the church and society.

The first answer’s were excepted to, and further answers filed. The explanation given in the answers, of the religious opinions held and taught by Mr. Leonard and Mr. Bridge, runs into a good deal of length. They answer very fully and minutely as to their own religious opinions, and set out the church covenants in use by them respectively. These covenants are alike, with some variations, which, so far as the court can undertake to judge of such a question, are merely verbal. The defendants also set out in their answers a church covenant, which they say they are informed and believe is a true copy of one in the hand-writing of Mr. Sprague, and which was in use when Mr. Sprague was minister.

The covenant used by Mr. Bridge is in the following terms:

“Apprehending it to be your duty to niake a public profession of the Holy Christian Beligion, and being desirous to unite yourself with the church of-Christ in this place, you do this day avouch the Loi’d to be your God, yielding yourself up to him to be his servant, and choosing him to be your portion forever. You give up yourself unto the God whose name alone is Jehovah, to walk in his ways, to keep his commandments, and to hearken unto his voice, declaring your firm assent unto the truths, and your hearty consent unto the terms of the gospel.

“You accept of Jesus Christ in all his glorious offices, prophetical, priestly and kingly, and depend on him in the way which he hath prescribed, for instruction, pardon and eternal life. You profess your serious resolution to deny, as the grace of God teaches, all ungodliness and worldly lusts'; to live soberly, righteously and godly in this present world, and to endeavor that your conversation may be such as becomes and adorns the gospel. You promise, by the help of God’s grace, to walk in all the ways of holy communion, as joint heir in the family of Christ; to keep the faith, and observe the order of the gospel; cheei’fully to support and conscientiously to attend the public worship of God, in all the instituted duties thereof, and to submit to the discipline of his kingdom.

“ AH'this you do in the presence and fear of God, with a deep sense of your unw.orthiness to be admitted into covenant with him, and to enjoy the privileges of the church evangelical, and of your insufficiency to perform the duties of it without his gracious assistance; and you rely on and pray to the God of grace, who brought again from the dead our Lord Jesus Christ, that great Shepherd of the sheep,' that through the blood of the everlasting covenant he would make you perfect in every good work to do his will, working in you that which is well pleasing in his sight, through Jesus Christ.

“ Now, therefore, in the presence of God, whose eye is over all, and in the name of Jesus Christ, his well beloved Son, I declare you to be a member,” &c.

Mr. Bridge says in his answers that he believes in the Father, the Son, and the Iioly Ghost, one in purpose and design, but he does not believe them to be, in the words of the Catechism, one in substance, equal in power and glory; that he believes in the divinity of Jesus Christ in the sense that he is of a divine nature, but as to the supreme divinity of Jesus Christ he does not know that he understands what is meant by it, but he does not believe in it in any sense in which he can understand the terms ; that he believes in the personality of the Holy Ghost; in the depravity of men, but not in the native and total depravity of the entire race of men; in the atonement, in the sense of reconciliation by Jesus Christ, not in the vicarious atonement by Jesus Christ; in the regeneration by the Holy Ghost, but cannot understand how the term supernatural can in any sense be applied to it; in the future punishment of the wicked, and those who die in impenitence, but not in eternal punishment; that he does not believe that Christ offered himself up a sacrifice to satisfy divine justice, but does believe that Christ offered himself a sacrifice to reconcile men to God ; that he believes the scriptures of the Old and New Testament contain a divine revelation, given by inspiration of God, and that they contain a perfect and the only rule of faith and practice, and .in their binding authority, and that in this sense he believes in the full inspiration of the Holy Scriptures, but in no other sense in their full inspiration; that he does not believe in all the doctrines contained in the Catechism; that he rejects the doctrines of election, of predestination, of the perseverance of the saints, and of justification, as they are set forth in the Catechism.

Though not formally admitted by the answers, it is conceded in argument that the defendants, Leonard and Bridge, do not belong to the Trinitarian or orthodox division of those 'who claim to be Congregatioualists, but to the Unitarian division. As, however, we understand that the general term Unitarian embraces a considerable extent and diversity of religious doctrine, we have thought it necessary to look into the expositions, which the answers give, of the particular opinions held by Mr. Leonard and Mr. Bridge. The question on this part of the case is, whether these opinions of Mr. Leonard and Mr. Bridge are such as exclude them from the Congregational persuasion, and from being beneficiaries under the will of Mr. Sprague.

The donor of a public charity has the right to dispose of his gift to any use that is not illegal. In this State all divisions and sects of the Christian religioh stand before the law, so far as the present question is concerned, on a footing of perfect equality. The founder of this charity had the legal right to limit the application of his bounty to the support of Trinitarian or of Unitarian doctrines ; or to leave it indifferently, to be applied by the trustees to the support of either or both ; and if a fund is given for the support of a particular religious doctrine, or of a certain system of religious doctrines, it would be the duty of this court, on a proper application, to see that the trust was executed according to the intention of the donor, provided that 1ns intention was expressed so plainly that it could be legally ascertained.

"When the intentions of the donor as to the religious opinions which lie means shall be supported, are expressed in general terms, and the disputed construction of those terms depends on an examination of religious doctrines, and the history of theological opinion and controversy, the inquiries upon which the court are obliged to entelare of an unusual and embarrassing character. "What is theologically true in religion it is agreed on all hands that the court are not competent to decide; nor have they power to determine -what is really and intrinsically substantial and essential in matters of doctrine. The difficulty of considering, in legal tribunals, questions which depend on such inquiries, has led courts to act upon the rule that they will not interfere with the application which a trustee has made of a fund given to a religious use, upon the ground that the donor intended to limit the application of the fund to the support of different theological opinions, unless the intention to exclude the opinions to the support of which the fund has been applied, has been plainly expressed by the donor. Courts of law-are, by their habits and constitution, ill fitted for the investigation of such questions; and it will not be supposed that the founder of a religious charity intended the trustee whom he selected to administer his charity should be called to account in the legal tribunals for a misapplication of the funds to the support of religious opinions different from those intended, unless he has used appropriate and explicit terms, excluding the doctrines to which the fund has been applied.

When the terms used in the instrument creating the trust are broad enough, in the most extended sense that can be given to them upon, .the common principles of interpretation, to include the religious opinions in question, it will be inferred that the intention was to leave it in the discretion of the trustee to apply the fund for the support of those opinions. If the donor intended to insist on a more limited application of his charity, it will be supposed that he would not have left' his intention to be gathered by a narrowed construction of general and doubtful terms on an appeal to courts of law; especially if there were other appropriate terms in- common use, by which his intention might have been placed beyond doubt or cavil.

This rule for construing the language used by the founder of a religious charity to designate the doctrines to be supported, is recognized in numerous cases, and, so far as I am informed, denied in none. It was laid down by Walworth, Chancellor, in. Miller v. Gable, 10 Paige 627; and Gardner, President, says in the same case, 2 Denio 548,1 cordially agree with the chancellor in opinion that it must be a plain and palpable abuse of a trust which will induce a court of equity to interfere respecting a controversy growing out of a difference in religious and sectarian tenets.” In The Attorney-General v. The Meeting-house in Federal Street, 3 Gray 58, the rule is thus stated by Shaw, C. J.,: “An owner of property .may dispose of it in trust to maintain and inculcate any doctrines of Christianity clearly and specially designated; but he must do it in terms so clear as to leave no doubt of his intention.” The remarks of Walworth, Chancellor, in the Baptist Church v. Witherell, 3 Paige 296; of Lord Eldon, in Attorney-General v. Pearson, 3 Merivale 402, and of Maulé, J., in his opinion given to the Lords, in Shore v. Wilson, 9 Cl. & Fin. 499, bear upon the same point.

The town of Dublin were intrusted by the will of Mr. Sprague with the management and appropriation of this charitable fund. The first application of the fund was made in 1820 to the support of religion in the First Congregational Society, by paying the annual income to Mr. Leonard, the minister of that society. From that time until the commencement of the present suit, the trustees, without objection from any quarter, applied the income in the same way. It is not stated in the bill, nor do we understand it to be maintained in argument, that since the first appropriation there has been any change in the religious opinions of the society, or of the ministers who received the income, which has afforded any new ground for the interference of the court. The position of the complainants is that the fund was originally misapplied, and during all this time has continued to be misapplied, to the support of religious doctrines which the donor intended to exclude; and on such grounds the court are asked to interfere and disturb an application, made in the outset by the trustees whom the donor selected to take charge of his charity, and continued and acquiesced in for more than thirty-five years. No length of time can furnish a legal justification for the abuse of such a trust ;• but when a question arises as to the contemporaneous meaning of the terms used in an ancient instrument, early and long continued usage has a controlling weight; and in this case the burden rests on the complainants to show, in a clear and satisfactory way, that the religious opinions to the support of which the fund was thus early and continually applied by the original trustees,'were intended by the donor to be excluded from the benefits of his charity.

Mr. Sprague’s bequest is in the following terms: “I give to the town of Dublin the sum of five thousand dollars, to he kept at interest by said town forever, for the sole purpose of supporting the Christian religion in the Congregational Society, so called, in said town; the interest thereof to be paid quarter-yearly to the minister of the Congregational persuasion, who shall be regularly ordained and statedly preach in said society.”

The minister to whom the interest of the fund is payable must be of the “Congregational persuasion.” Mr. Leonard and Mr. Bridge profess to be, and claim to be, ministers of that persuasion. For the present we will assume that they have been regularly ordained, according to the usages of that denomination. There is no complaint that they have not in succession regularly preached in the First Congregational Society. Are their religious opinions such as exclude them from that denomination, and deprive them of the right to receive the income of this fund, though otherwise qualified^ This has been treated by the counsel and regarded by the court as the main question in the cause.

Ia the first place, taking the terms, “ minister of the Congregational persuasion,” as they stand on the face of the will, without looking to surrounding circumstances, or considering extrinsic evidence to discover whether they were used by the testator in any unusual or peculiar sense : Were they broad enough, in their general and common acceptation, to include such opinions as are held by the defendants, Leonard and Bridge ?

The case has obliged us to enter somewhat upon historical and theological inquiries, with which our habitual studies and pursuits have not made us familiar, and which we would have willingly avoided; inasmuch as, with our best diligence, and all the aid we have received from the laudable industry of the counsel on both sides, our investigations of a subject so difficult and so extensive as the history of religious opinions in New-England, must necessarily be far less thorough and satisfactory than.we could have desired.

Witnesses have been examined, who say that they have made the doctrines and history of the Congregational denomination a particular study; and their opinions, derived from the study of books and treatises on the subject, have been offered, to show the general meaning of the terms, minister of the Congregational persuasion. I think such evidence is not competent. We are under obligation to these witnesses for the assistance they have given us, by referring to the authorities on which their opinions are founded. We have used their testimony this way as we should the citation of authorities by counsel; but the general meaning of the terms, Congregational minister, Congregational church, Congregational denomination, and Congregational persuasion, is not matter of fact, to be proved by the testimony of witnesses, but matter of law, to be determined by the court. They are not terms of art, used only in some particular trade or business, and understood by those only who are engaged in that trade or business, but general terms, in common use by all people, to designate a well known denomination of Christians, whenever there is occasion to speak of them. The evidence is not offered to show that the terms are or were used by any particular religious sect or party in a peculiar sense, different from their general meaning; nor to show that they have a peculiar local meaning, confined to some particular district of country. The general meaning of the term, “ minister of the Congregational persuasion,” used in the will, whether it is to be gathered from the history of former times, from common usage at this time, or the authority of books which treat upon the subject, the court must take the responsibility of deciding as matter of law. No lawyer would think of asking for an issue to try the question as matter of fact.

The authorities appear to be quite decisive against the admissibility of such -evidence. In the Attorney-General v. Drummond, 1 Connor & Lawson 264, Sugden, then Irish Chancellor, said he objected that in Shrove v. Wilson the court below had acted upon evidence to show in what sense Lady Hewley had used particular words and phrases; and then proceeds to say, “ I shall admit, or, if not tendered, I shall seek myself, in the writings of the period, in historical records, acts of parliament, and writings of persons of different persuasions at the date of the deed, for all helps to tell me what was the meaning of the words used. In Shrove v. Wilson, 9 Cl. & Fin. 499, seven of the commonflaw judges attended the House of Lords, and each gave his separate opinion. Tyndal, C. J., said, on this point, “ The court has a right to inform itself, and is to aim, if possible, to learn what was the acknowledged and received sense and meaning which those expressions bore at the time Lady Hewley lived, and as near as may be at the time of the execution of the deed; and all extrinsic evidence calculated to throw light on the meaning of those words is clearly admissible. Of that description are public records and documents, throwing light upon the religious history of the times, the language of the statute books, and enactments relating to the state and condition of the church and the religious sects then known in England, contemporary history, contemporary treatises, and tracts upon the religious tenets held by the different religious sects, the works of men of acknowledged weight and eminence in their respective persuasions, and published and circulated at that period, and the early and contemporaneous application of the funds ' of the charity itself. But as the evidence which I have justi described is evidence which must be presumed to be in j the mind of the court or judge, it is evidence which they! furnish to themselves by reading, research and reflection ; - not that which they receive from the mouth of witnesses ; and on this account I think all the extrinsic evidence which was actually given in the cause, for the purpose of determining who were entitled, under the terms, ‘ godly preachers of Christ’s holy gospel,’ and the Other expressions used in the deed, was clearly inadmissible.” In this opinion the other six judges concurrecT, except, perhaps, Mr. Justice Williams, who said, in general terms, without any particular explanation of his views on this point, that he thought, for certain purposes, the Lords might consider all the evidence in the cause. Ld. Campbell appears to have been of the same opinion, who said, in Drummond v. The Attorney-General, that much incompetent evidence was admitted in Lady Hewley’s case. To the same point are Miller v. Gable, 2 Denio 521, and Kniskern v. The Churches of St. John and St. Peter, 1 Sanf. Ch. 439.

We are of opinion that the general meaning of the’ terms used in this will, whether it depends on existing or former usage, must be determined by the court as matter of law, without aid from the testimony of witnesses to their opinions; and that, to ascertain the meaning, we may resort to history, and works and treatises of aeknowledged authority, which have been brought to our notice in i the arguments of counsel, and by the testimony of witnesses, or which we have met with in the course of our own inquiries.

Looking, then, to the history of the denomination, what was the distinguishing principle with -which Congregationalists commenced as a religious sect, and upon which they separated from other denominations ?

The term Congregationalist, as used to designate a religious sect, is not unknown in England ; but in England, as I understand it, Congregationalists and Independents are now, and always have been, one and the same denomination ; and the two terms are there used indifferently, to signify the same sect and the same system of ecclesiastical polity. And in this country there was not formerly, if there is at this day, any religious sect distinct from Congregationalists, known by the name of Independents. At the time of the first emigration to New-England the colonists were congregational and independent in their opinions, but I do not find that either of those terms had been then assumed as the common designation of a religious party. Soon afterward, however — certainly as early as 1640 — the churches in New-England were denominated Congregational, and were never commonly known, so far as I can learn, by the name of Independents. On the other hand, the party in England which had agreed in_ religious views with the New-England colonists, about the same time began to be known by the name of Independents. It would seem that the Independents in England regarded the Congregationalists of this country as belonging to the same religious denomination with themselves. In 1645, Sir Henry Yane, who had resided in this country, and been Governor of Massachusetts, evidently considered the Independents in old England and the Congregationalists of this country as brethren of the same religious party. In a letter written that year to Governor "Winthrop he warns the people of Massachusetts against the proscriptive policy which they had adopted in religious matters, and expresses his apprehension that the example might be followed in England against their brethren there, by the Presbyterians, who were then in the ascendency.

The historical fact I take to be beyond question, that Congregationalists and Independents were in their origin the same religious sect; that they sprung in the commencement from the same source, and stalled with the same leading and distinguishing principle, to wit, that each church and congregation were independent of all others. It was upon this fundamental principle of church polity and discipline that Congregationalists separated from Presbyterians and Episcopalians, and formed therm selves into a new and distinct denomination, and not on account of any difference in matters of faith and doctrine; for in doctrine they agreed substantially with other Protestants. They denied the authority of presbyteries and assemblies, of bishops and councils, and all other ecclesiastical judicatories and associations to dictate any uniform system of doctrine or discipline. They held that the Scriptures were the only standard and test of religious truth; that no church was bound by any general creed or confession of faith, which might be set forth as an exposition of the doctrines taught in the Scriptures ; that it was the right and duty of each church and of each individual to resort directly to the Scriptures as the source of divine truth; that each church was at liberty to settle its own articles of belief, provided they were founded on the Scriptures, and acknowledged Christ as head and master.

The remarkable and often quoted passage from John Pobinson’s discourse, preached to the Plymouth colonists on their embarkation for the New World, may he supposed to set forth what was then the leading principle of the denomination, and shows that they did not then regard their religious opinions as fixed and unchangeable, but looked for new developments of divine truth from the study of the Scriptures. And Robinson says elsewhere, that “ any competent number of Christians, who witness a good profession, may covenant with each other, and become a Christian church; that no church has a right to control another with reference to its individual concerns, except in an advisory manner.” In the first years of the settlement in this country, churches acted on this theory of entire independence in the churches. In 1629, Skelton was chosen and ordained pastor, and Higginson, teacher, by the church in Salem, without the aid or advice of any other church or minister. 1 Felt 114. So the church in Dedham, in 1639, asserted their right to ordain their own minister, unassisted by any council from other churches, and ordained him accordingly, after inquiring of Governor Winthrop whether a recent ordinance on the subject was intended to deprive the churches of that liberty. John Cotton, as late as 1640, said : “Ve have reason to thank God that we desire not to be accounted Catholics or Hierarchs, nor stand members of a diocesan, or provincial, or national church, but bear witness against them all; that he hath given us churches and Congregational assemblies, by his covenant, to worship him in all his holy ordinances; that he hath given us to look for no laws but his word ; no rules nor forms of worship but such as he hath set down in his word; no platform, of doctrines, but such as are held forth in the word of the prophets and apostles.”

Thomas Hooker’s book, entitled “A Survey of the Sum of Church Discipline,” published in 1648, after his death, was written after the opinions of the colonists in this country had received considerable modifications ; but still it recognizes the original Congregational principle of independence in the churches. According to that work, to be a member of one Congregational church did not make a man a member of any other church, or give him a right of fellowship with any other church; 1 Hooker 64; and one church had no power or jurisdiction over another. 1 Hooker 65. He says that “ though there was a general agreement in church covenants in some things which they held in common, there were yet specific differences, which made a real difference between this church and that1 Hooker 66 ; and that each church had a right to insist on these specific differences, and to exclude from membership for want of conformity in them. Ibid. That is to say, one church might differ from another in matters of faith, so important and substantial, in the opinion of those interested, as to exclude from fellowship, and there is no intimation that either church would be denied the rights and character, or the name of a Congregational church, iHe says: “The testimony of any church of Christ ought to be valued according to the worth of it, and received with all due respect as the spouse of Christ; yet because the churches may decline in regard of their practice, and walk at a greater breadth of liberty, either in respect of their actions or opinions, than others can, or indeed they should,” &e., “ each church hath her liberty to follow the light of tbe word and the rule thereof, which will not err, nor can deceive, rather than sit down with the allowance of men; but use their own search and care; and if, upon inquiry and observation, either they should appear scandalous in their lives, or erroneous in their judgment and opinions, and those dangerous and infectious, it is then left in the power of the church to require humiliation answerable to the offences, and an open renunciation of such errors, before they be received.”

"Without multiplying authorities to a point which I suppose to be too clear for dispute, it may be considered as well established, that, in the origin and outset of the Congregational denomination, every church and every individual had the right to look directly to the scriptures for the standard of religious truth ; that no power was recognized, either in the civil government or in any ecclesiastical judicatory, of bishop, presbytery, council, synod or association, to decide what was true or what was substantial and essential in doctrine; and that, consequently, the principles of the denomination allowed differences of religious opinion in matters which particular churches and the great body of the churches might consider as material and essential; for each church had the right to choose and change its own standard of religious character and ■ doctrine, for membership and fellowship, and there was no resort to any tribunal clothed with power to determine authoritatively any question of doctrine or discipline.

All Congregationalists were of course Protestants, for their fundamental principles were inconsistent with supremacy in a pope, or binding authority in councils and other ecclesiastical tribunals.

It appears to me, however, to be equally clear, as matter of history, that there was in fact a great general conformity in the doctrines held by the first colonists of New-England, and in particular that no churches or ministers were then Unitarian, Socinian, Arian or even Arminian ; that they were all, at least so far as their opinions were publicly avowed, Trinitarian, and such as would now be termed orthodox; that Unitarians were not then, nor for long afterward, known • as a sect or religious party in the denomination.

Such were the principles with which Congregationalists started in the outset, and which distinguished them from other denominations, with whom they had no disagreement in matters of faith and doctrine ; principles which have' always been and still are, as I understand, generally recognized theoretically as fundamental in the Congregational system. But not long after the settlement of New-England very considerable practical changes were introduced. The principle was still admitted of an inherent right in each church to decide on her own articles of faith. The power to enforce uniformity of religious opinion in the denomination was generally if not universally disclaimed ; but the name of Independents began early to be disliked and disavowed; the association of churches in fellowship became general, and by the concurrent action of the clergy, in associations and synods, and of the magistrates and general court, a great uniformity of religious opinion was practically enforced, especially in Massachusetts. This they did, not upon the ground that they had power to proscribe any religious opinion as heretical, but on the ground that opinions, inconsistent with the doctrines generally received, were dangerous to the civil community. Thus Boger Williams, in 1634, was expelled by order of the magistrates and deputies, “ for broaching and divulging divers new and dangerous opinions against the authority of magistrates.” 1 Palfrey’s History 412. Wheelwright was adjudged by the court to be guilty of sedition and contempt of the court, in 1637, and thereupon expelled from the government. 1 Palfrey 478, 479. In neither of these cases was the order founded on an adjudication of any tribunal, civil or ecclesiastical, that the opinions condemned were erroneous in a religious point of view. They maintained that religious dissension and anarchy in their religious commonwealth were dangerous to the State ; and Mr. Palfrey has, in his recently published volume on the history of New-England, what appears to me to be a very successful vindication of their policy in this respect.

The system of fellowships and associations among churches and ministers appears to have been unknown for some years after the first settlement of New-England, but began to come into use as early as 1631. It met with opposition at first, for the reason that it was supposed to be an infringement upon the Congregational liberty of the churches. Boger Williams, in 1631, inveighed against the practice, then beginning, of associations among neighboring clergymen, “ as being what might grow in time to a presbytery or superintend ency, to the prejudice of the churches’ liberties.” The ministers, however, at an early period united in associations ; they assembled in councils and synods, and recommended, with all the authority of united opinion in a body of men who then had the real control in matters civil as well as religious, rules of discipline and articles of faith. They sought out and denounced existing errors of doctrine. The synod of 1637 defined and condemned eighty-two erroneous opinions, which were supposed to have made their way into Massachusetts. In 1648 the synod adopted the Cambridge Platform, which was also three years afterwards sanctioned by the approval of the civil authority; recommending a system of rules for polity and discipline, and the Assembly’s Catechism for substance of doctrine. In form, the action of the synod was only advisory; they disclaimed the power of “ office imposition,” which would have been inconsistent with the.fundamental theory of their denomination. But in a community where a man’s general importance depended so much on his religious standing, to be denounced for heretical opinions, and put without the pale of regular and orderly churches, had all the practical effect of a legal religious proscription; and a general uniformity in the religious opinions professed was for a time practically enforced, without an avowed abandonment of the principle that each church and congregation were independent of all others, except so far as they might choose to listen to advice and admonition.

This system, however, of fellowships, associations, councils and synods, was not introduced without opposition and remonstrance, nor borne without a good deal of restlessness and impatience. Roger Williams resisted in the commencement. Yane, in the letter to Governor Winthrop which has been before mentioned, protested against the course pursued by the Congregationalists in New-England, stating his apprehension that their example might be followed to extirpate their brethren — the Independents — in England. He says : “ The exercise and troubles which God is pleased to lay upon these kingdoms, and the inhabitants in them, teaches us patience and forbearance one with another, in some measure, though there be a difference in our opinions; which makes me hope that from the experience here it may be derived to yourselves; lest, while the Congregational way with you is in its freedom and backed with power, it teach its oppugn ers here to extirpate and root it out from its own principles.” It is also worthy of remark that the Cambridge Platform, though it is said to have been adopted without dissent by the synod, was not received elsewhere without serious opposition, and, having been referred to the clergy for explanation, was, after a delay of three years, approved in the General Court by a vote of only 26 to 14. Itecords of the second session of the General Court, held at Boston the 14th of October, 1651. I do not understand, however, that this opposition proceeded from any dissent to the general system of doctrines recommended in the Platform.

The time when the Platform was adopted was remarkably favorable for drawing the bonds of religious discipline more closely, and carrying out to the fullest extent the great design of founding a religious state in the New "World. The royal party was then prostrate in England; the colonists were in high favor with the ruling powers at home, and left at full liberty to pursue their scheme of founding a Christian commonwealth in New-England. From 1638, when the civil war began, by the Scotch invasion of England, to the Bestoration, in 1660, may be regarded as the golden age of the New-England theocracy. Both before and after that time they were discountenanced and thwarted by the English government.

The position of the complainants is, I think, fully maintained, that in the early periods of New-England history there was in fact a great degree of uniformity in the faith and doctrines of the churches, which was maintained, however, without professing to discard the fundamental and distinguishing principle of the Congregational denomination, that each church had the right to choose and change her own articles of belief; and I think it is equally well established that the common faith of the churches was then Trinitarian, and what would now be termed Orthodox. Still, there was much difference of opinion in certain matters, a good deal of religious controversy, and not a little of suppressed uneasiness and discontent. The free spirit of the denomination was ready to reassert itself, whenever the pressure to which it had temporarily yielded should be removed.

Before the close of the seventeenth century the theocratic character of the New-England governments had begun sensibly to decline. In 1692 an ordinance was passed in Massachusetts, which provided that “ each respective gathered church in any town or place within the Province that shall at any time be in want of a minister, shall have power, according to the word of God, to choose their own minister; and the major part of such inhabitants as do usually attend on the public worship of God, and are by law qualified to vote in town affairs, concurring with the church, the person thus elected and approved shall be the minister.” I have no historical information as to the motives which led to this enactment; but the law would seem to imply that the original independence of churches and congregations was supposed to have been infringed, and that the ordinance was intended to riestore to them the rights which had been impaired by the action of associations, councils and synods. However that may be under this ordinance, it is said by Shaw, G. J., in The Attorney-General v. The Meeting-house in Federal Street, that the people composing a parish and religious society were under no restraint as to what denomination they should assume, what modes of Christian faith they would- embrace and inculcate, or what form of Protestant worship they would adopt and follow.

In 1815 Dr. Jedediah Morse made a report, as chairman of a committee raised by the General Association of Massachusetts Proper. In this report it is said that laxity in discipline, and a growing defect in the fellowship, union and cooperation of the churches and their pastors, had been gradually increasing for about half a century after the Platform of the New-England churches had been adopted at Cambridge. To remedy this growing evil Cotton Mather, in 1706, produced his plan of a “ Consociation,” which appears to have been approved by the Convention, but met with so much opposition that it never went into operation, but remained a mere proposal. Cotton Mather says himself, “ there were some very considerable persons among the ministers as well as the laity, who thought the liberties of particular churches to be in danger of being limited and infringed, and in deference to these the proposals were never prosecuted beyond the bounds of mere proposals.” About the year 1700, Mr. Higginson, then above ninety years of age, and Mr. Hubbard, also an aged minister, recorded their testimony to the order of the gospel in New-England. In that document they lamented the decay of discipline, and predicted that the apostasy would not stop there, but that the same spirit would dispose the next generation to more and more changes, even in doctrine. 1 Panoplist 454.

Early in the eighteenth century new doctrines began to insinuate themselves, and apprehensions appear to have been entertained that Arminian, Arian and Socinian doctrines might in the end obtain a foothold in Harvard College. The President, Increase Mather, in a commencement address, (the particular year is not stated in the Magnalia, where I find it,) laments that there is a natural tendency in fallen man to relapse into Pelagian, Socinian and Arminian errors, which, can never be so entirely rooted out that they will not be perpetually springing up, like noxious weeds, in the soil of our corrupt nature, “ tanquam infelix lolium in fundo natura corrupto.” In the taste of the times he attacks Arminianism with an anagram, and exhorts the young gentlemen who were taking their first degree in the arts to do their utmost that .not the slightest trace of Arminianism might ever be found in their college. Eacessant igiter inceptores ut in nostra academia nec vola nec vestigium Aiminianismi nnquam inveniatur. 2 Magnalia 17, book 4.

Using the religious freedom of the times, and the liberty which the organization and inherent principles of the denomination allowed, many of the Congregational ministers and churches, under the names of moderate Calvinists and Arminians, had, before the middle of the eighteenth century, lapsed from the strictness of the ancient faith, and held opinions diverging more or less widely from the standard of orthodoxy in earlier times. Under the name of Arminians some are believed to have entertained opinions which went far beyond those of Arminius himself. Ur. Worcester, in a note to his second letter to Channing, say's that men calling themselves Arminians embraced Pelagian and Socinian doctrines. Page 11. When Whitefield made his first visit to this country, about the year 1740, he found a large proportion of the Congregational ministers and churches, Arminian, or at least not strictly orthodox. He and those who followed him were called “ new lights” and “ a new school.” His preaching and the labors of the elder Edwards appear in some measure to have restored the former state of religious opinion in the country.

I find no evidence that ministers and churches, who then held Arminian or other new doctrines, were, by any religions sect or party, denied the name and rights of Congregationalists. I am aware that Arminians are understood to admit the doctrine of the Trinity, and some other — perhaps most — of the Calvinistic doctrines, which are denied by those who are now denominated Unitarians ; but the peculiar doctrines of the Arminians were looked upon by our Puritan forefathers as radically and fatally erroneous, insomuch that some zealous Congregationalists denied that Arminians, including such men as Grotius, were to be reckoned among Protestant Christians. Thus Nathaniel Mather, as quoted by Lord Cottenham in Drummond v. The Attorney-General, says, “ Grotius indeed does the same, and I learn that Arminians and Socinians do so too; but. I do not reckon him or them among Protestants.” The historical fact that Arminians, though they had apostatized from the ancient faith into what was before regarded, by the general consent of the denomination, as substantial and fatal error, were yet recognized on all hands as Congregationalists, shows clearly that diversity of doctrine and change of doctrine were admitted within the pale of the denomination, even in matters then regarded as fundamental and essential.

There were acts and resolutions of synods and councils, which were.intended perhaps by their authors to introduce standards and tests of orthodoxy; but those attempts were attended with only temporary and partial success. The original and fundamental principle of the denomination allowed and enjoined the exercise of individual judgment in matters of religion. It was not only the right, it was the imperative duty, of every Congregationalist to change his religious opinions, whenever, by an honest study of the Scriptures, which were received as the only standard, new light was revealed to his mind, and his conscience dictated the change; and by no such change was it supposed that he forfeited his place and his right in the denomination. And though this free spirit of the denomination was at times repressed, it was never wholly subdued, and never willingly submitted to the restraint of a uniform confession of faith or the control of any ecclesiastical judicatory.

Complaints have continued to be made of the inconvenience and embarrassment caused by this licence and want of order in the denomination. The Panoplist for July, 1812, had an article on the want of ecclesiastical tribunals for the trial of offending ministers, in which the writer says, that, in ease of any moral delinquency, it was a deplorable fact “that there is no tribunal in our churches competent to try an offending minister without his consent and says further, “ But the defect is still more apparent in the case of heresy. Here a minister is absolutely invulnerable.” In 1814, as appears by the Panoplist for that year, the original manuscript of Cotton Mather’s plan of a consociation was discovered and produced before the General Association of Massachusetts Proper. The Association referred it to a committee, of which Hr. Morse was chairman, to inquire and report “ On the expediency of a recommendation of this body of the plan of discipline there proposed, either entire, or with alterations.” At the next annual meeting, Dr. Morse, for the committee, made an elaborate report, referring to the state of the denomination at former periods, and explaining its condition at that time; showing that as early as the time when Cotton Mather made his proposals for a consociation, much laxity in discipline had already been introduced; that the Platform was never adequate to its general object; that it had long ceased to be a guide of discipline, and had gone out of use ; that the state of the churches, for want of some remedy like that proposed, had been such for half a century as could not be viewed without deep solicitude and grief; that the principle of fellowship among the churches was overlooked and forgotten. Panoplist for 1815, vol. 7, p. 359.

In that report the committee say, “ At present there is no uniform system of rules to govern the conduct of churches. The Cambridge Platform, though an able and useful treatise, is not adopted and used as a manual of discipline in our churches. Indeed, though we should be the first to plead for the general soundness of the principles contained in the Platform, we doubt whether those principles are exhibited in so precise and particular a manner as the present state of things would require.” “ Whatever may be said in commendation of the Platform, it has long since ceased to be of general practical use. Its provisions are not carried into effect. By our churches at large it is not regarded as of any consideration.” “In the present state of things, there is no method in which Congregational churches can exercise a Christian watch over each other. A church as well as an individual member may apostatize from the common faith, and fall into disorders wholly incompatible with the Christian character. If such be the fact with any church, can another church in fellowship be indifferent ? But what shall they do ?” “ So distracted is the present state of our ecclesiastical affairs, and so vague and loose and weak the principle of union, that churches in our fellowship may go to the greatest length of apostasy without any inspection, and without losing that indefinite fellowship which they before enjoyed.”

I have not learned what final action was taken on this report by the Association. The question appears to have been left pending before the churches and public ; for in two subsequent numbers of the Panoplist, for November and December, 1815, there is a treatise on the subject, recommending and urging the adoption of the plan proposed by the committee. In this treatise the writer states the same general reasons for adopting the plan which are relied on in the report. He says : “ The Fathers of New-England held four Provincial Synods in the course of half a century. They composed numerous and labored treatises upon the system which they established in the country. But with deep concern they saw the subsequent generations less solicitous on the subject, and inclined to relax their strictness, and to admit innovations with little consideration and little regard to system. The influx of foreigners of various sentiments, the decay of vital piety in the land, and, above all, the relaxation of primitive strictness with regard to the admission of persons to the special ordinances, prostrated the energy of discipline, bred dissensions and controversies, and produced a general and growing departure from the first principles of New-England. Frequent attempts were made at reformation ; new provisions and remedies were devised, with only temporary and partial success.” “ In process of time the platforms and treatises of the fathers were forgotten ; no system was studied, none was acknowledged to be of authority, none was followed. Disorders of course ensued, vital piety languished, discipline became almost impossible, and, to prevent worse disorders than it was intended to heal, was at length nearly laid aside.”

This revival of Cotton Mather’s scheme of a consociation, to be a standing council, with power to investigate and decide questions of discipline and doctrine, met with opposition, as is said by the last mentioned writer in the Panoplist, “from some among the Orthodox, who were practical Independents and Brownists, and dreaded any coalition which would not comport with their favorite independency.” It was charged by Unitarians that the real design of the plan was to introduce a system of conformity, which would drive all dissentients from the Congregational connection, and deprive Congregational churches of their natural rights. Dr. Channiug, in his remarks on Dr. 'Worcester’s second letter, says that Dr. Worcester’s object seemed to be to prepare the Orthodox for a separation from their Unitarian brethren, and, among other things, break up the General Convention of Congregational ministers; and in reference to this proposed plan of a consociation he says: “It is a melancholy fact that our long established Congregational form of church government is menaced, and tribunals, unknown to our churches, and unknown, as we believe, to the Scriptures, are to be introduced, and introduced for the very purpose that the supposed errors and mistakes of ministers and private Christians may be tried and punished as crimes.”

Those who recommended this scheme of a consociation defended it against such objections, by denying that its operation would be to infringe upon the Congregational liberty of the churches : because, they said, by the fundamental principles of the Congregational system, a church could not be deprived of its character as a Congregational church, or laid under any ecclesiastical disability to enjoy gospel privileges, inasmuch as “ each church, upon Congregational principles, is sufficient of itself to maintain worship and discipline, and to observe all gospel ordinances.” “ This,” says the above mentioned writer in the Panoplist, “ is an important advantage of the Congregational system. It entirely shields all churches from all danger of ecclesiastical domination.” “ There is no reason to fear that the rights and privileges of individual churches will be wrested from them by any ecclesiastical combination which can be formed. "Without their consent or allowance, no ecclesiastical power without can prostrate their internal discipline, or deprive them of the special and other Christian ordinances, or force them to do anything more than refrain from communion with such churches as will not commune with them.”

Dr. Worcester, in a note to his third letter to Dr. Channing, gives an emphatic and indignant denial to the charge made by Dr. Charming and the “ Layman,” that the design of the consociation was to deprive Unitarians of their place in the Congregational denomination, or trench upon their rights as Congregationalists.

These answers, made to the charge that the scheme was intended to interfere with the rights of Unitarians as Congregationalists, would seem to go upon a clear concession that Unitarians were interested in the question as Congregationalists, and that the doctrines which they held did not exclude them from the denomination. The orthodox advócales of the system did not say, “ This is a plan to regulate the discipline of Congregational churches and ministers, in which you have no concern ; for you are Unitarians, and therefore not Congregationalists.” They took no such ground, but said, “Your rights are safe; our plan has no such design as you impute to it. All we propose is to provide some uniform and effectual way of inquiring into the character and principles of ministers and churches, in order that there may be a safe and convenient mode of exercising the old and undoubted Congregational right of giving and withholding fellowship, as each church and minister may choose.” Orthodox churches and ministers had already the unquestioned right to withhold fellowship from Unitarians; and if it should be denied, under the proposed system of a consociation, the argument was that the denial would have no other or higher effect than it had before, and would still leave Unitarians within the pale of the Congregational denomination, with all the powers and rights of Congregational churches. I have been informed that this plan of a consociation was extended so as to include Congregational churches in all the New-England States, and was referred to a committee of gentlemen from different States, of whom Ur. Beecher, then of Connecticut, and Ur. Church, of Pelham, in this State, were members; that the committee, after conferring on the subject, were not able to agree on any new plan which they were willing to recommend for adoption ; that the project continued to be agitated till 1826, when it was dropped for the time. The question was, however, revived in 1844, and Messrs. Woods, Humphrey, Snell, Shepherd, Cooley, Storrs and Cooke, appointed as a committee, “to take into consideration what measures are necessary to be taken for the affirmance and maintenance of the principles and spirit of Congregationalism.” Dr. Woods, for the committee, made a report the next year, submitting a plan, but I do not understand that the plan has ever been adopted. In that report the committee say: “We have referred to the want of the necessary harmony among Congregationalists. They do indeed profess in some sort to receive the Cambridge Platform as their standard, but the Platform is in some respects understood differently by different ministers and churches, and none of them conform to all its provisions. Various writers, particularly Hpham, Mitchel, Punchard, and some others, have published books of great value, setting forth what they understood to be the principles of Congregationalism. In most eases these writers agree, in some they differ; but Congregationalists have not adopted the views of either.”

All this action and agitation on the subject appears to go upon an admission that there is not, and at least for the last fifty years has not been, any recognized standard, either of discipline or of doctrine, in the Congregational denomination.

The history of the denomination shows, I think, that the original and distinguishing principles of the Congregational denomination allowed differences and diversities of doctrine within the pale of the denomination; that each church had the right to choose and change her articles of faith; that though the denomination in this country disclaimed the name of Independents, and in the early history of New-England a great degree of uniformity was practically enforced, yet the original principles of the denomination were at all times admitted in theory; that ministers and churches, for a long time before 1817, had used this Congregational liberty, and a considerable number of them had departed from the faith of the fathers, and become Unitarian, and still, by common consent, retained their place and their rights in the denomination.

These new doctrines had come in for the most part silently, and spread gradually. There was no new organization of churches and societies ; the new opinions were engrafted on the old system. Mr. Ellis, in his book, entitled Half Century of the Unitarian Controversy, fixes on the year 1805, when Professor Ware was appointed to the Divinity-chair at Cambridge, as the date when Unitarians became a known and recognized religious party in this country. I understand that Unitarian opinions had been previously entertained and inculcated at Cambridge ; but it was then that the oldest and leading institution of learning in New-England, which had been the great centre and source of Congregational opinion, and the principal nursery of Congregational ministers, passed publicly into the control of Unitarians. The controversy then assumed a popular character. About that time periodical organs of the two parties were established, and have ever since been maintained. The Anthology was begun in November, 1803, which, though partly of a literary character, represented the religious views of the Unitarians. Then came, on the same side, the Christian Monitor, the General Repository in 1812, and the Christian Disciple in 1813. The Panoplist was commenced on the orthodox side, in 1805. The Panoplist in 1810 speaks thus of the Unitarian publications at that time: “ The Anthology, the Christian Monitor, the Improved Version of the New-Testament, the Additional Hymns and Mangled Psalms, with many other publications of like nature,” &c., “ sent into various parts of New-England.” “ The Unitarians of New-England appear to pursue, in many respects, the path marked out by the celebrated Dr. Taylor, of Norwich, towards the beginning of the last century.” “ The present year has produced more Unitarian publications in the United States than the whole antecedent period and the Panoplist, for 1816, says: “ The Anthology sunk under its own sins, and the Repository rose as its successor.” The same journal, as early as 1806, holds the following language: “ Should it please the exalted Redeemer to address the churches in New-England, especially in this commonwealth, we have reason to conclude his language could not be unlike that which he addressed to the churches in Asia. He would certainly find as little to approve and as much to condemn as he found there ; not a single erroneous opinion or practice existed among them which does not in substance exist here.” And in an article found 2 Panoplist 16, entitled, “ Survey of the Churches,” it is said that such errors of opinion “ could not obtain such currency, and be avowed with such boldness, and defended with such success, without the concurring agency of large numbers.”

The slightest examination of the contemporaneous religious publications will show beyond all question that even previous to 1816 there was a very considerable party in the Congregational denomination who were well understood to hold Unitarian opinions; that even then it was by no means a dormant and concealed party, though not so sharply defined as it became in 1815.

And these religious publications of the time show another fact; that the two religious parties had, before 1815, become generally and popularly known by the same distinguishing names which they have ever since borne. The old and Trinitarian party were called Orthodox, and this designation was conceded to them by the Unitarians. They also claimed the name of “evangelical,” which I do not understand that Unitarians yield to the Orthodox as a distinctive appellation. The Unitarian party were generally called and known as Unitarians, and they termed themselves “liberal Christians.” It would be too tedious to cite examples to show that these terms were then in common use as they are now. It is entirely clear that, for several years before 1817, in the religious periodicals and other publications of the time, the same terms were familiarly used to designate the opposite religious parties and opinions that are used now.

Before 1805 there appear to have been some known and avowed Unitarians in New-England, and there is reason to believe there were many more whose opinions, if not industriously concealed, were not openly and formally expressed. As early as 1760, Bellamy, the distinguished clergyman of Connecticut, published an article in the Connecticut Gazette, signed Paulinus, in answer to a communication in the same paper subscribed “ Scripturista.” In that article Bellamy insists that heretical opinions were making an alarming progress in the country; were getting a foothold in Connecticut; were openly avowed in Boston, and says further: “In New-Hampshire Province this party have actually three years ago ventured to new model our Shorter Catechism, to alter or entirely leave out the doctrines of the Trinity, of the decrees, of our first parents’ fall, of original sin, Christ’s satisfying divine justice, effectual calling, justification, adoption, sanctification, assurance of God’s love, perseverance in grace, &e., and to adjust the whole to Ur. Taylor’s scheme; and in their preface to this new catechism they tell the world that the snarling of bigots will be little regarded.” I have not been able to learn who published the mutilated catechism in New-Hampshire, or how far it was circulated and adopted. Since it is now so entirely forgotten, it is fair to infer that the movement had no considerable or permanent success.

The fact we think is well established, that in 1817 a considerable proportion of the churches and ministers in the Congregational order and denomination were Unitarians, claiming to be Congregationalists, and generally recognized as such by the Orthodox division of the denom ination. The exact proportion it is not possible nor material to ascertain. If they constituted a part of the religious denomination known by the name of Congregationalists, it can make no difference in the construction of the will whether they amounted to a third or a sixth part of the whole number. The statistical fact must be conceded to the complainants, that a decided majority of the denomination were then and are now Trinitarian, and that the prevailing opinions in the denomination have always been such.

It is said in argument, that,- though Unitarian opinions may have existed in the Congregational denomination at the time when this will was made, the doctrine was then dormant and concealed, and therefore the testator, when he used the terms, Congregational persuasion, could not have intended that his charity should be applied to the support of doctrines which he cannot be supposed to have known had any existence in the denomination.

The Unitarians had existed in New-England, as an avowed and recognized religious party, and the Unitarian controversy had been going on, from as early a date as 1815. An account of Unitarianism in New-England, extracted from Belsham’s Life of Lindsay, had been published in this country, which undertook to state the progress those opinions had made, to name individuals who embraced them, and set forth the doctrines of the sect in much wider divergence from the Orthodox standard than most Unitarians were willing to admit that they held. In the June number of the Panoplist for 1815 was a review of Belsham’s Work, understood to be from the pen of Ur. Morse, and in the course of that year the whole of the celebrated controversy between Ur. Channing and Ur. Worcester was published. A very animated, not to say heated and acrimonious controversy was carried on in that and the succeeding years, in the religious periodicals and other religious publications, to which the attention of the whole religious public was directed throughout New-England. This we take to be an unquestionable fact. However it may have been in earlier times, we find no foundation for the position that in 1817 the Unitarian doctrines, the Unitarian party, or the Unitarian controversy were private and concealed in New-England, so that they could have been overlooked by any intelligent religious person, especially by a Congregational clergyman, when he was using a term in his will, that in common acceptation might include Unitarians as well as Trinitarians.

It is said that in New-Hampshire the number of Unitarians has always been small, and that in 1817 there were very few avowed' Unitarians in the State, and that, therefore, Unitarians are not entitled, as Congregationalists, under the will; or, in other words, it is contended that the terms, Congregational persuasion, used by a resident of New-Hampshire in establishing a charity in this State, must have a different meaning from that which would belong to the same terms, when used where Unitarians are more numerous in the denomination.

But Congregationalists are not a local denomination, whose principles or system in any way depend on State lines. The counsel for the complainants as well as for the defendants have very properly resorted to the history of the denomination in other States, for their authorities in regard to the principles, the doctrines, and the acts and proceedings of Congregationalists, in order to ascertain the meaning of the terms, Congregational persuasion, used in this will. Ministers and churches of different States have always acted together, as I understand it, in the ordination of ministers, and other ecclesiastical proceedings, whenever local convenience allowed it. At the ordination of Mr. Sprague himself, Dr. Langdon, then President of Harvard College, preached the sermon, which I have seen in print. I understand that only two of the clei'gymen who were called to the council on that occasion were of this State, and the others were from Massachusetts. The Panoplist was tbe general periodical organ of the Orthodox party in 1817, and its proportionate circulation probably as large in New-Hampshire as in Massachusetts. Tbe General Association of New-Hampshire, when they wished to address the religious public in this State, published their proceedings in the Panoplist, and that Association was usually, if not always, represented by delegates in the Massachusetts Association. The Congregational system is, I think, the same, the Congregational denomination the same, and the general meaning of the terms, “ Congregational persuasion,” the same in New-Hampshire as in Massachusetts.

Nor do we find any reason to believe that in 1817 the attention of Congregationalists was less generally called to the Unitarian schism, or the Unitarian controversy, in New-Hampshire than in Massachusetts. Previous to 1811 — how long before I am not able to say — Noah Worcester, a Congregational minister, settled at Thornton, N. H., published the “Bible News,” which appears to have been extensively circulated in this State and abroad. Ur. Channing, in 1815, spoke of it as a well known book, and said that its doctrines agreed with those held by the great body of Unitarians. I have looked into the book, and, so far as a layman may be allowed to judge of such a question, I cannot perceive that the opinions of the author differ substantially from those professed by the defendants, Leonard and Bridge. They are unquestionably Unitarian, and were so regarded at the time. In 1811 the state of opinion in New-Hampshire on the doctrine of the Trinity was thought to be such as called upon the General Association of Congregational Ministers to issue an address on the subject; and at the meeting of the Association, held at Bunbarton, in September, 1811, an address was reported by a committee appointed for that purpose, entitled, “ An Address to the Churches in connection with the General Association of New-Hampshire, on the subject of the Trinity;” which was adopted by the Association, and published in the Panoplist for November of that year. The address vindicates the doctrine of the Trinity, represents that time as one of abounding iniquity, and speaks of prevailing errors in the following terms: “ When errors or damnable heresies are disseminated, we should see that our hearts are established with grace, so that we are not tossed to and fro, and carried about with every wind of doctrine.” I understand that this address on the Trinity was suggested, at least in part, by the Bible News, and the progress which it was apprehended the doctrines of that book had made or were making among Congregationalists in New-Hampshire. It is worthy of remark that the Panoplist was selected as the publication most likely to communicate this address to the Congregationalists of New-Hampshire ; and that publication, from its first establishment, was full of the Unitarian controversy; which shows that all intelligent religious people, especially all Congregational clergymen, in New-Hampshire, must have been well informed of all that 'related to this subject. We have no information which leads to the conclusion that there was anything in the state of religious parties or of religious intelligence to give the terms, “ Congregational persuasion,” any local meaning peculiar to New-Hampshire. We think the words have the same meaning as they would have, if they had been used by a Congregational clergyman in Massachusetts to establish a charity in that commonwealth.

Neither do we find the slightest ground for the position that the word “ Congregational” has or had any peculiar and conventional sense, different from the general meaning, in the usage of any particular sect or party; as is perhaps the case with the word “evangelical,” as used by Trinitarians, and the term “liberal,” in the phraseology of Unitarians. When the Orthodox party speak of evangelical ministers or churches, I understand they mean Orthodox ministers and churches, and exclude Unitarians; whereas Unitarians do not use the word in that restricted sense ; and if the fund had been given to support “evangelical” doctrines, it might be competent to show that the donor belonged to a religious sect that used the term in a peculiar and limited sense. But we understand that the word Congregational is the general term in common use to designate a religious denomination, and is not used by the Orthodox in any peculiar sense, but means the same thing when used by Orthodox and Unitarians. When the Orthodox mean to distinguish their own doctrines from those of Unitarians, they have other and appropriate terms, such as Trinitarian, Orthodox or Evangelical.

We must consider the following positions as established : There has been, since 1817, no change in the state of religious opinions or parties which can aifeet the construction of this will; the term, “ minister of the Congregational persuasion,” had not, in 1817, any local meaning peculiar to New-Hampshire; the term was not then used by any particular religious party or sect in any peculiar, or conventional sense, different from the general, popular, and theological meaning, and therefore the general explanations and definitions of the terms found in books of acknowledged credit are authorities to show the meaning of the term as used in the will.

In Webster’s Dictionary, Congregationalism is defined to be, “ that system of church government which vests all ecclesiastical power in the assembled brotherhood of each local church as an independent body,” and a Congregationalist as “ one who holds to the independence of each congregation or church of Christians, and the right of the assembled brethren to elect their own pastors and determine all ecclesiastical matters.” He cites “ J. Murdock” as his authority for these definitions. Worcester defines Congregationalism to be, “ That mode of church government which maintains the independence of sepa-' rate churches,” and a Congregationalist to be “ one who adheres to Congregationalism.” These definitions do not undertake to set forth the religious opinions of the denominations ; but they show that the terms are not appropriately used to designate any system of doctrines. Bellamy, 1 Works 559, says, “ We all lay down, as a first principle and fundamental maxim, that not creeds or eonfes•sions, but the Scriptures of the Old and New Testament are the only rule of faith, by which we are, each one for himself, to be determined what to believe in matters of religion.” In Adams’ Dictionary of All Religions, 60, Congregationalists are said “ to be a denomination of Protestants, who maintain that each particular church has authority from Christ for exercising church government, and enjoying the ordinances of worship within itself;” and in a note to the same book it is said, “ they are divided into Calvinists of the old school, a large number of Hopkinsians, Arminians, Unitarians of different grades,” &c.

The Encyclopedia of Religious Knowledge — a work which has been copiously cited by the counsel on both sides — Article Congregationalism, has the following: “ Congregationalists are a class of Protestants who hold that each congregation of Christians, meeting in one place, and uniting by a solemn covenant, is a complete church, with Christ for its only head, and deriving from him the right to choose its own officers, to observe the sacrament, to have public worship, and to discipline its own members.” “ The Bible is the only standard by which to test heresy; the churches are not bound by any one creed, but each church makes its own, and alters it at pleasure;” “ all that synods and churches have done has been to set forth the prevailing belief of the churches at the time when they were held.” In Benedict’s History of Religions, Ed. of 1824, p. 193, cited by the counsel for the defendants, it is said, “ the Convention of Congregational Ministers embraces all members of the Congregational persuasion, whatever their theological opinions may be. A large proportion of them are Unitarians, and otherwise anti-Orthodox.”

It has been contended in argument that the term persuasion is more proper to indicate doctrines than the term denomination, and that the terms, “ minister of the Congregational persuasion,” must be held to designate the prevailing doctrines of the denomination, though the term minister of the Congregational denomination might not have that sense. But it will be observed that Benedict, in the passage above quoted, uses the word persuasion in the same sense as denomination, and includes Unitarians under the term, “ ministers of the Congregational persuasion ;” and I think it would be strange to hold that any man was a minister of the Congregational denomination, who was not of the Congregational persuasion. When taken separately and independently there is no doubt a difference in the meaning of the two words ; but used in connection with the denominational name of a religious sect, to designate that sect, the two terms must mean the same thing. If the complainants had established their position that the denomination has a creed implied in the term Congregational, then the term, “ minister of the Congregational denomination,” must necessarily mean one who holds to that creed ; but if they fail to show this, then the word “ persuasion” cannot refer to any creed of the denomination, for none belongs to it, but it must refer to what distinguishes the denomination, that is, to their belief in matters of polity and discipline. And I cannot regard it as a sufficient answer to this view of the question to say that certain doctrines were the prevailing belief of the denomination ; in other words, that the majority of the denomination held to those doctrines; for if the minority were in the denomination, they were as much members of it, and as much embraced within the term Congregational, as the majority. A generic term includes equally all the species, though one species may outnumber another one hundred fold. 'White swans are supposed to be more numerous than black; but the word swan would include the black, if any should be found, as well as the white.

It is to be observed that in the only instance brought to our notice in which the term “ Congregational persuasion” has been used, it has manifestly the same meaning as “ Congregational denomination,” and includes Unitarrians as well as Trinitarians. If the testator understood that the term Congregational denomination would embrace Unitarians, and intended to exclude them, there were other and appropriate terms which he certainly would have used, instead of relying on a distinction so minute and shadowy as this between Congregational persuasion and Congregational denomination. I think that ministers of the Congregational denomination are ministers of the Congregational persuasion, and that the terms must have the same construction in this will. The difference between them is much too slight to be made the foundation of a legal decision.

The history of the constitution, the proceedings and the present condition of the General Convention of Congregational ministers in Massachusetts would seem to have an important bearing on the question whether Unitarians are included in the denomination, and entitled as beneficiaries of a charity established for the aid of Congregationalists. The origin of that association dates as far back as 1680, when Unitarians were not known as a religious sect in the country. It embraced all Congregational minister's in Massachusetts. A large charitable fund had accumulated, to be administered for the benefit of the widows and orphan children of Congregational ministers. None but widows and children of Congregational ministers were entitled as beneficiaries. A decided majority of the Convention are, and always have been, orthodox. In 1820 a committee, consisting of Drs. Porter, Pierce, Holmes and Codraan were appointed by the Convention, who made a report on the history and constitution of the Convention, and recommended rales for governing the proceedings, and defining who were members. The second rule, found at page 27 of the printed report, is in these terms : “Every ordained Congregational minister, having the care of a particular church in this commonwealth, shall be a member of this convention.”

Neither before nor since the adoption of this explanatory rule has the right of Unitarian ministers to be membei’s of the Convention, so far as I can learn, been denied of questioned. They do not meet for purposes of Christian fellowship; they differ widely in faith and doctrine ; but notwithstanding this want of fellowship, and this radical difference in their religious opinions, they are all received with equal rights as ministers of the Congregational denomination. The same question arose there which arises in this cause, to wTit, whether Unitarians are entitled to the benefits of a charitable fund which has been given to aid ministers of the Congregational denomination ; or, in other words, whether the terms, ministers of the Congregational denomination, will exclude Unitarians. The members of that Convention must be supposed to have understood as well as any other body of men what was the true meaning of the term, Congregational minister. Yet they admit, and always have admitted, Unitarians to equal rights in the Convention. The officers and anniversary preachers have sometimes been Orthodox and sometimes Unitarian. I observe, by the published proceedings of the present year, that Dr. Lothrop, of Boston, has been reelected treasurer, and Mr. Morrison, of Milton, chosen for the next preacher. This action of the Congregational Convention must be regarded as very decisive evidence that in Massachusetts the term Congregational ministers includes Unitarians and Trinitarians indifferently.

The same thing is shown by the election of Unitarians to offices in Harvard College, which are required to be filled by Congregational ministers.

There is another consideration which we cannot but regard as of controlling weight in this cause. When a question arises upon the construction of doubtful terms used in an old instrument, it is a safe guide to follow the interpretation which has been put upon them by early and long continued usage, especially where the subject is of a public nature, in which large numbers are interested. This general rule is too well established and too familiar to need the citation of authorities, and has been applied in all its force to cases like the present. Thus in the Attorney-General v. Drummond, 1 Drury & Warren 368, Sugden, then Irish Chancellor, says, “ One of the settled rules of law for the construction of ambiguities in written instruments is, that you may resort to contemporaneous usage to ascertain the meaning of the deed. Tell me what was done under such a deed, and I will tell you what that deed means.” In Shore v. Wilson, 9 Cl. & Fin. 399, Tindal, C. J., said he should look to the early and contemporaneous application of the fund, to ascertain the meaning of Lady Hewley’s deed. In Cambridge v. Lexington, 17 Pick. 230, Chief Justice Shaw, speaking of this rule, says, “ Much of the security of propei’ty and the peace of society is founded on a steady adhesion to this salutary rule.”

I find nothing in the case that gives the smallest countenance to the position that Mr. Leonard’s opinions were concealed and suppressed when he was settled, in 1820. They were as well understood then as they ever have been at any time since. Dr. Ware, the Unitarian professor of divinity at Cambridge, preached the ordination sermon. Dr. Harstow, the venerable and distinguished Orthodox clergyman of Keene, who was called to the council, found Mr. Leonard’s opinions decidedly Unitarian, and refused to assist in his ordination. Mr. Newell, a neighboring clergyman, excluded him from his pulpit on account of his opinions. There has been no change since in the opinions of the ministers who have preached in the First Congregational Society. Yet the townsmen of Mr. Sprague, whom he appointed as trustees to administer this charity, made the first application of it to the support of a minister well known to be a Unitarian, and the same application was continued, without objection, so far as appeal’s in the case, for more than thirty-five years. In the year 1817, in the State of New-Hampshire, and in the town of Dublin, did the terms, minister of the “ Congregational persuasion,” in their common acceptation, include, or exclude, a minister holding opinions like those of Mr. Leonard and Mr. Bridge ? The fact that so soon after the will was made, and as soon as any minister was settled in the society, the people of that town, acting as trustees, applied the fund, and for thirty-five years continued to apply it, without objection, to the support of such a minister, is very strong to show that then and in that pai’t of the country the terms used in the will were commonly understood to embrace Unitarians holding opinions such as are held by Mr. Leonard and Mr. Bridge. A very strong case ought to be made out by the complainants before the court would be authorized, upon any principle recognized in the law, to interfere and disturb the application of a public charity made so early, and so long continued and acquiesced in.

There is another fact, testified to in the case, of some significance, to show the local and contemporaneous meaning of the word Congregational. "When the seceders from the First Congregational Society first associated under the statute, they assumed the name of the “ Second Congregational Society in Dublin,” which they afterward, on a reorganization in 1837, changed to their present corporate name.

TJpon the best consideration which we have been able to give the case, we have been brought to the following conclusions:

That the word “ Congregational,” as used to designate a religious sect, was not in the outset appropriately used to describe a system of theological opinions, but the ecclesiastical polity of the denomination :

That the original theory and fundamental principle which distinguished Congregationalists, when they separated from other denominations, was the right which they claimed for each church and congregation to choose their own officers and teachers, to regulate their own affairs in mattei’s of discipline, and to choose and change their own articles of faith at pleasure, always acknowledging Christ as their head and master, and the Scriptures as the standard of divine truth:

That the theory and original principles of the denomination admitted diversities of opinion in matters of faith and doctrine, which might be regarded by the majority and great body of the churches as substantial and essential ; that there was no ecclesiastical judicatory recognized in the denomination, clothed with power to decide on questions of doctrine, but only to recommend and advise :

That notwithstanding these theoretical principles of the denomination, there was a period in the early history of New-England when uniformity in the profession of religious opinions was practically enforced with much strictness, without, however, denying the theoretic right of congregations and churches to choose their own articles of belief:

That during this period, and for long afterwards, there was in the denomination a prevailing system of doctrines, which might well be called the common faith; that this system was Trinitarian, and such as would now be termed orthodox; that for a century or more after the first settlement of the country, there were no avowed Unitarian, Socinian, or Arian churches or ministers in the Congregational denomination:

That a gradual defection from the ancient faith commenced early in the eighteenth century; that the new opinions were introduced without any change in the organization of churches or congregations; that notwithstanding these changes in doctrine, churches and ministers were still recognized as Congregational, and, by common consent, retained their place in the denomination :

That at length, in the beginning of the present century, there became two recognized parties in the denomination, distinguished by appropriate names; one holding more or less strictly to the old opinions, and called Calvinistic, orthodox, Trinitarian, or evangelical; the other, diverging more or less widely from the ancient faith, and denominated Unitarian, or liberal; that these two divisions now exist within the Congregational denomination, using the Congregational system of polity and discipline, acknowledging the Congregational principle that each church and • congregation have the right to settle their own creed, according to their conscientious interpretation of the Scriptures, and distinguished by the same appropriate names:

That, interpreting the words used in the will according to the general meaning which they have now, and had in 1817, the terms, “ minister of the Congregational persuasion,” would be broad enough to embrace Unitarians and Trinitarians indifferently; and therefore, if the donor intended to limit the benefits of his gift to one division of the Congregational denomination, the court will infer that he would have adopted some one of the appropriate terms in common use to designate the division intended, instead of employing language extensive enough to include both, and would have said that the minister of the Congregational persuasion, who received this bounty, must be orthodox, or Trinitarian, or evangelical, in his religious opinions :

That the construction of the will must depend on the meaning which the language had at the time when the will was made. If at an earlier day the terms were used in a sense which had then become obsolete, or have acquired a new meaning since, the court must endeavor to ascertain their contemporaneous meaning, and be governed by that; that the ancient faith of the denomination is no otherwise important than as it may assist to show what opinions were held in it at that time, and what was the sense'in which the terms were then used; the question being, not whether Unitarians are apostates from the old doctrines, but whether, at the time when the will was made, they had a place in the Congregational denomination, and were included in the meaning of that term :

That there was in 1817 a well known party in the Congregational denomination which held Unitarian opinions; that the relative proportion of members, if it has changed at all since that time, has not changed to an extent which can affect the construction of this will; that Unitarians in 1817 were not a concealed and dormant party, which the donor can be supposed to have overlooked, if he intended his charity should be limited to the support of Trinitarian opinions ; that the controversy between the two sects attracted as much public attention and was carried cfc. with at least as much heat and zeal in 1817 as at the present time ; and that there has been no change in the general use of the terms, “ Congregational persuasion,” which has given them a more comprehensive meaning than they had when the will was made:

That the terms had no local meaning confined to New-Hampshire ; the term, “ Congregational,” as applied to a religious denomination, having the same meaning throughout New-England:

That the terms were not used in any peculiar and conventional-sense by any particular religious sect; but were the common and popular terms, used alike by all sects to designate the same denomination.

There is nothing in the context of the will to control the general meaning of these terms.

Being of opinion that the terms, minister of the Congregational persuasion, used in the written instrument which established this charity, had at the time a known, intelligible meaning, applicable to the subject matter of the gift, without the aid of extrinsic evidence; that those terms were broad enough to include religious opinions such as are held by the defendants, Leonard and Bridge ; that there is nothing in the case to show that they were used in any local or sectarian sense, different from their general meaning; the legal question remains whether evidence of the religious opinions of the donor can be received to control and limit the meaning of the terms which he used in his will, so that Unitarians shall be excluded and Trinitarians only entitled as beneficiaries.

It is said in argument, that the private opinions of Mr. Sprague are not competent, but that his public ministrations and instructions, which show him to have been in connection with the Congregational body, are competent, because he will be held to have used the terms in the sense in which they were used by the religious party to which he belonged. Admitting this legal position to be correct, it has not been shown, nor has there been any attempt to show, that the term “ Congregational” was used by Congregationalists, or any division of'the denomination, in any peculiar sense different from the common and generic meaning. It is not one of the terms, like “ evangelical ” or “liberal,” which have acquired a peculiar and conventional meaning in the usage of a particular religious sect or party; and therefore this ground for a distinction between public and private acts and declarations of the donor, fails on the facts of this case, and the question here is general, whether the individual opinions of the testator can be received as evidence to control the meaning of the language in which he has chosen to express his intention in the will.

If the correct definition of the word “ Congregational” includes Unitai’ians and Trinitarians indifferently, the construction which the court must put upon them will be the same as if the testator had inserted the definition in his will, and said, “I give the fund to aid in the support of a minister of the Congregational persuasion; and provided he is of that persuasion, it is indifferent to me whether he belong to the ■ Trinitarian or Unitarian division of the denomination.” As in our opinion Trinitarians and Unitarians are embraced equally in the general meaning of the term Congregational, as used in the will, if the opinions of the donor can be admitted to contract and limit the meaning, and the court are to draw the legal conclusion that the minister must be of the same religious opinions with the donor, then, if the evidence should prove him to have been a Unitarian, Trinitarians would be excluded, and vice versa.

There is no such obscurity in the terms themselves as prevents the court from giving them effect without aid from the evidence offered ; there is no latent ambiguity, arising from a doubt as to the object of the charity, as described in the will; for the terms, as we hold, embrace both systems of religious doctrine. The question is not to which of them the words relate, for they include both. There is no legal inconsistency in leaving the fund to be applied by the trustees to the support of either Unitarian or Trinitarian opinions, or of both. Following the language of the will in the construction which we give to it, .it is left to the Congregational Society to determine the particular religious opinions of their minister within the limits of the Congregational denomination. The evidence is offered, not to aid the court in giving effect to the language used in the will, but to change the meaning of the language; to limit and control it. The effect of the evidence would be to give the will a different meaning from that which the language implies, when left to be construed without such evidence. I have not been able to discover any legal ground upon which the evidence can be admitted.

There are, however, cases which give countenance to the opinion that such evidence is admissible; but I tbinlr it will be seen, on examination, that in none of them has such evidence been made the sole or principal foundation of the judgment; that the evidence has been received as auxiliary to the main ground of the decision, which would probably have been the same if the evidence had not been received. In no one of those eases do I find the court undertaking to draw the legal conclusion that the donor must have intended to limit the application of his charity to the support of his own religious opinions, though no mention was made of them in the instrument creating the trust. For instance, I find it no where held or intimated that, if a fund were given in trust for a denomination or congregation known to hold certain well defined religious opinions, and the fund had been appropriated contemporaneously by the original trustees to the support of those opinions in that denomination or congregation, it could be shown that the donor himself held to different doctrines, and the legal inference might thence be drawn that he could not have intended his charity should be applied to aid the denomination or congregation which he had designated in his will. The rule cannot be general and absolute, that the court will inquire into the opinions of the donor, and limit the application of his charity to the support of those opinions only. As I understand the cases, none of them go further than to admit the evidence where it was supposed that the intentions of the donor could not be gathered by legal construction from the language used in the instrument which established the charity.

In the eases to which I have referred, the leading facts were materially different from -those which appear here. In all of them the charities had been created in far distant times, and the funds had been diverted from the support of the religious opinions to which they had been contemporaneously appropriated by the original trustees. In the English cases, and in the Irish case,, the new opinions were unlawful at the time of the gift, and the public profession of them punished as a Crime. In all of them the, opinions to which the funds had been diverted were unknown in the denomination to which the donor belonged, and in some of them it was made to appear that the words of the instruments had, in the established usage of the sects to which the donors belonged, a peculiar and conventional sense, that limited their general meaning.

To attempt a full statement and analysis of these cases would be quite too tedious. I will, however, refer to some of them.

In the Attorney-General v. Pearson, 3 Merivale 353, a congregation of dissenters, holding Trinitarian opinions, erected a meeting-house under a trust deed, dated in 1701, declaring that the house should be for the worship of Almighty God. The congregation and the ministers were Trinitarian for about one hundred years, when a Unitarian minister was settled and preached. The court decided that this was a diversion of the" house from the legal use, and admitted in evidence; and reasoned on the fact, that the founders were a congregation of Trinitarians, and held, that inasmuch as it could not be discovered from the deed what the religious worship intended was, it must be inferred from the opinions and usage of the congregation ; that as Unitarian doctrines were unlawful, and Unitarians unknown as a sect in England at the time when the deed was made, it must be inferred that they were intended to be excluded, though, by change' in the laws, Unitarian opinions were not illegal at the time of the hearing. In that case the court, it will be observed, went, partly at least, on the ground that, on account of the looseness and generality of the language used in the deed, the intentions of the donor could not be ascertained from the deed itself without the aid of extrinsic evidence. That reason for admitting the evidence is not found in the pres-i ent case ; and I do not understand that sueh a reason can be admitted in any case, to warrant the introduction of parol evidence ; for, if the difficulty appears on the face of the instrument, and the court cannot gather the intention from the writing merely because it is worded too loosely and obscurely to showwhat the writer meant, he has failed to express his intention, and the writing, as I understand the law, must be held void for uncertainty. There is no such difficulty here. The terms of Mr. Sprague’s will we find intelligible in themselves, and sufficiently specific to show how he intended his charity should be applied. Then, again, the main ground upon which the Attorney-General v. Pearson was decided is wanting in the present case ; for Unitarians were a well known sect in the country, and their opinions not unlawful when this will was made. The Attorney-General v. Pearson was heard before Lord Eldon, in 1817, on an application for an injunction.

In Shore v. Wilson, 7 Sim. 290, (note,) which was the celebrated case of Lady Hewley’s Charities, a fund had been given, in 1707, to aid “Poor and G-odly Preachers of Christ’s Holy G-ospel,” which, after being long appropriated to the benefit of Trinitarians only, was at length partly applied by the trustees to aid Unitarians. The cause was first heard before the vice-chancellor, Sir J. L. Knight Bruce, who admitted evidence of the opinions of Lady Hewley, the foundress, and also of her husband, and of Hr. Colton, one of the original trustees. The vice-chancellor said, “ I am quite certain Lady Hewley would never have considered the disseminators of this book” (The Improved Version of the Scriptures) “as disseminators of Christ’s Holy Gospel. Therefore my decree must in substance declare that no persons who deny the divinity of our Saviour’s person, or who deny the doctrine of original sin, as it is generally understood, are entitled to participate in Lady Hewley’s charity.” The decree would seem to have gone, in part at least, upon what were proved to have been Lady Hewley’s individual views - on religious subj ects. The cause was next heard before Lord Brougham, Chancellor, but no decree was made while, he remained in office ; and afterwards before Lord Lyndhurst, who asked the assistance of Justices Patteson and Alderson. They say, in their opinion, if the intention of the founder is clearly expressed in- the instrument, there can be no difficulty; if expressed in doubtful or general words, recourse must be had to extrinsic circumstances, such as the known opinions of the founder, the existing state of the law, the contemporaneous usage, and the like. Lord Lyndhurst followed this opinion, and received and considered evidence that Lady Hewlej^ was a Presbyterian, and of the opinions held by Presbyterians when the deed was made. Hut he relied, and it would seem chiefly, on the other ground that Unitarians were not known as a sect, and that their opinions were unlawful in Lady Hewley’s time. He also assumed that the words of the deed were so general and loose that the court could not execute the trust without some limitation of their meaning, as they stood on the face of the instrument. He says, “ It may be said that the term, Poor and Godly Preachers, is clear and precise; but it is admitted on all sides that it does not include ministers of the Established Church. It appears, therefore, that the terms, Poor and Godly Preachers, are to be taken with some limitation, and the question therefore is, what are the proper limitations and restrictions in this instance.”

It is a settled rule in England that the courts will apply every fund given for the support of religion to the Established Church, unless the donor had directed otherwise.

If the donor’s opinions had not been admitted in the ease- of which we have been speaking, this rule might have taken the fund from the religious denomination to which the founder belonged, and given it all to the church. And it is not unlikely that the courts may have been unconsciously influenced, in admitting the evidence, by a desire to avoid the injustice of giving a practical operation to that rule in these instances.

This case of Lady Hewley’s charities went to the House of Lords, 9 Cl. & Ein. 499, and seven of the common law judges attended there, and gave each an elaborate opinion. There is a good deal of diversity in their views on different points, but they all, except perhaps Mr. Justice Williams, agree, as I understand them, that the individual religious opinions of Lady Hewley could not be received to aid in the construction of the language which she used in her deed. Even Mr. Justice Williams puts his opinion on peculiar grounds, which have no existence in the present case. He says, “ If the terms are clear, plain and unambiguous, they must be explained by themselves. On the other hand, if the terms of the deed are in themselves obscure, indefinite and ambiguous, or become so in the application of them, it is necessary to call in aid extrinsic evidence to arrive at the intent of the founder; and in my humble judgment the deed in question is of that description. The very generality of the language in this ease creates the embarrassment and the necessity of limitation. What is there to prevent an ample selection being made, (then or now) from members of the church of England, fulfilling in every particular the prescribed requisites ? Why not from among priests of the Homan Catholic persuasion ? I arrive at the conclusion that these words cannot be construed in all their generality, but must be restricted, to some extent. Consistently with the view upon which I consider any of the evidence admissible, I am not aware of any which ought to be rejected.”

Mr. Justice Maulé held all the evidence to be inadmissible, and that Unitarians were entitled. The other judges thought it was competent to show, not Lady Hewley’s individual opinions, but that she belonged to a religious party that used the words in a peculiar sense, different from their common meaning.

Tindal, C. J., said, “ Where the words of a written instrument are free from ambiguity in themselves, and where external circumstances do not create any doubt or difficulty as to the proper application of those words to claimants under the instrument, or the subject matter to which the instrument relates, such instrument is always to be construed according to the strict, plain, common meaning of the words themselves; and in such case all evidence dehors the instrument, for the purpose of explaining it according to the surmised or alleged intention of the parties, is wholly inadmissible. But in mercantile contracts, which in many instances use a peculiar language, employed by those only who are conversant in trade and commerce, and where the words, besides their common meaning, have acquired, by custom or otherwise, a well known peculiar idiomatic meaning in the particular country in which the party using them was dwelling, or in the particular society of which he formed a member, and in which he passed his life, evidence may be received to show the peculiar sense in which the words were used.” “ But the evidence is to be strictly limited to eases of the description above described, and to evidence of the nature above detailed, and in no case is it permitted to explain the language of a deed by evidence of the private views or the secret intentions of the party to the instrument, whether political or otherwise, any more than by express parol declarations made by the party himself.”

All the seven judges, except Maulé, held Unitarians to be excluded, chiefly, as it would seem, because Unitarians were an unknown sect in England, and their opinions unlawful when the charities were founded; and the lords affirmed the chancellors decree without assigning the particular grounds of their decision.

The Attorney-General v. Drummond originated in Ireland, and was heard there before Sugden, Ch., 1 Drury & Warren 868, and 1 Connor & Lawson 210. The questions were on the construction of a deed of trust, made in 1710 by certain Presbyterians, giving a fund “ for assisting Protestant and dissenting congregations that are poor and unable to provide for their ministers.” The chancellor held that the religious opinions of the founders were not admissible to determine whether Unitarians were entitled to share in the benefits of the charity. He said, “ The court, in construing two deeds in the same terms, if such evidence were admitted, would be compelled to give different constructions to the deeds. This shows the difficulty of admitting evidence of mere opinions as a foundation for the construction of particular expressions in a deed; but we must not put a construction on the words of the founders contrary to the general meaning of the words, because they embraced a particular set of opinions. I shall throw out of the consideration of this case all evidence of mere opinions of the founders.” He held Unitarians to be excluded on the other ground that there was no such sect in the country, and their opinions were unlawful at the time when the deed was made.

When this case of the Attorney v. Drummond was before the House of Lords, where the Irish chancellor’s decree was affirmed in 1849, Lord Campbell expressed his opinion that some of the evidence received and reasoned on in Lady Hewley’s case was clearly inadmissible. He said : “ In construing such an instrument you may look to the usage, to see in what sense the words were used at that time of day. You may look to contemporaneous documents, to see in what sense the words were used in the generation in which the deeds were executed, but to admit evidence to show in what sense they were used by pai’ticular individuals is contrary to sound principles.” 1 House of Lords’ Cases 837.

As I understand the facts of these cases, and the grounds on which, in some of them, evidence was received of the opinions entertained by the founders of those charities, no one of them can be regarded as an authority for the admission, in the present case, of evidence to the opinions held by Mr. Sprague ; and the weight of judicial opinion in England appears now to be against the correctness of the decisions by which such evidence was formerly admitted.

There have been some cases in this country which may be thought to bear on the question.

In Miller v. Gable, 10 Paige 627, and 2 Denio 493, land was conveyed, in 1765, to trustees for the use of a church known as the German Reformed Church in the city of New-York, which was then Calvinistic in doctrine, and was called in the declaration of trust, “ The Calvinistic Church in the city of New-York, worshipping in the German tongue.” It was held by the chancellor, contrary to the learned and elaborate opinion of Hoffman, vice-chancellor, that the trust so created was limited to the exclusive use of a congregation holding Calvinistic doctrines. But the chancellor’s decree was reversed on appeal, by a vote of 14 to 3. That case was widely different from the present in the main facts, and I do not sefe that any point decided in it can be regarded as an authority on the particular question which we are now considering. Indeed, I do not find anything in the case respecting the opinions of the founders, except what may be inferred from the fact that they made the gift to a church known and described as Calvinistie. Neither the- chancellor nor vice-chancellor discuss the question whether the individual opinions of the founders could be received as evidence; and that question does not appear to, have been raised on the facts of the case ; the question being, as stated by Porter, one of the three senators who were for affirming the chancellor’s decree, “ whether property, originally given by the founders of a church for the use of that particular church, shall forever thereafter be devoted to the teaching of the peculiar religious doctrines and tenets, and subjected to the particular form of church government which was established in the church by its original patrons and founders.”

In Kniskern v. The Lutheran Churches of St. John’s and St. Peter’s, 1 Sandford Ch. 439, it was held by Sandford, assistant vice-chancellor, in 1844, that, “where a trust is created for the use of a congregation of Christians, designating such congregation by the name of a sect or denomination, without any other specification of the worship intended, the intent of the donors or founders in that respect may be implied from their own religious tenets, from the prior and contemporaneous usage, tenets and doctrines of the sect or denomination to which such congregation belongs.” This case may be considered as an authority that the- opinions of the donor, with other evidence, may be received to show what religious doctrines were intended to be supported ; and it is the only case in this country that I have met with, going to that point.

There are great practical difficulties in the way of admitting such evidence. In the first place, the court must settle, as matter of fact, what were the religious opinions of the founder ; an undertaking of no little difficulty, where the denomination to which he belonged has no creed, or admitted common confession of faith, and where there are no written articles of belief, to which it is agreed that he assented, nor any published and avowed statement of his opinions in existence, especially when the inquiry is instituted forty years after his death. Then, again, what effect is to be given to tbe evidence, when admitted ? It certainly cannot follow in all cases, as a legal conclusion, that tbe donor intended to limit bis gift to tbe support of Ms own religious opinions and no others; as, for instance, where in express terms be gives the fund to support other and different doctrines. Nor could it be .contended, if he gave his charity to maintain religion in a church or congregation that he knew to be established in opinions different from those which he entertained himself, that he meant to require the donees to apostatize from their faith, and adopt his own before they could enjoy his bounty. If the donor, being a Unitarian, should give a fund, and in the deed or will should say expressly that it was for the support of Trinitarian opinions ; or should give it, say, to the “ Trinitarian Congregational Society in Dublin,” which he knew to hold Trinitarian doctrines, I suppose it would not be maintained that the fund must be applied to the support of Unitarian opinions only, because the donor was himself a Unitarian.

At most, such evidence is but one circumstance, which the court are to weigh with or against other circumstances, and draw7 the conclusion of fact on a balance of the evidence. And in such case the inference as to the donor’s intention is drawn as matter of fact from the extrinsic evidence; is showm and proved by tbe extrinsic evidence, and not deduced, by legal construction, from the written instrument which creates the trust. This is nothing else than allowing parol evidence to show an intention different from that which the legal construction,annexes to the words chosen by the donor to express his intention in the written instrument, and appears to be in palpable conflict with the rule which excludes parol evidence to vary or control a written instrument.

Then, again, in the present case, how far and to what extent are we to presume that Mr. Sprague intended to insist on his own religious opinions ? It certainly could not be supposed, unless he expressly said so, that he intended to require his successor in the Congregational society to hold exactly the same religious opinions on all religious questions that he held himself. No such man could probably be found in the Congregational denomination. If it should be said that conformity could be expected only in matters which were substantial and essential, then comes the inquiry,'what religious doctrines are to be regarded as substantial and essential ? The court, it is clear, could not determine what doctrines are really and intrinsically so. They could only endeavor to learn what were considered as such by the donor himself. The object being to ascertain the actual intention of the donor, the inquiry would be as to his individual views on this point. It is said that the doctrine of the Trinity is regarded on all hands as essential. Granting that to be so, it does not follow that other doctrines were not considered by the donor as equally important. Looking to the evidence, we should conclude that Mr. Sprague was very strenuously opposed to the doctrine of election and predestination, as set forth in the Catechism; that he looked upon this question of free will and predestination as substantial and essential, and would bé as likely to insist that his own opinions on that subject should be followed as any other ; and, taking the ground that no one could receive any benefit from this fund who did not agree with the donor in religious doctrines which he regarded as substantial and essential, Mr. Abbot, the complainant, if he holds to all the doctrines of the Catechism, would be excluded on that account.

If it should be said that there are two well known divisions, Orthodox and Unitarian, in the Congregational ranks, and it could be shown to which of these divisions the testator belonged, it might be answered, that unless the donor classed himself publicly with one or the other of those divisions, it does not appear to us by any means an easy undertaking so to draw the line between them that it will in all cases be seen at once on which side of it a man could fall. So far as we have any information, from common observation and reading, or from our investigation of this cause, we find in the religious division called orthodox, or evangelical, no small diversity of opinion on points which have heretofore been considered, and by some are still considered, as substantial and essential. And, on the other hand, the opinions of those who are classed under the general name of Unitarians, commencing with such as are not readily distinguished from those held by some who are recognized as Orthodox, are shaded down to a point, where it is charged upon them that there is little left but mere natural religion.

Besides, if evidence of the donor’s opinions were received and weighed, it would be by no means conclusive to show that he must have intended the fund should be devoted to support his own opinions only, even in matters that he regarded as material and substantial. It does not appear to me impossible, nor by any means extraordinary, that a man should give a charitable fund to aid a particular religious society in maintaining religion, without meaning to insist on his own 'religious views, and with liberty to choose and change their religious opinions, within limits as lai-ge as the utmost boundaries of the Congregational denomination. Mon are perhaps to be found who are entirely confident that their own religious views are in all respects correct, and that those who differ from them are certainly in the wrong; while others, like John Robinson, regard religious truth as progressive, and are waiting for new light to break forth from the Scriptures. Men of this last class would not be likely to insist on binding the society which they endowed, to hold, for all future time, the same religious opinions which they entertained themselves. "We may suppose, too, that, with some liberal minded and public spirited men, the main object of their bounty would be to relieve a society with which they had been long connected, and to which they were much attached, from the burden of maintaining religious worship, rather than to inculcate and perpetuate any particular system of doctrines.

There is another view of this question which is worthy of consideration ; a view suggested by Mr. Justice Maulé in the case of Lady Hewley’s Charities. Suppose that Mr. Sprague wished and intended that his own religious opinions should be maintained and taught in the society; might he not well say, “ I know the Congregational society in Lublin, and can safely trust them with the choice of their own Congregational minister. I am well acquainted with their religious views ; I have taught them religion for forty years.- I think it best and safest to repose in them and their successors the trust of continuing and perpetuating my religious opinions; and I will not attempt to set forth and prescribe any set of doctrines which the minister of their choice must hold, in order that they may have the benefit of my charity. I will not.send my townsmen, if any difference of opinion should spring up among them after my decease, to wrangle in courts of law upon the meaning of theological terms used in my will; the society may hold any doctrines that are admitted within the Congregational denomination.”

It sometimes happens that in the application of general rules we cannot but feel that injustice has been done in the particular case. This must always be matter of regret, though the paramount importance of adhering faithfully to general principles in the administration of the law forbids that courts should yield to any such feeling. We are happy, in the present case, to be free from any apprehension that the rule which we feel bound to declare, excluding evidence of the donor’s individual opinions, has defeated his real intentions, and shut out the merits of the cause from our consideration ; for we have examined the evidence offered on this point, and are satisfied that if received it could,not have brought ns to a different conclusion.

Mr. Sprague made his will on the 13th of December, 1817, and died on the 17th of the same month, of an accidental injury received on the 11th. He was minister of the town and of the Congregational church and society from the 12th of November, 1777, till his death, and appears to have performed the duties of his office during all that time. There does not appear to have been any other preacher in the society or town while he lived ; and there is direct evidence that he was preaching there in the autumn of 1817. He was in an Orthodox neighborhood, and surrounded by Orthodox clergymen ; so that there is „no ground to suppose that his flock derived their religious views from any other source than his own teaching. In September, 1820, Mr. Leonard was settled as his immediate successor, and the income of the fund has been paid to him and his colleague since that time. Mr. Leonard held, at the time of his settlement, the same opinions that he holds now, and substantially the same with those of Mr. Bridge. The case affords no ground for the position that Mr. Leonard’s opinions were not as well known when he was settled as they ever have been at any time since. It is quite impossible to believe that any intelligent person in Dublin could have been ignorant that he was a Hnitai’ian. Tet the people who had been sitting for forty years under the religious teaching of Mr. Sprague, within less than three years after his death settled as his successor a clergyman whom they must have well known to be a decided and an avowed Unitarian, without, so far as appears, any dissent or objection from any member of the church or congregation ; and I recollect no evidence that any objection to the doctrines held and preached by Mr. Leonard was expressed by any member of the church or society for seven years after his ordination.

On this state of the case we must draw the conclusion that at the time when Mr. Sprague made his will, his church and society were not orthodox and Trinitarian in their religious opinions. To presume, in the absence of all evidence to explain a thing so extraordinary, that in two or three years’ time they had gone over in a body to the Unitarian party, and abandoned a faith supposed to be essentially and radically different, and in which they had been indoctrinated for forty years, would be altogether unreasonable and extravagant; for the religious faith of a church and society, in a-country place like Dublin, is a thing of slow growth, and, in ordinary circiimstances, a change of opinion so unanimous and so.sudden would be contrary to all common experience; and certainly it Avould not be contended that Mr. Sprague could be ignorant of the religious opinions entertained by his own church and society. We think the fact is well established in the case, that when Mr. Sprague made this gift for the benefit of his own church and society, their opinions were not Trinitarian and orthodox, and that this fact must have been well known to him at the time.

Suppose, then, for the present, that Mr. Sprague’s opinions were proved to have been orthodox; if, nevertheless, he gave the fund for the benefit of a church and society' that he well knew were not orthodox, are we to infer that he meant to require the church and society to apostatize from their own faith, and adopt his religious views, before they could enjoy the fund which he had given for their use ? If he intended to set any such extraordinary limitation on his bounty, we should certainly expect him to have said so in express and explicit terms. The authorities which admit extrinsic evidence to limit the meaning of general words used in an instrument establishing a religious charity, lay down the rule that when a fund is given to a denomination or society of known religious opinions, it must be inferred that the intention was to support the religious opinions of that denomination or society, and that it would be a misapplication to appropriate the funds for the support of different opinions. Miller v. Gable; Kniskern v. The Churches of St. John and St. Peter, qua supra. If Mr. Sprague’s opinions were shown to have been Trinitarian and orthodox, that evidence would yield,.as I think, to the other fact, that he gave the fund for the benefit of a church and society that he knew were not orthodox and Trinitarian.

Upon the question of fact, whether Mr. Sprague held opinions at such variance with those of Mr. Leonard and Mr. Bridge as would raise a presumption that he intended to exclude them from the benefits of his charity, there are some general views which I think must have a controlling weight. Mr. Sprague had been the religious teacher of the church and society for forty years. In all that time there does not appear to have been the smallest difference or dissatisfaction between them on any subject. If he was decided and strenuous for any particular system of religious doctrines, it is not in the nature of things to suppose that his people, at the end of his long ministry, 'would have been found in a body, and without dissent, entertaining ■ opinions substantially and essentially different from his own. It would be a bold position to take in argument, that a clergyman could be so decided and zealous for a system of religious opinions as to make it a condition, in the appropriation of a public charity, that it should be exclusively applied to the support of those opinions, and yet that his own church and congregation should have imbibed, under so long a course of his teaching, doctrines regarded as opposite and antagonistical to those which he held himself. The most direct and convincing evidence would be required to establish a fact so improbable. The fact, however, is, we think, very appa^ rent in this case, that Mr. Sprague at his death left his flock Unitarian, certainly not Trinitarian and orthodox.

Then, again, the original and continued appropriation of the fund by the town to the support of the same religious opinions that are now held by Mr. Leonard and Mr. Bridge, without objection for thirty-five years, has an important bearing, not only on the construction of doubtful terms used in the will, as has been before remarked, but on every question of fact affecting the right to the fund, that may be raised at this distance of time. The people of Dublin must have known then, better than it would be possible for us to learn now, what were the religious opinions of Mr. Sprague. If they were orthodox and Trinitarian — such as would show his intention that his charity should go for the support of those opinions only— these trustees must have known it; and we are not to presume that they would violate the trust so recently reposed in them, by applying the fund to the support of different opinions ; nor that such a misapplication would be so long acquiesced in by those who were interested in the subject. If Mr. Sprague’s opinions were so different from those of his successors that he could not have intended his charity should be applied to their support, how did it happen that this misapplication was originally made by trustees, who' must have been well acquainted with his views and opinions, and who were selected by him as most likely to carry his intentions faithfully into effect ? and why was the misapplication so long continued and submitted to ?

The direct evidence offered to prove Mr. Sprague’s religious opinions is contradictory, and such as, at this distance of time, is by no means satisfactory. “Without going into an extended examination, it may be remarked that no published writing of his, nor any admitted creed or confession of faith, is produced to show his opinions. We have certain documents said to be manuscripts of sermons in his hand-writing, which, if not absolutely illegible, are certainly extremely difficult to read. There is no evidence of the time when they were preached, nor any direct evidence that they were ever preached at all; bnt the evidence is sufficient to satisfy us that they are in his hand-writing. They must be supposed to express his real sentiments at the time when they were written, and may fairly be presumed to have heen preached by him at some time during his ministry. Taking this for granted, and that the counsel have been able to decypher correctly the parts to which our attention has been directed, all that we have been able to consider is certain detached passages from these discourses, some of which undoubtedly contain orthodox sentiments, stated in sufficiently strong general terms. But we find in no one of them any thing like an argumentative and theological exposition of the writer’s religious opinions. They are for the most part in a pathetic and rather declamatory strain, in no instance purporting to be a definition or guarded statement of his doctrinal views. And as we are wholly without evidence of the time when these discourses were preached or written, they are far from being sufficient to satisfy my mind that the prevailing tone and scope of his religious instructions continued till the end of his life to be of a character substantially different from the opinions which his flock imbibed under his preaching.

In the other evidence relating to the opinions of Mr. Sprague, there is that sort of conflict which we should expect to find when witnesses are called on to give their recollection of conversations and circumstances, after the lapse of more than forty years. On the whole, the evidence, when brought into contradiction with the presumptions arising from other parts of the case, entirely fails to satisfy us that Mr. Sprague when he made his will held opinions so substantially and essentially different from those of Mr. Leonard and Mr. Bridge, that any inference can thence be safely drawn of an intention to exclude opinions like their’s from the benefits of his charity.

So far as we have the means of forming a judgment from the evidence before us, we should be inclined to think that Mr. Sprague was not a man whose mind was much trained in theological discussions. The deciphered passages from his sermons are mostly mere specimens of religious exhortation. Nothing in the case tends to show that he was devoted to the study of polemical divinity, or was inclined to nice distinctions in matters of doctrine. We should infer that he was of a social, benevolent and generous disposition; by no means ascetic in his tastes and habits ; that, if he was capable of apprehending nice theological distinctions, he would not be likely to insist on them so strenuously as some other more earnest men. He was a graduate from Harvard College, of the year 1770; the president of that college preached his ordination sermon; he was a native of Boston, or that neighborhood, where his father resided, from whom it is understood that he derived his estate ; his religious and social relations are likely to have been kept up with Cambridge and that part of the country ; and it is by no means improbable that his religious views may have undergone material changes in the course of his long ministry, as happened to many other clergymen in the time when he lived. Nothing that we have been able to learn of his opinions, his character, his habits, or of the relations which he maintained with his townsmen and parishioners, would incline us to believe that, in leaving a fund to aid them in supporting religion, he would be likely to insist on binding them strictly to any narrow and sharply defined system of doctrines.

Another position taken by the complainants is, that the religion professed by Mr. Leonai’d and Mr. Bridge is not the Christian religion; within the meaning of the term as used in the will. I have not the smallest hesitation in saying that this position cannot be maintained. They believe that the Scriptures contain a divine revelation, given by inspiration of God, and the only sufficient rule of faith and practice ; in the divine mission and the divine nature of Jesus Christ; iñ his resurrection from the dead; in the personality of the Holy Ghost. They acknowledge Jesus Christ as their Lord and Master, and as the great head of the church, and claim the character and name of Christians.

Some zealous divines, holding that the doctrine of the Trinity is an essential part of the Christian religion, have thence drawn the conclusion, as a logical inference, that Unitarians were not Christians; but no one, so far as I have seen, has denied that they were in possession of the name of Christians, or that Unitarians, holding opinions like those of Mr. Leonard and Mr. Bridge, when the Christian religion was mentioned in general terms were not included as one of the numerous sects and divisions that pass under the general description of Christians. The same men who insist that Unitarians usurp the name of Christians, and are not entitled to it, when they use the term Christian religion in a general sense, include Unitarians under that name. Thus Dr. Emmons, in the same discourse in which he maintains that Unitarians are not entitled to the name of Christians, because the Trinity is an essential doctrine of Christianity, says, “ Though all denominations of Christians profess to believe that there is one only living and true God, yet they” (that is, all denominations of Christians) “ do not all profess to believe that he exists a trinity in unity.”

In the Attorney-General v. Drummond, Lord Campbell said: “ Though, when Unitarians were pi’oscribed by law, they could not be regarded as Christians, yet in the reign of Queen Victoria it would be very unchristian to deny them the name of Christians.” In Shore v. Wilson, Coleridge, J., says, “Unitarians profess to be Christians as much, and, we doubt not, as sincerely as Trinitarians, and I apprehend there is nothing unlawful at common law in reverently doubting or denying doctrines parcel of Christianity, however fundamentaland his opinion was that in the actual state of the law Unitarians would be entitled as godly preachers of Christ’s holy gospel.

Protestants, I take it, are one division of the Christian religion, and all who are of the Protestant religion are of the Christian religion. Under our constitution none but Protestants can hold certain offices. So the acts of 1819 and 1827 authorized “ members of any sect or denomination of Christians” to form religious societies. Unless Unitarians are to be reckoned as of the Christian religion, no Unitarian is eligible to the office of governor, senator or representative, and Unitarians cannot form a religious society under the statute. It is quite clear that, under the constitution and laws of this State, Unitarians have always been regarded as a sect and division of the Christiau religion, and we have no difficulty in holding that they must be so regarded, within the meaning of the term as used in this will.

Some minor points remain to be disposed of.

It is objected that Mr. Bridge was not regularly ordained, because a council was not called of the neighboring ministers and churches. Such, it is said, is the usage, and that it ought to be maintained, to prevent a troublesome neighbor from being intruded, and to maintain the faith and order of the churches. We think there can be no such rule of universal application in the denomination. It would be inconsistent with recognized Congregational principles that a combination of neighboring ministers and churches, should have power, after a clergyman was chosen by a church and congregation, to shut him out, on the ground that he would be a troublesome neighbor, or was impure in doctrine. It is said that Mr. Bridge could not have been ordained in this regular way, because the neighboring ministers and churches were opposed to him in religious opinion. The consequence of enforcing such a rule would be that no Unitarian could be settled in an Orthodox neighborhood, nor any Orthodox clergyman in a Unitarian neighborhood ; nor could any Congregational minister be settled in any neighborhood where that denomination was not already established. The ordaining council is no doubt in most instances composed of members who come chiefly from churches in the neighborhood, because that is usually most convenient. But I do not understand that there is any rule or practice of the denomination which, under all circumstances, requires it. Only two clergymen of the council called to ordain Mr. Sprague were, as I understand, of New-Hampshire — the others were from Massachusetts; and .in the ease of Mr. Dunbar, of Peterborough, eleven of the clergymen who were called to the ordaining council were of Massachusetts.

The fund is given to support the Christian religion in the Congregational Society in Dublin, and the interest of the fund is required to be paid to the minister who shall statedly preach in said society. The intention is very plainly expressed to limit the benefits of the fund to the Congregational Society of which Mr. Sprague had been the minister, and the payment of the income to the minister of that society; and unless the First Congregational Society is to be regarded for this purpose as the same with the Congregational Society, the minister is not qualified, under the will, to receive the income of the fund.

The Congregational Society was a voluntary association, from which the members might secede at pleasure, and to which, in order to perpetuate the society, new members would of course from time to time be added; and the society was associated with an organized church. If part of the members should secede, and new members be added, the society would still remain the same association. The members of the society, or the great body of them, adopted the law of 1819, and continued the association under that law, remaining connected with the same church. Mr. Fisk recollects no single member of tbe old society who survived to the time when Mr. Leonard was settled, and did not attend his meeting ; and for years afterwards there was no other Congregational society in the town. The society associated under the statute was still a voluntary association, from which members might at any time retire, and to which new members would be added; it was connected with the same church, and the general object was the same as that of the old society. Previous to 1819 towns had power to make contracts for the support of religious worship, and to assess taxes for that purpose. By the statute passed in that year the law in this respect was changed, and to accomplish the object which had been before reached by the connection of unincorporated voluntary associations with towns, it became extremely convenient, if not absolutely necessary, for religious societies to bring themselves under the operation of the new law, that they might be able to hold property and make contracts for the support of religion.

By the new arrangement which the Congregational Society made under the statute, the character of the society, for all purposes relating to the enjoyment of this fund, was not materially changed. It was still a voluntary society, with precisely the same general objects. The members were no more changed, and no more liable to future change, than they would have been under the old organization ; and they remained connected with the same church. The voluntary society therefore became a corporation under the statute ; and where a fund is given to a voluntary society, which is afterwards incorporated, the fund vests in the corporation; so if a fund is given in trust for a voluntary society, afterwards incorporated, the fund will be held in trust for the coi’poration. Kniskern v. The Lutheran Churches, &c., 1 Sandf. Ch. 439; So. Baptist Ch. v. Yates, 1 Hoff. Ch. 142; Presbyterian Ch. v. Executor of Dannon, 1 Dessau. 154. We think that the First Congregational Society is to be regarded as the same with the Congregational Society, for the purpose of taking the benefit of this fund, and that the minister of the First Congregational Society, being otherwise qualified, is entitled to receive the interest.

The right, then, to the benefit of this fund vested in the First Congregational Society, when they had a regularly-ordained minister of the Congregational pei’suasion, statedly preaching in the society; and we are of opinion that seceders from the society and new Congregational societies have no claim to share in the income. The intention is too clearly expressed for reasonable doubt that the whole income of the fund should be paid to the donor’s successor in the Congregational Society. Su ch is the plain import of the language used. Nothing in the will or in the circumstances of the ease affords the smallest countenance to the notion that the testator meant to encourage division and dissension among his people, by giving part of his charity to seceders. The fund is not given to support the Congregational religion in Dublin, or for the benefit of the Congregationalists of Dublin ; but the income, and the whole income, is required to be paid to the minister of the Congregational Society. The case shows, according to the opinion which we have expressed, that Mr. Bridge is the minister within the meaning of the will, and the income of the fund, by the express terms of the will, is to be paid to him. This is widely different from the case cited of a charity for the benefit of the “Jews’ Poor at Mile End.” If this fund had been given for the benefit of the Congregationalists of Dublin, that case would have been more in point. ‘When part of a religious association separate and establish a new society, they cease to be members of the original society, and have no longer any claim to their property. Reformed Church v. Princeton Seminary, 3 Green’s Ch. 77; Presbyterian Ch. v. Dannon, 1 Dessau. 154; Baptist Ch. v. Witherell, 3 Paige 296.

Ve are asked to remove the town of Dublin from this trust, and appoint new trustees, because, it is said, since the law of 1819, towns have no interest in the maintenance of religion, and therefore have no legal capacity to hold a fund in trust for a religious use. But there is no difficulty in compelling towns to execute such a trust; and towns have a general interest that religious institutions should be maintained for the benefit of the inhabitants. They were endowed, at least many of them, in the original grants of their corporate powers, with lands to aid in the support of religion. The power to make contracts and raise taxes for that object has been taken away; but we see no reason to believe that it was intended to deprive them of the power to hold funds in trust, to aid in supporting religion within their limits, whether the funds had been entrusted to them at the time when the act was passed or have been given since. There would be great inconvenience in denying them this power. It is believed that the instances are very numerous in this State where funds are held in trust by towns to assist the inhabitants in maintaining religious institutions. To what other trustees could the court transfer the trust, where the funds could be held more conveniently or more safely ? Though not directly within the scope of the more appropriate duties and powers of towns, it certainly is not repugnant to the general object of such corporations, nor inconsistent with that object, to hold funds in trust for the support of religion in the towns. It was said by Story, J., in Vidal v. The Mayor, &c., of Philadelphia, 2 Howard 128, that there was “ no positive objection in point of law to a corporation taking property upon a trust not strictly within the scope of its institution, but collateral to it; nay, for the benefit of a stranger, or another corporation.” Towns in this State are to be regarded as a coordinate branch of the government, established to advance the general good of the people; and under our constitution no one can entertain a doubt that to maintain the institutions of religion is an object quite consistent with the general purpose for which towns are created, and that towns have at least an indirect interest in promoting religion within their limits.

We are of opinion that the complainants have not made out a case which calls on the court to intei’fere with the application hitherto made by the trustees of this charitable fund; and the conclusion is that the bill and information must be Dismissed.