Gable v. Miller

10 Paige Ch. 627

• Court: New York Court of Chancery
• Decided: May 7, 1844
• Status: Published

Opinion

The Chancellor.

To understand the questions arising in this case, it is necessary to refer to the history of this church and congregation from its first organization, between eighty and ninety years since. Its records only extend back to October, 1763 ; but its earlier history is contained in a letter transmitted to the classis of Amsterdam, in February, 1766, signed by the the then minister, eiders, and deacons of the church. This letter was received and read as evidence, in the cause, by the consent of both parties. It may be also proper to remark, that at the time the letter was written, this church had attached itself to the coetus of the Dutch Reformed Church here ; which coetus was then under the jurisdiction of the classis of Amsterdam, in connection with the synod of North Holland.

From that letter it appears that previous to 1758, many Germans had settled in New-York, who probably in their native country had been attached to the German Reformed Church, as contradistinguished from the German Lutheran Church. Such of them as understood the Low Dutch language, attached themselves to the Dutch Reformed Church in New-York. But as many of them could understand German preaching only, they were obliged to attend the Lutheran Church, or not hear the gospel preached. This deplorable condition, as they call it in their letter, induced them to make an attempt to establish the worship of God in their mother tongue. A meeting of the German Reformed members was therefore held, and a subscription gotten up for the support of a minister, and arrangements were made to procure a place for public worship. A building formerly occupied as a theatre, in Nassau-street, was purchased for $1250, and fitted up for a place of public worship ; and when completed the society found itself in debt to the amount of $2000.

About the time they got their church completed, in 1758, Dominie Rozencrantz, probably a clergyman of the German Palatines on the Mohawk, whose flock had been driven off and scattered by the Indians, fled to New-York, and was employed by this congregation as their pastor, for a year. At the end of that time he returned to his former charge ; and they then employed another clergyman, who had been stationed upon the Raritan. He, as their letter states, proved to be a wolf among the flock instead of a shepherd j and at the end of a year they were glad to get rid of him. They were then for some months without a preacher. But in the spring of 1761, a vessel arrived having on board a German Reformed clergyman. And they employed him for a year on trial, and finally gave him a call. He soon, however, got into difficulties with the church, and they had to resort to legal means to rid themselves of him ; which was finally effected.

Having learned from experience the danger of engaging ministers in this irregular way, they resolved to adopt a different course for the future. They therefore wrote to the consistory of Heidelburgh, in the Lower Palatinate, requesting them to send a suitable candidate for the ministry. That consistory sent over the Rev. J. M. Kern, who arrived at New-York in September, 1763. He probably had united himself with the classis of Amsterdam and the synod of North Holland before he left Europe. For a few weeks after his arrival, upon learning the situation of the church from its elders and deacons, he advised them to connect themselves with the classis of Amsterdam. On the 28th of October, 1763, the records of the church commence ; in which it is called the “ German Reformed Congregation in New-York.” A meeting of the consistory of the church and of some others of its advisory members took place on that day, at which meeting Dominie Kern presided. And it was then resolved that for the purpose of avoiding all misunderstandings they should join the classis of Amster- ■ dam, and the synod of North Holland ; for which purpose they solicited the aid of the Rev. Dominies Ritzema and De Ronde.

Those two gentlemen, as a matter of history, are known to have been at that time, and for many years before, ministers of the Reformed Dutch Church in the city of New-York ; and they continued to officiate as such until the British took possession of the city in 1776, when they retired into the country. At the same meeting it was resolved that a formal call should be made out for Dominie Kern, according to the rules of the Reformed Dutch Church; and Dominie De Ronde was requested to moderate the call, or, in the language of the articles of that church, to superintend the proceedings in the making of such call. Dominie De Ronde accordingly attended a meeting of the consistory and church on the 26th January, 1764, at which a formal call was made out and signed by the members of the consistory, and was countersigned by him, calling Dominie Kern, as the regular pastor and teacher of the German Reformed Church in New-York j in the form then used by the Dutch Reformed churches. He accepted the call, and notice was given that he would be installed as pastor of the church the next day, by Dominie De Ronde ; which, undoubtedly was done accordingly.

In June, 1764, the pastor gave notice that he had received an invitation from the Dominies Ritzema and De Ronde to attend the meeting of the coetus of the Reformed Dutch Church, which was to be held the next day. And referring to the resolution of the consistory, of the 28th of the preceding October, to unite with the classis of Amsterdam, he suggested that they should then give their conscientious vote upon the subject. It was thereupon resolved that, inasmuch as by subordination to the classis of Amsterdam the best interests of the church could be better promoted than by standing independent, the necessary credentials for that purpose should be duly prepared and signed. Credentials were thereupon drawn up and signed by the members of the consistory, directed to the ministers and deputies of the classis of Amsterdam, constituting the ecclesiastical meeting subordinate to the synod of North Holland. These credentials recited the resolution of the German Reformed church in New-York, of a previous date, to unite with the classis of Amsterdam; the invitation to their pastor to attend the meeting of the coetus ; and that they had again duly considered the measure and had unhesitatingly resolved to carry into effect the measure at the time or opportunity then afforded them ; and stated that they had accordingly, in fulfilment of such resolution, appointed and deputed their pastor and one of their elders to represent them, in subordination to the classis of Amsterdam, in such meeting, for the purpose of deliberating with the ministers and elders of the several churches, and passing such resolutions as might be deemed advisable, in accordance with the word of God and their church discipline, in reference to all matters which might then or thereafter be brought up for decision j for the furtherance of the best interests of the whole of the Reformed Dutch Church in this province^ and especially as related to the interests of their particular church. And that these delegates attended such meeting, and thus consummated the ecclesiastical union with the Reformed Dutch Church in New-York, and with the classis of Amsterdam, is evident from the letter before referred to.

About the close of 1764 a heavy fall of snow caused the walls of their church edifice to spread, so as to render it unsafe as a place of worship, and the congregation was permitted to use the Low Dutch church temporarily till their church could be rebuilt. The new church was erected at an expense of about $3000, of which amount about $1500 was raised by contributions for that object; leaving the society in debt in February, 1768, something more than $3300. This debt was probably paid off by contributions to the society previous to the revolution. For we hear nothing of the debt afterwards; and it appears by the records of the church that applications were sent to Amsterdam and London, for aid, as early as July, 1766. The corner stone of the new church edifice was laid on the 8th of March, 1765. And the proceedings which then took place are important, to show the nature and character of the uses to which the church property and the subsequent donations for the use of the church, previous to the revolution, were devoted by the donors. The record of that transaction states, in substance, that the then church council, as well as the former members thereof and the other members of the congregation, were invited to attend; and that the corner-stone was laid by Dominie Kern, their pastor, in their presence, with a repetition of the words of the patriarch Jacob,<£ This stone which I erect shall be a house of God.” He then said : ££ In the house to be built on this foundation stone shall be taught the word of God, pure and unadulterated, according to the reformed doctrines of Heidelburgh and Switzerland.” And thereupon foundation stones were also IaicT by each member of the consistory, repeating the expression££ for a German Reformed church.” This record is signed by the members of the consistory, and others, stating the times and places of their respective births. From which it appears that three of the members of the then church council were from the canton of Zurich in German Switzerland. In March, 1772, the Rev. C. F. Foering was called as pastor, and in May of the same year he was installed, as such, by one of the regular ministers of the Dutch Reformed Church in the city of New-York.

In October, 1771, the articles of union between the different Reformed Dutch churches in this country were formed, by the advice and direction of the classis of Amsterdam ; which articles were approved of by the classis, and by an assembly of the representatives of the different churches composing such union, the next year. By this union this church, and the Dutch Reformed churches with which it was in connection in this country, were virtually separated from the classis of Amsterdam, and the synod of North Holland, and were left to the spiritual regulation and control of their own church judicatories here. But no change in the doctrines of these churches took place ; net was there any change in their ecclesiastical organization, except such as the separation from the mother church of the Netherlands necessarily required. For the first article of the plan of union declares that they adhere in all things to the constitution of the Netherland Reformed Church, as the same was established in the church orders of the Synod of Dort. And on the 14th of June, 1772, previous to the meeting of the assembly of the Reformed Dutch churches, the consistory of the German Reformed congregation authorized its pastor, and also one of its elders, to represent it in the assembly which was then about to be held to confirm the articles of union, which had been preliminarily adopted the preceding year, and to assent to the same. They accordingly attended and subscribed the articles of union, in October, 1772. This church was thereafter regularly represented in the meetings of the classis of the Dutch Reformed Church in New-York, until the war of the revolution. Dominie Gebhard was its pastor at the time the British took possession of the city in 1776. He fled to the country, and accepted a call at Claverack, from whence he did not return. The members of the church were likewise scattered j but a few of them remained in the city, and by their influence with the Hessian officers preserved their church buildings.

From this statement of facts, it is perfectly evident that this church, not only at the time it was erected in 1764, but also before and after that time, down to the commencement of the revolution, was a Calvinistic church • in spiritual union with the Dutch Reformed churches in New-York, and agreeing with them in its doctrines and church government. The church was not originally founded upon the principle of independency in the ecclesiastical sense of the term, nor in fact in any other sense than that of temporary necessity. For it is a matter of history that the German Reformed churches of the Lower Palatinate, and of German Switzerland, sometimes called in the early history of the reformation the Zuinglian churches, "were organized upon the same plan as the churches of the Netherlands, and of Geneva and of Scotland : That is, with different ecclesiastical church judicatories subordinate to each other ; such as a church session or consistory, a presbytery or classis composed of the clergy and ruling elders as delegates from the different churches "within a particular district, and a synod composed of clerical and lay delegates as the representatives of the several presbyteries or classes in a larger territory. And if the doctrines of the pious founders of this church -were the same as those of the Dutch Reformed Church, it was in accordance with the object for which the society was organized, to put themselves under the jurisdiction and control of the judicatories of that church as soon as practicable.

That their doctrines, as well as their form of church government, were the same as those of the Dutch Reformed churches, is established by the testimony in the cause; which testimony is also in accordance with ecclesiastical history. The term " German Reformed church” was used, at an early day, to distinguish the Calvinistic protestant churches of Germany from the German Lutheran protestant churches ; the latter of which became semi-pelagian soon after the death of Luther, if they were not so from the commencement of the reformation. Although the confession presented at the diet of Augsburgh, on the 25th of June, 1730, is not explicit upon the doctrines of predestination and election, and of the final perseverance of those who have been regenerated by the Holy Spirit, the German copy of the twelfth article, according to Dr. Schmucker, contained a rejection-of the last of these doctrines ; which last is intimately connected with the other two.

The language of one of the condemnatory clauses of that article, in the German copy which was read in the diet, is as follows : " We reject the opinion of those who teach that such as have once become pious cannot fall from grace.” Very little was said upon those subjects at the commencement of the reformation, nor until after Calvin was called to the divinity chair in Geneva, in 1536, subsequent to the death of Zuinglius. Hence we cannot expect to find the five controverted points, of predestination, particular redemption, total depravity, effectual calling and final perseverance, afterward so prominent in theological discussions, set forth with any particularity in the earliest of the Helvetic and German confessions. Yet in the third section of the first article of the confession of Basle, written about 1532 in the German language, by the ministers of the church of Basle, and subscribed also by the pastors of Strasburgh, we find the following : “ Hereupon we confess that God, before he had created the world, had chosen all those to whom he would freely give the inheritance of eternal blessedness.” (Hall’s Harm. of Confess. 83.) Shortly after the death of Calvin, the doctrines which have since borne his name were incorporated, to a greater or less extent, into the confessions of all the protestant churches in Europe, except those of the Lutherans, Moravians, and a few others; and from fifty to sixty years previous to the meeting of the synod of Dort. The Heidelburgh catechism, though not in the form of a confession of faith was intended to have the effect of one, by the Elector Palatine, Frederick the 3d, by whose direction it was written and used for the purpose of having a uniform rule of faith in all the churches of the Palatinate.. It was published about 1563. And it is attributed to Olivianus, the minister of-Heidelburgh, and Ursinus the professor of theology in the Rupert Caroline University; one of the oldest seminaries of learning in- Germany. This university early adopted the Calvinistic doctrines, and bore a distinguished part in the ecclesiastical discussions of the reformation. I refer to these historical facts to rebut the presumption that the doctrines of the Heidelburgh catechism, which is a common standard of faith in the Calvinistic churches of Holland, German Switzerland, and Germany, varies in substance from the doctrines of the Low Dutch Church, upon the points of difference between that church and the Lutherans and other Armenian churches.

Even if Zuinglius, who was killed in 1531, had not in fact written any thing to indicate that his opinions upon what were afterward called and known as the Calvinistic doctrines, were not semi-Pelagian,his successor as the pastor of Zurich Bullinger, was unquestionably a Calvinist. For in the latter confession of Helvetia, re-written in 1566, two years after the death of Calvin, by Bullinger and the other pastors of Zurich, the doctrine of predestination is distinctly set forth. The following, among other things, is contained in chapter 10 of that confession, entitled, Of the predestination of God and the election of the saints. “ God hath from the beginning freely, and of his mere grace, without any respect to men, predestinated, or elected, the saints whom we will save in Christ, according to the saying of the apostle, See. Therefore, though not for any merit of ours, yet not without a means, but in Christ and for Christ, did God choose us; and they who are now en-grafted into Christ by faith, the same also were elected.” (Hall's Harmony, 81.) And this confession is the one which was subscribed not only by all the Zuinglian churches of the Tigurines, but also by their confederates of Berne and Schaffhausen ; and by the pastors of the churches of Sangallia, Rhetia, Mulhausen, and Bienna, of the Grison league. It is also said to have been signed by the churches of Geneva, Savoy, Hungary and Scotland. The 16th article of the Belgic confession, which was published about the same time, and the 12th article of the confession of France, adopted at the synod of Paris in 1559, are the same in substance as the Helvetic confession on this subject. The language of the French confession perhaps is somewhat stronger; at least it is more explicit. Neither of them, however, sets forth the doctrines of the five points, subsequently established at the synod of Dort, with the strength and distinctness of the articles of Lambeth, which were drawn up by the direction of Archbishop Whitgift in 1595, and sanctioned by his archiepiscopal brother of York; nor with the clearness of the Calvinistic articles of the church of Ireland, which were adopted in the convocation of the church of Dublin, twenty years afterward. For the articles of Lambeth, which were incorporated into the articles of the church of Ireland by Archbishop Usher and Ms associates, were as strongly and as decidedly Calvinistic as the subsequent canons of the synod of Dort. In addition to the Heidelburgh catechism, a Calvinistic confession of faith was drawn up by the direction of John Casimir the Elector Palatine, in the latter part of the sixteenth century, for the reformed churches of the Palatinate. It is not, however, referred to in the Harmony, and I have no certain knowledge of its contents. But we may safely infer that its doctrines were the same with those of the reformed churches of Helvetia and of Geneva, &c. from the fact that John Casimir was a Calvinist, and that the doctrines of the palatine confession, as well as of the Heidelburgh catechism, were objected to by the remonstrants at the synod of Dort; which objections were presented to the synod in writing. (2 Toplady’s Works, Lond. ed. 1825, p. 250. Hale's Remains, 55.)

It is not necessary, however, to go back to an earlier period than the synod of Dort, to ascertain the probable harmony between the doctrines of the Dutch Reformed Church of Holland, and those of the reformed churches of German Switzerland, and of the German Reformed churches of Heidelburgh or the Palatinate, &c. subsequent to that time, down to 1763 j in relation to the questions discussed in that synod. The history of that synod, drawn up and published by authority, shows that previous to the convening of the synod, the civil government addressed letters to the king of England, to the Elector Palatine, to the elector of Brandenburgh, to the landgrave of Hesse, to the four reformed republics of Helvetia, Zurich, Berne, Basle, and Schaffhausen, to the republics of Bremen, Geneva, and Embden, and to the deputies of the reformed churches of France; all of whom were requested to send, as representatives to the synod, some of their own theologians, excelling in learning, piety, and prudence, who might earnestly labor,by their counsel and decisions; with the deputies of the Belgic churches, to settle the controversies which had arisen and to restore peace too the churches. And I believe the reformed churches of all these states were represented in the synod; except the elector of Brandenburgh, and the reformed churches of France. Neal says Nassau and Wetteravia were also represented in the synod. The deputies of the protestant churches of France were prohibited by an order of their sovereign from attending. Heylen, in his life of Archbishop Laud, says that the Dutch, antecedently to the calling of the synod, took care to invite to their assistance some divines out of all the churches of Calvin’s platform, and no others. This is probably true; for this invitation does not appear to have been extended to those German states whose churches adhered to the Augsburgh Confession, or to its cognate confessions of Saxony and of Wirtemburgh. It may safely be assumed, therefore, that the German Reformed and the Helvetic churches, which were represented in that synod were Calvinistic ; and that their doctrines, then and subsequently, down to the organizing of the church whose property is now in controversy, were in accordance with the decisions of the synod of Dort upon the controverted points. It is true some of their divines very justly condemned the persecuting spirit with which the remonstrants were pursued in the Netherlands. But the fact that the same persecution did not extend itself to the Palatinate, and to Switzerland, and other Calvinistic states, is no evidence that the churches of those states agreed with the followers of Arminius in their doctrines.

It is certain that the Protestant churches of France, whose delegates were not permitted to attend the discussions of that august assembly, afterwards approved of its decisions; in their national synod at Alez, in 1619. And no dissent whatever appears to have been made to the decisions of the synod of Dort by any of the foreign delegates, except the English divines; who merely protested against its decision as to the parity of the ministry, and asserted the superiority of the prelatical organization of their own church. (See 3 Fuller’s Ch. Hist., Lond. ed. of 1837, p. 279.) I have no doubt, therefore, that there was an agreement in doctrines, upon the five controverted points, between the Low Dutch church and the German Reformed and Swiss churches, from the time of the synod of Dort down to the time of the ecclesiastical union of the German Reformed congregation in New-York with the Dutch Reformed classis and churches in this country, previotis to the revolution.

Nor can I agree with the assistant vice chancellor that there is any satisfactory evidence, either as a matter of history or otherwise, of a fundamental difference in the doctrines of those churches in relation to the sacrament of the supper. If his honor had referred to the Heidelburgh catechism, and to the confessions of faith of the different churches on the subject, instead of resorting to the early writings of Zuinglius before the articles of faith of the churches were settled, I think he must have arrived at the conclusion that, at the time of the synod of Dort, the articles of the German Reformed churches of Switzerland and the Palatinate, as well as the articles of the protestant churches of France, England, Scotland, Ireland and of the Netherlands, were substantially the same as those of the present Dutch Reformed churches, on the question as to the presence of the Savior in the eucharist. They all rejected the Romish doctrine, that the bread and wine were actually changed into the real body and blood of our Lord by the consecration of the elements. And they also rejected the Lutheran. doctrine of consubstantiation, as contained in the tenth article of the Augsburgh confession ; that in the sacrament of the supper the body and blood of Christ were actually present, under the emblems of bread and wine, and were distributed to the communicants. But the confessions of all those churches, at that time, as well as the Heidelburgh catechism, sanctioned the idea of a spiritual presence of the Savior in the eucharist, and a spiritual reception of his body and blood by the pious communicant. Not, indeed, carnally, by the mouth, but mystically, by faith, as food for the soul. Even in the former Helvetic confession, written but five years after the death of Zuinglius, and by those who had been his fellow laborers in the churches of German Switzerland, the spiritual reception of the body and blood of the Redeemer in the sacrament of the supper is recognized. And in the latter confession of Helvetia, this doctrine is most distinctly set forth in the chapter entitled “ Of the Holy Supper of the Lord.” See also the same doctrine contained in the 36th, 37th and 38th articles of the confession of France ; and in the 35th article of the Belgic confession of 1566, confirmed by the synod of Belgium in 1579. When the foundation of the church in Nassau-street was laid, therefore, as a German Reformed church, where the word of God was to be taught pure and unadulterated accordingto the reformed doctrines of Heidelburgh and Switzerland, it was a dedication of the property to the worship of God according to the reformed Calvinistic doctrines of the Dutch Reformed, German Reformed, and Helvetic churches, as recognized in their then standards of faith; all of which doctrines, upon the five controverted points, were unquestionably understood to be in accordance with the canons of the synod of Dort; and as contradistinguished from the Arminian doctrines of the German Lutheran churches, both upon those points and upon the question of consubstantiation.

The fact that the minister, consistory, and church were then in actual ecclesiastical connection with the Dutch Reformed churches, and that no one at that time contemplated a separation, is conclusive to show that it was perfectly well understood that the ecclesiastical organization, as well as the doctrines, of this church was to continue the same in substance. Those who contributed to the funds of this society therefore, whoever they were, made their donations with the intention of dedicating them to the pious use of erecting and sustaining a place of worship and for the preaching of the gospel in accordance with such doctrines, and by pastors who were to be subject to the ecclesiastical control and jurisdiction of the ordinary church judicatories in such churches. It must be recollected, too, that the funds dedicated to this pious use were contributed subsequent to that time and in reference to these objects exclusively. For the debt of the society was then unquestionably more than the value of the site upon which the new church was to be erected.

The letter to the classis of Amsterdam of February, 1766, shows that the original price of the lot, a few years before, including the building which was subsequently used as a place of worship, was but $1250. And when the foundation of the new church edifice was laid, in March, 1765, the debt was $2000 ; the increase of such debt having been incurred in the reparations and changes in the old building beyond the amount of contributions for that purpose. For every practical purpose, therefore, the contributions which were afterwards made towards the erection of the new church edifice, and to pay off this debt, constituted the property devoted to this pious use. And those for whose use the donations were intended have a right to claim, that the property of this church shall be appropriated and applied to the support of the worship of God, and to the propagation of the doctrines and the administering of the sacraments of the church as then established ; unless the defendants can show that the trust has been changed by general consent of all persons interested therein, or that the diversion of the fund to other purposes has been so long acquiesced in as to constitute a bar by lapse of time.

It does not distinctly appear what were the particular doctrines taught in the church during the period which elapsed from the time when Dominie Gebhard was driven off by the British, in 1776, until the close of the war of the revolution. But from the church records, which were again commenced in 1783, it may be fairly inferred that the doctrines of the church had not been changed during that period. For Dominie Kern, who had been formerly settled in this church in ecclesiastical connection with the coetus of the Reformed Dutch Church, is stated to have officiated as preacher during most of that period. And it is then stated that some of the members of the church remained in the city during the war, and that they, with other persons of a similar faith who arrived from Europe and some who returned from the country, kept up an intercourse, by which their church building was preserved in good order.

The first meeting of the classis of New-York, subsequent to the revolution, appears to have been held in October, 1784. Previous to that time, however, it appears that this church had called the Rev. J. D. Gross, of Canajoharie, to be its minister, in December, 1783. It appears also by the records of this church that in May, 1784, Dr. Livingston, who was endeavoring to reorganize the judicatories of the Dutch Reformed Church, which judicatories had, to a certain extent, been broken up by the war of the revolution, applied to the consistory of this church and requested them to consult and decide whether they would send delegates to attend the meetings of those judicatories, and submit to their resolutions and decisions. The consistory thereupon decided that they never would unite with them ; and they entered upon their minutes the following as their reasons for such refusal:

" First, that the German Reformed Church in this city, notwithstanding it in former times sent ministers and elders to attend such meetings, whose names may appear on the minutes of said meetings, and this church may be recorded on the protocol of such meetings, yet by right it should be independent of churches of other nations and languages. Second, that such communion can never promote the. best interests of this church, because such church would be alone; and even if other German churches should join in, still they would be too few to acquire much influence in such meetings, where other languages are spoken which we cannot be supposed to understand, and where we dare not speak our language. Third, that it would be best for this church and German churches in general, to form a union together as soon as a greater number of preachers may be had in this state.” A committee was also appointed to inform Dr. Livingston of their decision. The consistory thereupon concluded to have the church incorporated, under the general act relative to the incorporation of religious societies, which had been passed in April of that year. And the certificate of such incorporation was duly recorded on the 11th of June, 1784. It is evident from this minute of the reasons for not then renewing the ecclesiastical connection with the calssis and synods of the Reformed Dutch Church, that it was not from any disagreement with them in doctrines or church government; but it was merely on account of differences in language, that this church resolved to break off the connection which had theretofore existed. Neither is there an intimation that the consistory of the church, at that time, thought of adopting the principles of independency. On the contrary, they were looking forward to the time when they might place themselves under the control of superior church judicatories, not of a different faith from those with which they had been previously connected, but merely of a different language ; a language which they could understand.

It may also be proper here to remark that all, or nearly all of the German Reformed churches in this country, previous to the revolution, were in some measure connected with the classis of Amsterdam and the synod of North Holland. And when the separation took place between the Low Dutch churches in this country and those European judicatories, the German Reformed coetus of Pennsylvania still continued its connection with, and its dependence, to a certain extent, upon the classis of Amsterdam-, for about twenty years longer. In 1795, Dominie Milledollar, who then belonged to the German Reformed synod of North America, was called as minister of this church. But no connection was then formed between it and any of the judicatories of the church to which he belonged, though it appears that an application was made for that purpose. In September, 1797, the classis of the Reformed Dutch Church of New-York signified its willingness to consider this church as one of its members, notwithstanding its neglect to send delegates for several years; and authorized it to take measures to produce testimonials respecting its pastor, so as to enable him to unite with the classis. In December, 1799, the consistory of the church unanimously resolved that the invitation of the classis of New-York should be accepted; and Dominie Milledollar was directed to make the necessary arrangements to carry the reunion into effect. He therefore obtained the assent of the synod of the German Reformed Church, with which he was connected, to unite himself with the classis of the Dutch Reformed Church of New-York ; and he united himself with that classis accordingly. And in September, 1800, this church was again represented in the classis, by its pastor and one of its ruling elders. The ecclesiastical connection with the classis which was thus resumed was thereafter continued ; with a short interruption, while the controversy between the adherents of Mr. Runkle and the trustees of the corporation was carried on, as reported in 9 Johnson’s Reports. Runkle had been irregularly called, without the sanction of the classis. But in April, 1811, Dominie Dryer was called, with the approbation of the classis, and accepted the call. Dominie Smith was subsequently called with the like approbation. And as there was a controversy in the church as to the regularity of his election as its pastor, the parties were heard before the classis before such call was approved. Dominie Labagh was called, in 1814, with the like approbation ; and he continued their pastor until April, 1822, when his pastoral relation with the church was dissolved by mutual consent, and with the approbation of the classis.

In April, 1822, the church edifice and church lot in Nassau street were sold, and the corporation erected its present house of worship, on one of its lots in Forsyth street which had been conveyed to the trustees of the corporation in 1784. Subsequent to 1822 the defendants and their adherents, claiming to be the legitimate trustees of the corporation and members of the church, have discontinued all intercourse with the classis of New-York, and have refused to submit to its superintending care and control. They have also called and sustained ministers belonging to the Lutheran Church, and others whose doctrines and church government were not in accordance either with the Dutch Reformed or with the German Reformed churches. It is evident, therefore, that the property and funds of this church have been perverted and misapplied to other objects than those to which they were intended to be devoted by the original founders and donors.

It is in vain to say that the clergymen employed instruct the church and congregation from the Heidelburgh Catechism ; which is one of the standards of the Dutch Reformed, as well as of the German Reformed and the Helve-tic churches. As well might it be said that the trustees of a Trinitarian Church did not pervert their trust by appropriating its funds to support a Socinian minister, because he instructed his hearers in the doctrines of the holy scriptures; which scriptures were recognized as the only infallible guide and rule of faith in the Protestant Trinitarian Church of which they were trustees. A very important object in the organization of the German Reformed, Dutch Reformed, and Helvetic churches, in connection with a classis and a synod, and in having the clergy called and employed under the supervision of those church judicatories, was to secure to such churches a ministry who were known to concur in doctrine, <fcc. with the denomination of Christians to which those churches were attached. And without such a supervision there can be no security that the peculiar doctrines of a particuliar denomination of Christians will be inculcated and explained by the pastor of the church.

It is not sufficient, therefore, to show that a clergyman of a different denomination who has been employed by the trustees, as the regular pastor of the church, has not preached the peculiar doctrines of his own confession of faith. For the object of the trust requires that the opposite doctrines, which are peculiar to the church of which he is the pastor, should be inculcated and enforced, occasionally at least. And it is not to be presumed that any Christian minister will preach doctrines which he does not in fact believe to be true. Ho arminian divine, therefore, can teach or preach the word of God “ according to the reformed doctrines of Heidelburgh and Switzerland,” in the sense in which that expression was used and understood by the founders of this church in March, 1765, when the corner stone of the church edifice in Nassau street was laid. The employment of such clergymen as regular pastors, or any other clergymen whose characters and doctrines were not to be subjected to the supervision of the church judicatories of the Reformed Dutch Church, or other church judicatories of the same religious belief, contrary to the wishes of a very considerable portion of the stated hearers and worshippers in this church and congregation, was therefore a clear breach of trust.

Although the classis of New-York was broken up and separated by the war of the revolution, and this church, after the termination of the war, declined for a time to unite itself with the reorganized classis, its members finally came in and unanimously resumed their former relation to that body, and continued such connection for more than twenty years. In 1823, therefore, this church was as effectually re-united to the classis, and to the superior church judicatories of the Dutch Reformed Church, as if it had assented to the reunion immediately after the original cause of separation was removed, by the termination of the revolutionary war. It was then a departure from their duty, by the defendants and their adherents, to attempt to cast off the authority of the classis. And it was also a violation of their trust to exclude the stated supplies of the classis from their pulpit; while the church had no minister regularly called and approved by the classis, according to the regulations of the Reformed Dutch churches with which they were rightfully connected. The funds were raised and devoted to the building of a church for the use of a congregation in that ecclesiastical connection, previous to the revolution ; which connection, though necessarily suspended by the revolution, and for a few years afterwards without necessity, was subsequently restored, with the unanimous consent of the consistory of the church, about the close of the eighteenth century.

The exercise of jurisdiction by this court, in cases of this kind, is not without its difficulties. And I felt them pressing upon me in the case of The Baptist Church v. Witherell, (3 Paige’s Rep. 276,) so as to induce me to doubt whether civil courts could interfere. Since that time, however, several cases have arisen and been decided in this country and in England, which appear to settle the question in favor of the exercise of such a jurisdiction. Most of those cases are referred to in the opinion of the assistant vice chancellor in the present case. (2 Russ. Rep. 114. 1 Myl. & Keen, 446. 3 Myl. & Craig, 72. 7 Sim. Rep. 290. 1 Con. & Law. Rep. 210. 7 Serg. & Raw. Rep. 539. 9 Wend. Rep. 401. 1 B. Monro’s Rep. 215.) The only one not there referred to which is now recollected is that of Dill v. Watson, before the court of exchequer in Ireland in 1836 ; reported by Macrory, under the title of the Clough case.

In that case a portion of the members of the Presbyterian congregation of Clough, in ecclesiastical connection with the synod of Ulster, had without authority of the synod withdrawn from its jurisdiction, and had united themselves with the seceding presbytery of Antrim ; which seceding presbytery was reputed to be socinian in its principles. And the court decreed the temporalities of the church to the complainants and their adherents, who still desired to continue their connection with the synod of Ulster. Upon the principles of these decisions, I think the temporalities of this church must be decreed to belong to the complainants, and to such others of the. church and congregation as adhere to their ecclesiastical connection with the classis of Eew-York, and are recognized by that body.

It is unnecessary to say what would have been the duty of the duly elected and legitimate trustees of the corporation, having the legal title to the temporalities of this church, if the classis of New-York, and the superior ecclesiastical judicatories with which it was connected, had themselves abandoned the fundamental articles of faith upon which such connection was based ; or had irregularly and unconstitutionally attempted to deprive any portion of the members of this church of their legitimate rights and privileges. For there is nothing in this case which can serve as a foundation for a pretence of that kind.

I think the complainants have also established the allegation contained in their bill, that they are the legitimate and regularly elected trustees of the corporation. They certainly constituted the majority of the board in 1837, and have had a regular succession by election; and I am satisfied that they and their adherents constituted a majority of those who were entitled to elect trustees. They also are, and always have been since that time, in connection with the consistory and church that has been recognized by the classis that was entitled to the supervision and control of their spiritual organization and affairs. The interlocutory orders made by the vice chancellor, in the suit which was brought in the name of the corporation, founded upon affidavits, &c. settled nothing between these parties as to matters of fact. Nor did the order made in that case, dismissing the bill, constitute any bar to this suit. It was not a decision of the cause upon the merits, but merely a withdrawal of the suit. And the only question submitted to the vice chancellor, for his decision, was upon what terms the suit should be discontinued, in relation to costs.

The objection that the corporation itself is not made a party, is not raised by the answer; and it is too late to make a mere formal objection of that kind at the hearing, when a proper decree can be made between the parties who are before the court. And if the objection, that the remedy of the complainants was exclusively at law, would have been valid if taken in the answer, which however is not conceded, it is too late to raise that question of jurisdiction for the first time at the hearing. The decision of the assistant vice chancellor must therefore be reversed; and the claim of the complainants to relief must be sustained.

A decree must be entered declaring that the complainants, at the time of filing their bill, were the true and legitimate board of trustees of this corporation ; and that they, or their successors in office who have been duly elected since that time, are entitled to the possession and control of the real and personal estate, and of the books, common seal, title deeds and other papers of the corporation ; that the property of such corporation is held by it in trust for the support of the worship of God, by a church and ministry in connection with the church judicatories of the Dutch Reformed churches, and for the teaching of the doctrines which were recognized by the standards of those churches, and by the classis of Amsterdam and the synod of North Holland in March, 1765 ; which doctrines are the same in . . o substance as those recognized in and by the present constitution of the Reformed Dutch Church in North America.

The defendants, and all the persons claiming under them, subsequent to the commencement of this suit, any of the property of the corporation, or the books, records, or other papers of the church or corporation, must be directed to deliver up the same to the complainants, or to their successors in office ; and must be perpetually enjoined from interfering therewith, hereafter, except so far as maybe consistent with the declarations of this decree. The defendants must pay the costs of the complainants, including their costs upon this appeal, and must also be decreed to account for the rents and profits and the property, which they have received and misapplied, or converted to their own use, since the commencement of this suit; unless such complainants elect to waive the right to an account, in which case this decree is to be final without such accounting.