Hale v. Everett
This text of 53 N.H. 9 (Hale v. Everett) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
Sargent, J.
This society in Dover was formed and organized on the 28th day of August, 1827, and has continued to the present time under the same organization. The purpose and design of forming the society are sot forth in the articles of agreement, as. follows: “ Relieving that the- public worship of God has a salutary influence upon society, by awakening and diffusing moral and religious affections, and considering there are many persons in the place who are unprovided with such means of religious instructions and accommodations for public worship as are most congenial with their own convictions of truth and duty, — therefore, the subscribers, for their mutual and better accommodation in the premises, do hereby unite and form themselves into a religious society by the name and style of The First Unitarian Society of Christians in Dover, and do hereby agree to be governed, in their associate capacity, by such rules and by-laws as said society may from time to time establish. Such persons as are desirous of uniting with them may become members of said society by subscribing this agreement.”
This discloses a design to form not an agricultural, a mechanical, a philosophical, or a literary organization, but a religious society. Its name was adopted for the double purpose of having a legal style and name by which to act and be recognized in law, and also of indicating and defining the religious opinions and sentiments of its members, of expressing their sectarian and denominational preferences and peculiarities. Every word in the name assumed was not only important as a part of its legal cognomen, but also as expressing some truth which formed an important part in the description of the society, referring either to its location and rank, or to the peculiar religious sentiments of its members. It was the “ First ” society of its kind, and not the third or the fifth. It was a society “ in Dover,” not in Exeter or [50]*50Portsmouth. So it was a “ Unitarian,” and not a trinitarian society ; and it was also a society of “ Christians,” and not of Jews, Mohammedans, pagans, or infidels.
This society thus constituted, and having voluntarily assumed this name, the leading and most important words in which were, and were designed to be, so expressive of the most fundamental doctrines of the sect of which, and of which alone, its members were to be composed, on the 6th day of November, 1827,met and voted, — “that,in the views of the society, it is expedient that there should be a house built for the accommodation of its members, in their public worship; that there be a committee formed for raising by subscription the sum of $10,000, for the purpose of purchasing a lot of land, and thereon building a'houso for the above purpose; and that that’ sum be divided into 100 shares of $100 each;” — and a committee was at the same time appointed to superintend said subscription. ■
The required amount was thus raised by subscription, and a lot of land was bargained for; and during the year 1828 a meeting-house was commenced thereon, said house fronting on Locust street, in said Dover, the land’ and house all being paid for by the money thus subscribed. After the house was commenced, the land, including the house, was conveyed, by the Dover Manufacturing Company, June 10, 1828, to five persons, — H., O., A., P., and 0.¿ — all of Dover, and their successors, as “ trustees of said society,” to be held by them “ in trust for the use of the stockholders or proprietors of the meeting-house to be erected thereon, their heirs and assigns, and under such regulations, conditions, and restrictions for the sale and occupancy of the pews in said house, and for the use, care, custody, and control of said house as may be prescribed by a majority of the votes of said stockholders, at any time previous to the sale or disposal of the pews in said house.”
A meeting of said stockholders or subscribers was duly called and liolden at said Dovei’, on the 6lh day of March, 1829, prior to the sale of any of the pews in said house; and among other things it was voted, 1st, “That the general custody of said house shall be under the control of The First Unitarian Society of Christians in Dover.” Then, after various other regulations, they provided that a pew tax shall be paid on the 1st day of April annually, “ to be appropriated for the support of religious worship in said house, under the direction of the First Unitarian Society of Christians in Dover,” and, also, that the pews be sold subject to these conditions.
A public sale of the pews in said house was holden March 17, 1829, when said pews were sold and conveyed, with all the privileges and appurtenances incident to the pews in said house, and subject to all their liabilities, agreeably to the regulations and conditions as adopted by said stockholders for the sale of said pews.
It appears that such vacancies as have occurred in the board of trustees of said society have been duly filled by new elections, and that Eri Perkins and others are the present trustees, and the proper successors of the original grantees of the land, who now hold it, with the [51]*51meeting-house thereon, subject to the same trusts as contained in the original deed.
It will be observed that the meeting-house is described in the bill and in the decree as the meeting-house of said society. This is not literally true, but it is apparent what was intended by this expression. The house was not the absolute property of the society. Perhaps the society, properly speaking, had nothing of legal title. It was not conveyed to the society, not to the trustees of the society in trust for the use of the society as such, but to said trustees and their successors in office, “ in trust for the use of the stockholders or proprietors of said meeting-house, * * * their heirs and assigns,” subject to such regulations, conditions, and restrictions “for the occupancy of the pews in said house, and for the use, care, custody, and control of said house,” as should be prescribed by the stockholders (subscribers) before the sale of the pews ; and the conditions prescribed by the stockholders were that “ the custody of said house shall be under the control of,” and that the annual pow tax is “ to be appropriated for the support of religious worship in said house, under the direction of” “The First Unitarian Society of Christians in Dover.” While, therefore, the house was not owned by the society, nor held in trust for the use of the society as such, the legal title was held by the trustees of said society, but in trust for the use of the stockholders or proprietors of said meeting-house, but not for their general or unrestricted use. But their use, both in the occupancy of 1lie pews, and in the general use, care, and custody of the house, was to be under the absolute and unlimited control of “ The First Unitarian Society of Christians in Dover,” and the annual pew tax was to be appropriated for the support of religious worship, under the same unlimited control of the same society.
It was, therefore, the meeting-house which, the society controlled, both in regard to the occupancy of the pews and the general custody and use of the house, and is thus spoken of as the house of the society, though the society did not hold the legal title. No question is raised here in regard to this trust, or in regard to the right of this society to control the house and the use of it in the way specified in the deed, and as regulated and restricted by the subscribers to the stock before the sale of the pews.
Free access — add to your briefcase to read the full text and ask questions with AI
Sargent, J.
This society in Dover was formed and organized on the 28th day of August, 1827, and has continued to the present time under the same organization. The purpose and design of forming the society are sot forth in the articles of agreement, as. follows: “ Relieving that the- public worship of God has a salutary influence upon society, by awakening and diffusing moral and religious affections, and considering there are many persons in the place who are unprovided with such means of religious instructions and accommodations for public worship as are most congenial with their own convictions of truth and duty, — therefore, the subscribers, for their mutual and better accommodation in the premises, do hereby unite and form themselves into a religious society by the name and style of The First Unitarian Society of Christians in Dover, and do hereby agree to be governed, in their associate capacity, by such rules and by-laws as said society may from time to time establish. Such persons as are desirous of uniting with them may become members of said society by subscribing this agreement.”
This discloses a design to form not an agricultural, a mechanical, a philosophical, or a literary organization, but a religious society. Its name was adopted for the double purpose of having a legal style and name by which to act and be recognized in law, and also of indicating and defining the religious opinions and sentiments of its members, of expressing their sectarian and denominational preferences and peculiarities. Every word in the name assumed was not only important as a part of its legal cognomen, but also as expressing some truth which formed an important part in the description of the society, referring either to its location and rank, or to the peculiar religious sentiments of its members. It was the “ First ” society of its kind, and not the third or the fifth. It was a society “ in Dover,” not in Exeter or [50]*50Portsmouth. So it was a “ Unitarian,” and not a trinitarian society ; and it was also a society of “ Christians,” and not of Jews, Mohammedans, pagans, or infidels.
This society thus constituted, and having voluntarily assumed this name, the leading and most important words in which were, and were designed to be, so expressive of the most fundamental doctrines of the sect of which, and of which alone, its members were to be composed, on the 6th day of November, 1827,met and voted, — “that,in the views of the society, it is expedient that there should be a house built for the accommodation of its members, in their public worship; that there be a committee formed for raising by subscription the sum of $10,000, for the purpose of purchasing a lot of land, and thereon building a'houso for the above purpose; and that that’ sum be divided into 100 shares of $100 each;” — and a committee was at the same time appointed to superintend said subscription. ■
The required amount was thus raised by subscription, and a lot of land was bargained for; and during the year 1828 a meeting-house was commenced thereon, said house fronting on Locust street, in said Dover, the land’ and house all being paid for by the money thus subscribed. After the house was commenced, the land, including the house, was conveyed, by the Dover Manufacturing Company, June 10, 1828, to five persons, — H., O., A., P., and 0.¿ — all of Dover, and their successors, as “ trustees of said society,” to be held by them “ in trust for the use of the stockholders or proprietors of the meeting-house to be erected thereon, their heirs and assigns, and under such regulations, conditions, and restrictions for the sale and occupancy of the pews in said house, and for the use, care, custody, and control of said house as may be prescribed by a majority of the votes of said stockholders, at any time previous to the sale or disposal of the pews in said house.”
A meeting of said stockholders or subscribers was duly called and liolden at said Dovei’, on the 6lh day of March, 1829, prior to the sale of any of the pews in said house; and among other things it was voted, 1st, “That the general custody of said house shall be under the control of The First Unitarian Society of Christians in Dover.” Then, after various other regulations, they provided that a pew tax shall be paid on the 1st day of April annually, “ to be appropriated for the support of religious worship in said house, under the direction of the First Unitarian Society of Christians in Dover,” and, also, that the pews be sold subject to these conditions.
A public sale of the pews in said house was holden March 17, 1829, when said pews were sold and conveyed, with all the privileges and appurtenances incident to the pews in said house, and subject to all their liabilities, agreeably to the regulations and conditions as adopted by said stockholders for the sale of said pews.
It appears that such vacancies as have occurred in the board of trustees of said society have been duly filled by new elections, and that Eri Perkins and others are the present trustees, and the proper successors of the original grantees of the land, who now hold it, with the [51]*51meeting-house thereon, subject to the same trusts as contained in the original deed.
It will be observed that the meeting-house is described in the bill and in the decree as the meeting-house of said society. This is not literally true, but it is apparent what was intended by this expression. The house was not the absolute property of the society. Perhaps the society, properly speaking, had nothing of legal title. It was not conveyed to the society, not to the trustees of the society in trust for the use of the society as such, but to said trustees and their successors in office, “ in trust for the use of the stockholders or proprietors of said meeting-house, * * * their heirs and assigns,” subject to such regulations, conditions, and restrictions “for the occupancy of the pews in said house, and for the use, care, custody, and control of said house,” as should be prescribed by the stockholders (subscribers) before the sale of the pews ; and the conditions prescribed by the stockholders were that “ the custody of said house shall be under the control of,” and that the annual pow tax is “ to be appropriated for the support of religious worship in said house, under the direction of” “The First Unitarian Society of Christians in Dover.” While, therefore, the house was not owned by the society, nor held in trust for the use of the society as such, the legal title was held by the trustees of said society, but in trust for the use of the stockholders or proprietors of said meeting-house, but not for their general or unrestricted use. But their use, both in the occupancy of 1lie pews, and in the general use, care, and custody of the house, was to be under the absolute and unlimited control of “ The First Unitarian Society of Christians in Dover,” and the annual pew tax was to be appropriated for the support of religious worship, under the same unlimited control of the same society.
It was, therefore, the meeting-house which, the society controlled, both in regard to the occupancy of the pews and the general custody and use of the house, and is thus spoken of as the house of the society, though the society did not hold the legal title. No question is raised here in regard to this trust, or in regard to the right of this society to control the house and the use of it in the way specified in the deed, and as regulated and restricted by the subscribers to the stock before the sale of the pews. This meeting-house was thus held by certain persons, being trustees of the society for the time being, in trust for the use of certain other persons, said use being always subject to the control and general custody of “ The First Unitarian Society of Christians in Dover.”
This society was formed under and by virtue of an act of the legislature of this state, entitled “ An act empowering religious associations to assume corporate powers.” Approved July 3, 1827, N. H. Laws (1830) 462. This was substantially a reenactment of the act of 1819, 2 N. H. Laws (1824) 44 ; and this act of 1819 was in amendment of the law of 1791, entitled “An act for regulating towns and the choice of town officers ” — N. H. Laws (1815) 243 ; and this law of 1791 was passed under and in conformity with the provisions in [52]*52our state constitution of 1783, which provisions remained unchanged in the constitution of 1792, which is still in force.
Let us then examine such parts of our constitution as bear upon this subject, and we shall find it convenient to select and group together several articles of part first of the bill of rights, and also of part second of the constitution, each of which we may need to examine by itself and in connection with the others, as throwing light upon the questions involved in this case.
These articles in the constitution of 1783 were not changed in the revision of 1792, but remain the same in both, and continue unchanged to the present time. They are as follows:
“PART FIRST.
“ BILL OP RIGHTS.
“Art. I. All men are born equally free and independent; therefore, all government of right originates from the people, is founded in consent, and instituted for the general good.
“Art. II. All men have certain natural, essential, and inherent rights, — among which are the enjoying and defending life and liberty, •acquiring, possessing, and protecting property, and, in a word, of seeking and obtaining happiness.
“Art. III. When men enter into a state of society, they surrender up some of their natural rights to that society in- order to insure the protection of others; and without such an equivalent the surrender is void.
“Art. IY. Among the natural rights, some are in their very nature unalienable, because no equivalent can be given or received for them. .Of this kind are the rights of conscience.
“Art. Y. Every individual has a natural and unalienable right to worship God according to the dictates of his own conscience and reason ; and no subject shall be hurt, molested, or restrained in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession, sentiments, or persuasion, provided he doth not disturb the public peace, or disturb others in their religious worship.
“Art. YI. As morality and piety, rightly grounded on evangelical principles, will give the best and greatest security to government, and will lay in the hearts of men the strongest obligations to due subjection ; and as the knowledge of these is most likely to be propagated through a society by the institution of the public worship of the Deity, and of public instruction in morality and religiontherefore, to promote these important purposes, the people of this state have a right to empower, and do hereby fully empower, the legislature to authorize from time to time the several towns, parishes, bodies corporate, or religious societies within this state to make adequate provision, at their own expense, for the support and maintenance of public Protestant teachers of piety, religion, and morality.
“Provided, notwithstanding, That the several towns, parishes, bodies [53]*53corporate, or religious societies shall at all times have the exclusive right of electing their own public teachers, and of contraciing with them for their support and maintenance; and no person of any one particular religious sect or denomination shall ever be compelled to pay toward the support of the teacher or teachers of another persuasion, sect, or denomination.
“And every denomination of Christians, demeaning themselves quietly, and as good subjects of the state, shall be equally under the protection of the law; and no subordination of any one sect or denomination to another shall ever be established by law.”
The other provisions of the constitution, that need to be considered in connection with the above, are the following:
“PART SECOND.
“ FORM of government.
“Art. Y. And, further, full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions, and instructions, either with penalties or without, so as that the same be not repugnant or contrary to this constitution, as they may judge for the benefit and welfare of this state, and for the governing and ordering thereof, and of the subjects of the same.
“Art. XIY. Every member of the house of representatives * * ® shall be of the Protestant religion, -and shall cease to represent such town, parish, or place, immediately on his ceasing to be qualified as aforesaid.
“Art. XXIX. Provided, nevertheless, That no person shall be capable of being elected a senator who is not of the Protestant religion * ® ® .
“Art. XLII. The governor shall be chosen annually, in the month of March * * * . And no person shall be eligible to this office ® ® * unless he shall be of the Protestant religion.
“Art. LXI. * * * and the qualifications for councillor shall be the same as for senator.”
It is sufficiently plain that, by these last four provisions, a religious test is instituted as a qualification for holding certain civil offices. Every member of the house of representatives “ shall be of the Protestant religion.” No person shall be capable of being elected a senator or councillor “ who is not of the Protestant religion.” And no person shall be eligible to the office of governor “unless he shall be of the Protestant religion.” Something more is evidently intended by these expressions than that a man should simply not be a Roman Catholic in order to hold these offices. The requirement is not negative, but positive and affirmative. It is not that these offices may be filled with those who are not Roman Catholics, or who are not pagans, or Jews, or Mohammedans, but only by those who are of the Protestant religion. This is so in every case; each provision requires a positive and affirmative qualification in order to hold the office. A Mohammedan is not a [54]*54Roman Catholic ; but he cannotdiold these offices, or either of them, because he is not of the Protestant religion, as the law requires he should be. So of the Jew ; so of the pagan. The same would be true of an infidel; he is not a Roman Catholic, but he is not of the Protestant religion, because, to be a Protestant he must be a Christian ; to be of the Protestant religion, he mnst be of the Christian religion. The term Christian embraces and includes both Roman Catholic and Protestant alike; and, to be of the Catholic or Protestant religion, a person must first bo of the Christian religion.
In Robbins’s Religions of All Nations, page 6, it is said, — “ The religious world is divided into four grand systems, viz., Christianity, Judaism, Mohammedanism, and paganism. Christianity is the religion of those who believe that Jesus Christ is the true Messiah and the Saviour of men, and who receive the Holy Scriptures of the Old and New Testaments as the word of God [page 11]. -Judaism — of all those who still expect and look for a promised Messiah. Mohammedanism — of all those who acknowledge Mohammed a true prophet. Paganism— of all those* who have not the knowledge of the true God, but worship ’idols.”
The author,adds, “ The only people who may not be classed under one or the other of these four divisions are the Deists and the Atheists, the latter differing from them all, in owning no religion, and the former in owning no divine revelation as the foundation of their religion.”
The grand subdivisions among Christians are,—
“ 1. The Greek or Eastern church.
“ 2. The Roman Catholics, who acknowledge the authority of the pope.
“ 3. The Protestant or Reformed churches or sects, who reject the authority of the pope.” Id., p. 7.
In consequence of the protest against the decree of the Diet of Spires (or Spire or Speiers), hol'den within and for the empire of Germany, under the Emperor Charles Y, in the year 1529, the followers of Luther were denominated Protestants, — a general term, which was applied alike to all who adopted the principles of the Reformation in opposition to the’ Catholic church, and which has continued to the present time. Id., 109, 110. Dowling’s History of Romanism 471 and note; 1 Pelt’s Ecclesiastical History of N. Eng. 5,6; 4 D’Aubigne’s History of the Reformation, book 13.
Now the principles of the Reformation, thus adopted by Luther of Saxony and his fellow laborers, — among whom were Zuinglius in Switzerland, Melanclithon in Germany, Calvin in Prance, Cranmer in England, and Knox in Scotland, preceded first by the Waldenses among the Alps, and later by Wickliffe of England, and after him by Huss and Jerome of Bohemia, — were founded upon the Bible alone, received as the revelation of God’s will, and held to be the supreme and only rule of faith and practice. In this they all agreed, though they differed widely in many of their views of doctrine and of church
[55]*55These views and principles were incorporated into a general confession by the Diet held at Augsburg in Bavaria, in the year 1530, which has since been known as the “ Augsburg Confession.” This event marked the.culmination of the German reformation; and this confession was for a time the established Protestant creed. 1 Chambers’s Encyclopedia 548,549 ; 6 Chambers’s Encyclopedia 222. This confession consisted of two parts, — first, the positive or affirmative part, consisting of twenty-one articles, which embraced their views of Christian doctrines as taught in the Bible ; while the second part consisted of seven articles, stating the points of difference between themselves and the Roman Catholics. Mosheim, in speaking of the Augsburg Confession, says, — “ That confession was adopted by the whole body of the Protestants as the rule of their faith.” 4 Mosheim’s Ecclesiastical History, ch. 3, p. 89. In a note on page 90, it is said that twenty-one chapters were devoted to stating the positive and affirmative principles and opinions which they entertained as Protestants, and only the remaining seven to pointing out the errors of popery. 1 Chambers’s Encyclopedia, “Augsburg Confession”; 4 D’Aubigne’s History of the Reformation, book 14. From this we learn that it was thus early considered that what they believed was of vastly more consequence than what they did not believe ; that it was far more important to be right themselves, than, to differ from somebody else who was, or was supposed to be, wrong; of far greater moment to be Christians, than not to be Romanists. They were all Christians ; believers in Christianity first, and secondly, though Christians, they did not admit the authority of the pope of Rome; and though the number of religious sects has since been multiplied, yet the term Protestant has never been applied, and cannot properly be applied, to any but those who are first Christians, and afterwards anti-Catholic.
An infidel, — one who does not believe the Bible, or that Jesus Christ was the true Messiah, “ the Christ of God,” — can no more be a Protestant than he can a Roman Catholic, because he lacks the first and chief qualification of either, viz., a belief in Christianity; for while he, with the Protestant, denies the authority of the pope, he differs from both in not believing the Bible, or in Jesus Christ and his religion. The infidel and the pagan stand alike; they are both anti-Catholic, and equally anti-Protestant. They each lack the first element, necessary to make them either Catholic or Protestant, and that element is Christianity. Jews believed in the Old Testament, and not in the New. Mohammedans receive the whole Bible in a sense, but receive and acknowledge the Alcoran as of higher authority, and accept Mohammed as a greater prophet than Jesus. Neither believes the system of Christianity, as taught in the New Testament. They are both, alike, anti-Catholic and anti-Protestant, for the reason that they are both anti-Christian. A Roman Catholic is a Christian who admits the authority of the pope; a Protestant is a Christian who denies that authority; and no one not a Christian can be either a Catholic or a Protestant, any more than a man can be a Jew (religiously) who does not believe in [56]*56Moses or the Pentateuch, or than he could be a Mohammedan who did not believe in Mohammed or the Alcoran. Since the days of Luther, Romanists and Protestants have constituted, and still constitute, the two great divisions of Christianity in western Europe and America.
This question becomes of little importance in this case, in the view we take of Art. VI of the bill of rights. But, still, as it is argued and held by one member of the court that the word Protestant in that article, as well as in all other places where that word is used in the.constitution, means simply anti-Roman Catholic and nothing more ; and, also, that the word Christian in said article is used in a sense having no reference to Christianity as a system of religious doctrines, but in some indefinite sense which would include all good men who behave well without regard to their religious belief, we, for a moment, in passing, advert to these positions, in order to state the views of the majority of the court upon those subjects. Wé have already cited some authority upon the word Protestant. There are numerous others. Felt, in his Eccl. Hist, of New Eng., p. 6, says, that .the term Protestant since the Diet of Spire has been “ applied to Christians who have withdrawn from communion with the Roman See.” Chambers, in his encyclopaedia, traces the meaning of the word Protestant from the protest of Spire down, and concludes that the essence of Protestantism consists “ in the source from which and the way in which it proposes to seek for the truth in all matters of faith and practice,” that source being the Bible, whose authority is held to be supreme; and that the same is not to be interpreted by tradition, but to be explained by itself, its own language, and connection; which doctrine was the foundation stone of the Reformation. -According to this definition, no one of course could be of the Protestant religion who was not also and first of the Christian religion.
The New American Cyclopaedia, Vol. 18, has the following: “ Protestant, a collective name for a large class of Christian denominations,” and embracing all such denominations, “ except the Roman Catholic and Eastern churches. * * * The name Protestant came early into use as the collective name for all the Christian denominations in Switzerland, France, England, Scotland, Holland, and other countries which proclaimed the Bible to be the only rule of faith.” So in the Penny Cyclopaedia, Vol. 10, is the following: “Protestante general term comprehending all those who, professing Christianity, yet are not in the communion ” of the church of Rome. So the government of England, when under Protestant rulers, passed laws against Jews, pagans, Tui’ks, and infidels; and also against non-conforming Christians, of which they enumerated two classes, — Papists and Protestant dissenters — 4 Black. Com. 52, 57, 58; while the Catholics, when in power, punished in the same way Jews, infidels, pagans, and Protestants. The church, of England was never the Protestant church, but only a Protestant church — one among many branches of the great Protestant division of Christianity. Although the church of England was Protestant, being first Christian and then anti-Roman [57]*57Catholic, yet they forgot to a great extent that the rule of private, independent judgment in matters of religion should apply alike to all; and they tried by legal enactments to make all others conform to their views, just as the church of Rome had done before, and very much as the Puritans on a small scale did afterwards in this country, when they persecuted Roger Williams and Wheelwright, the Baptists and the Quakers.
There was the same reason in all these cases. The church in each case constituted a part of the state. Each had their government or state religious establishment; and, in all such cases, whoever denies the state religion, must be, to a certain extent at least, an enemy of the state.
Nicholson’s Encyclopasdia says, — “ Protestant, a term now applied to all Christians who, in any country or of any sect, dissent from the principles and discipline of the church of Rome.” To the same effect is the New Edinburgh Encyclopaedia, title, “Ecclesiastical History,” chap. 4, and the London Encyclopaedia, title, “ Protestantism.” And the En-cyclopaedia of Religious Knowledge says, — “ Protestant, * * * lias now of a long time been applied generally to the Christian sects of whatever denomination and in whatever country they may be found, which have separated from the see of Rome.” The same work quotes Mr. Chillingworth as saying, — “ The Bible, I say, the Bible only, is the religion of Protestants;” and the Encyclopaedia Americana says,— “ Protestantism : the numberless sects * * * of Protestants all agree * * * in rejecting human authority in matters of religion, taking the Holy Scriptures as the sole rule of their faith and life, and adhering to particular creeds only as expressing the conviction in which all their members agree;” and see Neal’s History of the Puritans, vol. 5, p. 149 and seq.
But let us look to the authority most in use, — the dictionary. Webster’s Unabridged gives, first, the original meaning, “ one who protests,” and mentions those who protested at Spires, &c.; second, especially, “ A Christian who protests against the doctrines and practices of the Roman Catholic church; one who adheres to the doctrines of the Reformation.” See, also, Worcester’s Unabridged Dictionary: “ Protestant,” — no exceptional instances are noticed in which the word was or is ever used to designate any one but a Christian. If such cases existed, where the term has been or might properly be used to denote those who were or are simply anti-Catliolic without regard to whether they were Christian, or pagan, or infidel, such enlarged or exceptional cases would have been given, as they are in all other cases. If the word had, at the time of our revolution, or when our state constitutions were adopted, received any enlarged or peculiar signification; if it was used at that time, or had ever been, to designate or include all who united in opposition to the church of Rome, whether Christian, Jew, or pagan, such peculiar use would have been referred to in the dictionary, and some sentence given in which it had somewhere, or at some time, been used in that sense, or with that significance. But no [58]*58such meaning of the word is given, no allusion made to any such use of it, no instance or sentence mentioned in which it was ever applied to, or used to denote, any religious sect or denomination, or any sect or party whatever, except they were Christians. To be Protestant they must first be Christian.
But what is Mr. Abbott’s view on this subject ? What does he understand by the word Protestant ? His own admissions are certainly good evidence against himself in this case, and probably the other defendants will not complain if we quote his opinion as authority on this subject, since they all (except himself) recommend him in their answer as being “ honest, sincere, truthful, and clear in his expression;” and all admit his power of intellect and learning. In his sermon of March 15, as reported in the Dover Gazette o'f March 20, 1868, which has been proved and introduced as evidence in this case, he states that Christianity is only one among many religions into which the human race is divided, and says, — “ Precisely as Methodism or Episcopacy * * * is only one division of Protestantism, precisely as Protestantism is only one division of Christianity, so Christianity is only one division of religion.” And in another sermon, preached November 15, and reported in the Dover Gazette of November 20, 1868, he says, — “ If questioned whether I regard myself as a Protestant, in the plain meaning of the article, I should certainly say, No! If the word Protestant means all who protest against the authority of the Romish church, then I am, of course, a Protestant; and so is every Jew, Mohammedan, Parsee, or even atheist. But that is not the common meaning of the word, nor the meaning of Art. VI in the bill of rights. Fairly interpreted, the word Protestant covers only those Christians who reject the Romish church, and in that sense I am not a Protestant. In fact, I am a Protestant in no sense in which a Jew is not a Protestant.”
“ Protestants * * * 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. * « * uniesS Unitarians are to be reckoned as of the Christian religion, no Unitarian is eligible to the office of governor, senator, or representative.” The Dublin case, 38 N. H. 459, 573.
Thus we see that the requirements of our constitution, in relation to these officers, demand something more than that they should be simply anti-Roman Catholic. It is no negative qualification that is required, but a positive, an affirmative one. They must be of the Protestant religion. To be of the Protestant religion they must necessarily be of the Christian religion, because a man cannot be a Protestant without first being a Christian. We do not understand by this that such officers must be members of any Christian church, but that they must assent to the truth of Christianity, and thus be nominally Christian. The Encyclopaedia of Religious Knowledge says the term “ Christian,” when used in its more strict, scriptural, and theological sense, denotes “ one who really believes the gospel, imbibes the spirit, is influenced by [59]*59the grace, and obedient to the will of Christ; ” and this it calls the “ sacred and proper ” use of the word. It mentions another use of the word, which it calls the “ political or conventional ” use, which denotes one who assents to the doctrines of the religion of Christ, and who, being born of Christian parents, or in a Christian country, does not profess any other religion, or belong to any other of the divisions of men, “ such as Jews, Mohammedans, deists, pagans, and atheists; ” or, as is said in another part of the article, “ Christians may be considered as nominal, and real.”
It may be proper to remark, that in this opinion we use the term Christian in its “ political and conventional sense,” as above stated, that being the sense in which it is ordinarily used in constitutions, and statutes, and legal documents; in other words, “ nominal Christians.” Mr. Webster thus defines the word “ Christian:” 1. One who professes to believe, or is assumed to believe, in the religion of Christ; especially, one whose inward and outward life is conformed to the doctrines of Christ. 2. One who is born in a Christian country, or of Christian parents. This first definition recognizes the same distinction above stated. First, he gives the political or conventional use, — “ one who professes to believe, or is assumed to believe, in the religion of Christ;” then the special, scriptural, and theological use above mentioned. His second definition is substantially covered by the first part of the first, for those born in Christian countries or of Christian parents are always reckoned and counted as Christians nominally, “ are assumed to believe in the religion of Christ ” so long as they do not profess anything else. This is always assumed until the contrary appears. But when such citizen or child openly renounces and abandons the religión of liis country or his parents, and embraces some other, such as paganism or infidelity, he is not and cannot be any longer assumed to be a Christian. So the children of Protestants are generally reckoned and assumed to be Protestants, and the children of Roman Catholics are assumed to be Catholics, until they profess or claim to be something else. But when the child of Protestant parents professes to believe the doctrines of the church of Rome, and claims to be a Romanist, he cannot any longer be reckoned or assumed to be a Protestant. So, when the child of Roman Catholic parents renounces the religion of his parents and embraces the faith of some Protestant sect, he is no longer counted or assumed to be a Romanist, because he has made an election or choice for himself, and is thenceforth a Protestant or Catholic, a Christian, a pagan, or an infidel, according to that election and choice, and according to his belief, whatever it may be.
It follows that no man can properly be reckoned, counted, or assumed to be a Christian, who does not believe or assent to the doctrines of that religion. But one who has embraced some other system of religious doctrines ; who has elected and chosen not to be, and not to be called, a. Christian ; who has renounced Christianity and openly professed some other faith, — such a man, not being of the Christian religion, could not, be of the Protestant religion.
[60]*60The question next arises whether in Art. VI, in the bill of rights, which authorizes “ the support and maintenance of public Protestant teachers of piety, religion, and morality,” there is anything which was intended to be, or can properly be held, directly or by any implication, to forbid the support and maintenance of any other teachers of religion who may not be Erotestants ? It will be seen at once, by an examination of this article, that there is nothing in it which directly forbids the employment of any person as a religious teacher by those who choose to employ and pay him. So far as any direct provision or statement in that article is concerned, we are clear that no person is prohibited from teaching any religious doctrine he may choose, whether it be Jewish, pagan, or infidel; nor is any person directly prohibited from supporting and maintaining such religious teacher, provided they do it at their own expense, and in a proper way, so as not to disturb the public, or any private citizens, in the similar enjoyment and exercise of their religious rights and privileges.
But, is there anything in this article, or any kindred article, which by any implication can be held to forbid the employment of any religious teacher by any person or persons, or by any town, parish, or religious society whatsover ? It may be important, in considering this question, to consider, first, what natural right is declared in Art. YI of the bill of rights. It declares that “ the people of this state have a right to empower, and do hereby fully empower, the legislature to authorize from time to time the several towns, parishes, bodies corporate, or religious societies within this state, to make adequate provision, at their own expense, for the support and maintenance of public Protestant teachers of piety, religion, and morality.” This right is not conferred by this article, but only declared, stated, asserted, as something inherent in the people — a right they had before this declaration of rights, as much as after. It is one of the “ natural, essential, and inherent rights ” that belong to all men, as declared in Art. II, some of which they may “ surrender up to society in order to secure the protection of others,” as is declared and set forth in Art. III. But it is also one of those rights of conscience which is declared in Art. IY to be not only a natural i’ight, but an “ unalienable ” right; in its very nature, one which cannot be surrendered to government or to society, because no equivalent can be received for it, and one which neither the government nor society can take away, because they can give no equivalent; one of the “ natural, essential, and inherent rights ” which belong to all men, — and not only that, but an inalienable right which a man cannot surrender, and which government or society cannot take from him, as declared in Art. Y. “ Every individual has a natural and unalienable right to worship God, according to the dictates of his own conscience and reason;” and it is also his “ natural and unalienable right ” not to be “ hurt, molested, or restrained in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession, sentiments, or persuasion,” provided lie does not disturb others.
[61]*61The right of the people to employ one kin d of religious teachers in their towns and religious societies is declared in Art. VI, but does the declaring or stating of one natural and inalienable right take away any others rights which are just as inalienable as the one here declared ? The rights of conscience of a Roman Catholic are just as inalienable as those of a Protestant, and the rights of conscience of a Jew just as inalienable as those of a Christian, whether Catholic or Protestant. Neither society nor government can take away either, because in each case the right is declared to be “ unalienable.” Can it be claimed, then, that the asserting,' the stating, the declaring of the existence of one inalienable right, can, by implication, take away from the people another right just as inalienable as the one declared ? That were absurd, impossible. In Art. V there is a broad, a general, a universal statement and declaration of the “ natural and unalienable right” of “every individual,” of every human being, in the state, to make such religious profession, to entertain such religious sentiments, or to belong to such religious persuasion as he chooses, and to worship God privately and publicly in the manner and season most agreeable to the dictates of his own conscience and reason. And if lie do it in a way not to disturb others, that right is without exception and without qualification. And can the assertion of the right of the people to support Protestant teachers of religion, as declared in Art. VI, a right which existed before that declaration was made as much as after, and which would not have been stated or declared unless it had been understood to have existed independent of that declaration, as a natural, essential, and inherent right in every man, be held by implication to take away the rights of the same people to support any other religious teachers they may choose, when their right to do so under Art. V is stated, declared, and asserted, not only as a “ natural,” but as an “ unalienable right ?”
The framers of the constitution were very careful to state and declare the distinction between mere civil or political rights, although they were “ natural, essential, and inherent ” rights belonging to “ all men ” (Art. II), and the “ rights of conscience,” which had the additional quality and excellence of being “ unalienable.” These merely civil or political rights could be surrendered to the government or to society (Art. Ill) in order to secure the protection of other rights, but the rights of conscience could not be thus surrendered; nor could society or government have any claim or right to assume to take them away, or to interfere or intermeddle with them, except so far as to protect society against any acts or demonstrations of one sect or persuasion which might tend to disturb the public peace, or affect the rights of others. Hence the political right of holding or being eligible to the office of governor, councillor, senator, or representative might be surrendered to the government or to society for the better security and protection of the rights of the whole people, and government or society might insist upon this surrender when deemed necessary for the public good, as was the case in Articles XIV, XXIX, XL1I, and LXI, in part second of our constitution.
[62]*62But when the rights of conscience come in question, the right of worshipping God, either privately or publicly; the right of making “profession ” of any religion, privately or publicly; the entertaining of any religious “ sentiments,” and the proper expression, maintenance, and vindication of them, whether in private or in public ; the right of belonging to any “ persuasion,” which word, in the sense in which it is here used, means “ a creed or belief, or a sect or party adhering to a creed or system of opinions ” (Webster’s Diet.) ; the belonging to any sect or denomination, entertaining and professing, and in a proper way striving to maintain and to teach, both privately and publicly, any religious creed or belief whatsoever, — these rights are all held to be “ unalienable,” and are forever secured and guaranteed to “ every individual ” in the state by Art. V in the bill of rights.
Now, it is only in connection with the exercise of some of these rights of conscience that religious teachers are desired or needed, or are supported or maintained. They are to assist the people or some portions of the people in their public worship of God ; to teach and instruct them in the “ sentiments ” and doctrines of their “ persuasion,” or sect or denomination, and the duties connected with and growing out of those doctrines and sentiments. Each religious sect, whether Christian, Jew, Mohammedan, or deist, wishes its own religious teacher to assist in the public worship of God, or publicly to teach the doctrines of its creed ; and so long as they confine themselves to the requirements of Art. V as to disturbing others, and. do not violate any other provision of law, they have an inalienable right to employ and support them, provided they do it at their own expense. The right of the people, which is declared in Art. VI, to support, and to empower the legislature to authorize towns and religious societies to support, teachers of the Protestant religion, is, in substance, only the same right which it is declared in Art. V that “ every individual has a natural and unalienable right” to do, in regard to the teachers of any and all other religions or systems of religious doctrine. People of the Protestant faith would have had just the same religious rights and been entitled to the same religious privileges by virtue of the general provisions of Art. V, that they are declared to be entitled to in Art. VI. There is nothing, then, in Art. VI that can be construed as forbidding, by any implication, the exercise or enjoyment of any right which is declared and asserted as belonging to all men equally in Art. V.
Again: the proviso annexed to Art. VI shows the same fact: “Provided, notwithstanding, That the several towns, parishes, bodies corporate, or religious societies, shall at all times have the exclusive right of electing their own public teachers, and of contracting with them for their support and maintenance. And no person of any one particular religious sect or denomination shall ever be compelled to pay toward the support of the teacher or teachers of another persuasion, sect, or denomination.” It might at first seem that the right which towns, &c., and religious societies are here declared to have, exclusively, of electing their own teachers, &c., is to be taken to mean, by [63]*63reference to the former part of the article, Protestant teachers ; still, any other religious sect or denomination are not obliged to pay for their support, and such other religious sect or denomination may, as a voluntary-association, by virtue of the rights guaranteed to each one of them individually by Art. Y, select their own teacher and pay him ; and this expression, “ any religious sect,” &c., is clearly not to be confined to Protestants, or even to Christians. The expression is,“ anyone particular religious sect or denomination ; ” it is not any sect or denomination of Christians, or of Protestants, but any religious sect or denomination, or any sect or denomination of any religion.
Again : the additional or third paragraph in Art. YI, known as the “free toleration clause,” shows that no exclusive privileges were intended to be _ granted to Protestants, in the matter of the rights of conscience or religious freedom, for it is there expressly provided that “every denomination of Christians, demeaning themselves quietly and as good subjects of the state, shall be equally under the protection of the law; and no subordination of any one sect or denomination to another shall ever be established by law.” By the first clause in this paragraph all denominations of Christians are made to stand equal before the law, which places Roman Catholics on the same footing with Protestants, both being alike Christians, the Roman Catholics being a denomination of Christians; and, finally, it is provided that no subordination of “any one'sect or denomination to another” shall ever be established by law. Notice the three separate expressions in this article: “ Any * * religious sect or denomination,” including sects of all possible religions; next, “ every denomination of Christians,” are made equal; then,no subordination of “any one sect or denomination to another” is to be allowed, — the last clause evidently being intended to include and cover both the other clauses, and including all “ denominations of Christians,” whether Catholic or Protestant, and all “ religious sects,” whatever might be their religion. Observe the distinction here made between “ religious sects,” or “ religious sects or denominations,” and “ denominations of Christians; ” for we shall find the same distinction kept up in the statutes that we shall have occasion to examine.
It will also be seen that there is equal power conferred upon the legislature in relation to any and all other “ religious sects ” which they may think it best to favor by their legislation, in Art. Y of part second of our constitution, as is conferred by Art. YI of the bill of rights in favor of Protestants. “ Pull power and authority are * * given and granted to the said general court, from time to time to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions, and instructions, either with penalties or without, so as that the same be not repugnant or contrary to this constitution, as they may judge for the benefit and welfare of this state, and for the governing and ordering thereof, and of the subjects of the same.” We have already seen that it would not be repugnant or contrary to the constitution for the legislature to give to towns, parishes, bodies corporate, and religious societies, the same powers in regard to [64]*64any or all “ religious sects,” as well as to any or all “ denominations of Christians,” that are conferred, in regard to Protestants, by Art. VI in the bill of rights. The legislature may, therefore, grant to “ any religious sect,” or to “ any denomination of Christians,” whether Protestant or Catholic, the same rights that are granted to Protestants; or, rather, the legislature may grant to towns, parishes, bodies corporate, or religious societies, the power, the right, and the privilege of making “ adequate provision, at their own expense, for the support and maintenance ” of public teachers of any “ denomination of Christians,” whether Romanist or Protestant, and not only so, but of any “ religious sect,” whether of the Christian religion or of any other. Company v. Fernald, 47 N. H. 444, 448; Concord R. R. v. Greely, 17 N. H. 47, 54; East Kingston v. Towle, 48 N. H. 59, 60.
Under these provisions of the constitution of 1783, the law of 1791 was passed, entitled “ An act for regulating towns and the choice of town officers.” Section 10 of this act provided “ that the inhabitants of each town in this state, qualified to vote as aforesaid, * * may * * * grant and vote such sum or sums of money as they shall judge necessary for the settlement, maintenance, and support of the ministry, schools, meeting-houses, school-houses, the maintenance of the poor,” &c. Such towns had the exclusive tight of electing their own teacher or minister (such as the majority might choose), and then they could assess a tax for his payment, just as any other town tax was assessed, and such tax might be collected as other taxes were, of all the inhabitants of the town, unless there were some who were of some “ particular religious sect or denomination,” differing from the public teacher or minister of the town ; and when that fact was ascertained, such persons were to be excused from paying such minister tax, by the provisions of the constitution.
At the time of the adoption of the constitution of 1783, there were but few persons of any particular religious sect or denomination except the Puritans or Oongregationalists. There were a few of the Church of England, or Episcopalians, a few Quakers and Baptists, and perhaps a few of the Scotch Church, or Presbyterians ; so that for a time the taxes voted and assessed by the towns for the support of the ministry were collected of the inhabitants generally, with the few exceptions above stated, just as the taxes for the support of schools and other public purposes were collected. And these circumstances remained, with very little change, down to the time of the adoption of the constitution of 1792, which was the same as that of 1783, so far as all its provisions relating to the rights of conscience were concerned, and all the other provisions we have been considering.
But soon after this many new religious doctrines were broached, and new opinions disseminated, and every new doctrine and opinion had its advocates and its followers, few and scattered at first, but gradually, increasing in numbers and influence. The believers in these new doctrines assumed names as new in some cases as the doctrines which they believed, and they were not for a time recognized as numerous [65]*65enough, or of sufficient importance, to be considered as particular religious sects or denominations, and the majority for a while successfully refused them such recognition as religious , denominations. But in 1804 the Freewill Baptists obtained an act of the legislature as follows:
“ Resolved, That the people of this state, commonly known by the name of the Freewill Anti-Pedobaptists’ Church and Society, shall be considered as a distinct religious sect or denomination, with all the privileges as such, agreeable to the constitution.” N. H. Laws (1815) 46.
This had the desired effect. They then had a legal name and a legal existence, as a particular religious sect or denomination, which compelled recognition, and excused them from the payment of taxes for the support of the preaching of any other denomination.
In 1805 the Universalists obtained a similar act, constituting “ all the people of this state known by the name of Universalists ” “ a distinct religious sect or denomination from any other and in 1807 the Methodists obtained a similar act, and in both these cases with similar results. Id. 46.
These men had been taxed before to support the religious teachers or preachers which the several towns had elected and employed,, not because they were understood to be Congregationalists or anti-Congre-. gationalists, but simply as citizens of the town, all of whom were made liable to support the preacher chosen by the town, unless they could excuse themselves under the article in the bill of rights on the ground that they belonged to some “ particular religious sect or denomination” different from that of the town preacher. It will be observed, that to be a distinct religious sect or denomination, it was not necessary that they should be Protestants, or even Christians. If they were “ a religious sect,” that was enough to excuse them from paying the religious teacher of the town; and then they might voluntarily unite and support any religious teacher they chose, at their own expense”, and might meet for public religious worship, preaching, or religious teaching, without regard to the doctrines taught, provided they did it conformably to the laws. They must not be guilty of blasphemy ; they must not teach or Countenance any infraction of the laws ; they must not disturb the public peace, or disturb others in their worship. Within these limits, Art. Y in our bill of rights secures to every man in the state entire freedom in his “ religious profession, sentiments, or persuasion,” and the right to worship God, privately and publicly, according to the dictates of his own conscience and reason.”
In 1819 an act was passed in amendment of the law of 1791, — 2 N. H. Laws (of 1824) 44, — by which so much of that act was repealed as authorized towns to elect or support religious teachers of any kind, Protestant as well as others; and it was provided “ that each religious sect, or denomination of Christians in this state, may associate and form societies, may admit members, may establish rules and by-laws for their regulation and government, and shall have all the corporate [66]*66powers which may be necessary to assess and raise money by taxes, * * * and to collect and appropriate the same for the purpose of building and repairing houses of public worship and for the support of the ministry,” &c. No person could be compelled to join or support, be classed with or associated to, any congregation, church, or religious society, without his express consent first had and obtained ; and it was provided that any person might cease to be a member of such society or association by leaving a written notice with the clerk, &c. It will be observed that the legislators of 1819 were careful to adopt the precise language of the constitution into their act. Not only “ each denomination of Christians,” including Roman Catholics as well as Protestants, but also “ each religious sect,” may associate and form religious societies, with power to assess and collect taxes, and to appropriate the same for religious purposes.
So the act of 1827, entitled “ An act empowering religious associations to assume and exercise corporate powers ” — N. H. Laws (1830) 462 — provided “ that the members of any religious sect, or denomination of Christians in this state, may associate together and form a society,” with the various powers therein stated, among which was the power to hold real and personal estate “ for the purpose of erecting and repairing a house of public worship, * * * and for supporting the ministry in such society.” Here is a very slight variation in the use of words, but evidently without any intent to change the sense. The language is a little more general. “The members of any religious sect,” instead of “ each religious sect; ” or, the members of any “ denomination of Christians,” instead of each “ denomination of Christians.” But in the revision of 1842 it was thought useless to keep up these old constitutional formulas any longer, and so they were all abandoned, and instead of so much circumlocution, a simple formula was adopted, which covers, and was intended to cover, at least, all the ground which was covered by the former expressions, and perhaps more. “ Any persons ” may associate themselves together, form a religious society, and become a body politic and corporate; may build • and repair churches, and support the ministry in such society. Rev. Stats., chap. 144, sec. 1. The same expression is used in the General Statutes of 1867. *“ Any persons may associate together * * as a religious society,” &c. Gen. Stats., chap. 139, sec. 1.
Perhaps the laws of 1842 and of 1867 may, if the question ever arises, be held to go further than the laws of 1819 and of 1827, in this, that the religious societies formed under them may perhaps be held to be divested of their sectarian or denominational character, and to stand solely upon the ground of bodies politic and corporate, while societies, organized under the laws of 1819 and of 1827, were recognized as sectarian or denominational societies, notwithstanding such organization, these acts only authorizing religious societies to be formed of such sects or denominations; and, instead of losing their identity in the body corporate, their peculiar identity as sectarian and denominational societies is carefully retained, while they are only au[67]*67thorized to exercise or assume certain special and limited corporate powers. While the acts of 1819 and of 1827 thus recognize and carefully retain the sectarian or denominational qualities and characteristics of all religious societies formed under those acts, the act of 1819 provides that “ each religious sect, or denomination of Christians * * * may associate and form societies, * * * and shall have all the corporate powers which may be necessary ” to assess and collect taxes, and appropriate the same to the building of meeting-houses and the support of the ministry; while the act of 1827 is entitled “ An act empowering religious associations to assume and exercise corporate powers,” — showing a design to leave the religious societies with all their sectarian and denominational features, but to engraft upon them such powers, simply, as were necessary to enable them to support religious teachers, while the laws of 1842 and of 1867, in terms, at least, ignore any such distinction.
Under these provisions of the laws of 1842 and of 1867, there can be no doubt that “ any persons,” of any religious creed or sect, may form a religious society, and may elect such religious teachers as they choose, and support them at their own expense, so long as they keep within the restrictions of the constitution in regard to disturbing others. What is said-in the opinion in the Dublin case, 38 N. H. 573, that unless Unitarians are Christians they could not form a religious society under the statute, was evidently an error, and it is apparent upon examining the authority on which it is based. No reference is made there to the law of 1842, but the authority quoted purports to be from the acts of 1819 and 1827, which are there said to authorize “ members of any sect or denomination of Christians ” to form religious societies. The conclusion there reached would undoubtedly be correct, if the authority of the acts had been such as the quotation would imply. But the authority of those acts is nowhere limited to “ members of any sect or denomination of Christians.” The scope of those acts is much broader than that, and includes all “ religious sects” as well as all “ denominations of Christians.” The conclusion is wrong, simply because it is based upon wrong premises; while the conclusion that, under our constitution, none but Christians can hold the office of governor, senator, or representative is right, because the words of the constitution make evei’ybody ineligible to those offices except Protestants, or those who are “ of the Protestant religion ; ” and to be of the Protestant religion they must be of the Christian religion.
So much of the argument of the plaintiff’s counsel as is based upon the assumption that none but “ members of any sect or denomination of Christians ” can unite and form a religious society, under the acts of 1819 and of 1827, is not well founded, since those acts, as we have seen, authorize the members of any religious sect, or denomination of Christians, thus to unite and form societies, and not the members of any sect or denomination of Christians only.
But even suppose it had been so, that none but Christians could form such a society, under the laws of 1819 and of 1827, that would include [68]*68Roman Catholics as well as Protestants, so that, under either construction, it would show, conclusively that the legislatures of both those years understood that they were not restricted exclusively to authorizing the support of Protestant religious teachers only, but that they might as well make provision for Roman Catholic teachers of religion as any other. It would show that they understood the constitution as empowering them to authorize Roman Catholics to form religious societies, and elect and support their own religious teachers, as well as Protestants, if they thought it best to do so. But they understood, as the fact was, that the constitution had declared these rights of conscience to be inalienable; that they could neither be surrendered, nor taken away, nor impaired, and therefore they authorized any religious sect, as well as any denomination of Christians, to form religious societies.
When the Freewill Baptists, the Universalists, and the Methodists wished to get relieved from that part of the town taxes which went to pay the town preacher, and when the town authorities would not excuse them on the ground that they were a distinct religious sect, because they were not of any sect or denomination which had been hitherto recognized as such, but were what were then sometimes termed “ new lights,” all they had to do was to get the legislature to enact or resolve that they constituted “ a distinct religious sect or denomination,” and they could shield themselves under the provisions of the constitution. They did not need to be Protestants or Christians, or to be declared to be such, in order to be entitled to that protection. It was enough if they were simply a “ distinct religious sect.” No one had any right to ask the question what their religion was. That was one of their rights of conscience, to believe and to profess, and properly to maintain and teach, any religion, any sentiments, any belief, any persuasion, which their conscience and reason might dictate to them; and this right was not only a natural, but an inalienable right.
A comparison of our constitution of 1788 with the Massachusetts constitution of 1780 will tend to show that the framers of ours did not intend, by Art. VI in the bill of rights, by any implication, to forbid the legislature from authorizing towns or religious societies to support other teachers beside Protestant, if they chose to do so at their own expense. It is a matter of history, that one constitution was submitted to the people of New Hampshire in 1779, which failed to be adopted. Another was submitted in 1781, which was also rejected; but the same convention continued its sessions, and remodelled it very materially, and sent it out again, and this amended constitution was the one which was finally adopted in 1783. Belknap says that this convention had more advantage than the former, “ the neighboring state of Massachusetts having digested and adopted a constitution which was supposed to be an improvement upon all which had been framed in America.” Farmer’s Belknap’s Hist, of N. H. 383, 384, 389. The Massachusetts constitution, in Art. Ill of the bill of rights — Gen. Stats. Mass. 14 — asserted and declared “ the right of the people to invest tlieir legislature with power to authorize, and the legislature shall from [69]*69time to time authorize and require, the several towns, parishes, precincts * * or religious societies to make suitable provision at their own expense for the institution of the public worship of God, and for the support and maintenance of public Protestant teachers of piety, religion, and morality, in all cases where such provision shall not be made voluntarily. And the people * * * have also a right to and do invest their legislature with authority to enjoin upon all the subjects an attendance upon the instructions of the public teachers aforesaid, at stated times and seasons, if there be any on whose instructions they can conscientiously and conveniently attend.” Their legislature must not only authorize, but require, the towns, &c., and religious societies, to make provision for public worship and the support of Protestant teachers, that is, to enforce its performance when not done voluntarily ; and the legislature might enjoin, and did enjoin, all subjects to attend upon the instructions of said Protestant teachers.
But the framers of our constitution, although they had before them this model constitution, inserted all the religious tests they" thought necessary in connection with the civil rights of holding certain offices; but when they came to the rights of conscience, they boldly declared their inalienability, and only simply authorized the support of Protestant teachers of religion. They did not require it, or require that any religious worship be sustained or supported ; nor did they require anybody to attend upon the instructions of these teachers or any others, and provided that no person of any different sect or denomination should be compelled to pay for their support. They evidently needed and desired to say something in favor of the Christian religion and the Protestant religion, in order to meet the expectations of the people in those times, but they said as little as they well could about it, so far as it was connected with the rights of conscience, and religious toleration and freedom. They did not intend, in Art. VI of the bill of rights, to confer, or grant, or assert, any rights that should in any way conflict with the broad and just declaration of the natural, the universal, and inalienable rights of conscience, as enunciated and set forth in Art. V.
We have before alluded to the fact that this society in Dover, in selecting its name, had in view two separate and distinct objects : one, to adopt a name as a corporate body under the statute, — a name in which it could sue and be sued, and transact business as a body corporate ; another object was, to select a name which should be descriptive of the “ particular sect or denomination ” of which its members were to consist, which should indicate the particular religious creed or belief of its members, and thus designate them as a “ particular sect,” which had been recognized in the constitution, and upon which certain rights had been conferred in Art. VI in the bill of rights.- A name was selected which accomplished this purpose, — one which indicates and was designed to indicate the fundamental .doctrines and tenets of the sect, as well as to furnish a corporate name.
This would probably be sufficiently indicated by the name itself. The people commonly known as “ Freewill Anti-Pedo Baptists,” and [70]*70the people known by the name of “ Universalists,” and the people known by the name of “ Methodists,” had each been declared distinct religious sects under the constitution, and were sufficiently described by those names to distinguish them as religious sects, not only from each other, but from all other religious sects or denominations then existing or known, each of which was equally well known by a name which of itself was a perfect and’sufficient description of the fundamental doctrines of the sect thus named, so as to distinguish it from any and all other religious sects or denominations, so that it might assert its rights under the constitution to all the privileges of a distinct religious sect. This practice of designating religious sects by a name that should so describe their creed or association as at once to distinguish them from all other sects, was kept up after the act of 1819 took effect, the same as before; so that often, perhaps generally, the name assumed by religious societies, as in this case, was selected with reference not only to obtaining a corporate name, but also with reference to describing the sect, or of indicating to what sect or denomination the society belonged, by the use of a name which should describe the fundamental doctrines and peculiarities of such sect or denomination. Such was the fact in the case before us, and we think the name itself is a sufficient indication of that fact. But whether this be so or not is immaterial, since the evidence in this case makes it entirely conclusive that such was the intent of the founders of this society, which intent and purpose were well known to the proprietors who put the meeting-house in this case into the hands of trustees, to be forever under the absolute control of said society. By assuming that name, the society and its original members understood, and designed and intended that everybody else should understand, that they were and were to be a society of Unitarians and not of Trinitarians, of Christians and not of infidels; and this trust was established, and the use, custody, and control of the house were placed under the direction of this society, with special reference to the belief, the sentiments, and the doctrines of the society, as belonging to a distinct religious sect or denomination as indicated by its name. All this is abundantly shown by the evidence in the case, if such evidence were necessary.
In numerous English cases the questions have been discussed as to religious charities and trusts, and what doctrines were fundamental in religion, and as to whether the private religious opinions of the founder of a charity or trust were competent to be proved in evidence in order to aid in giving construction to the words of a will or deed by which a charity or trust is created. Some of these are Attorney-General v. Pearson, 3 Meriv. 353; S. C. 7 Sim. 290 ; Attorney-General v. Drummond, 1 Con. & Law 264 ; Drummond v. Attorney-General, 2 Eng. L. & Eq. 15 ; Glasgow College v. Attorney-General, 1 House of Lords’ cases 800 ; Attorney- General v. Wilson, 16 Sim. 210; Attorney-General v. Gardner, 2 DeGex & Smale 102; Attorney-General v. Munroe, 2 DeGex & Smale 122; Attorney-General v. Murdock, 7 Hare 445; S. C. 12 Eng. L. & Eq. 83; Attorney-General v. Hutton, 7 Irish Eq. 612 ; At[71]*71torney-General v. Shore, 7 Sim. 309, note; S. C. 11 Sim. 592; S. C. 16 Sim. 210. This last case, known as the Lady Hewley’s charity, was finally carried to the House of Lords — see 9 Clark & Finn. 355. In this case the former cases are reviewed, and. the results and conclusions are stated in 1 Greenl. Ev. (4 ed.), sec. 295, note 3. The principles involved in that case and the earlier English cases cited have been incorporated into and made a part of our American decisions, as far as they are material in this case, as we shall see from an examination of the American authorities.
It was early held in New York, by Nelson, J., in Field v. Field, 9 Wend. 395, 400, 401, that a fund created by a religious society, for the instruction and education of children in the faith and doctrine of the society, as professed at the time of the creation of the fund, cannot be diverted from its original object and destination ; and that if a diversion be made or attempted, a court of equity will interpose and correct the procedure, but that a court of equity will not attempt to enforce the peculiar faith or doctrines of either party, where there is a schism in a religious society, though their existence and nature may be incidentally involved in an inquiry relative to the rights of property belonging to such society ; all that the court does is to enforce the observance and execution of an ascertained trust. To the same effect are Lawyer v. Cipperly, 7 Paige 281; Gable v. Miller, 10 Paige 627 ; Miller v. Gable, 2 Denio 492; People v. Steele, 2 Barb. 397.
In Gable v. Miller, 10 Paige 627, it is held that the court of chancery has jurisdiction to prevent a diversion of the temporalities of a church from the purposes for which they were devoted by the donors, and to require them to be appropriated to the support of that form of worship and to the teaching of those doctrines for which they were originally intended. Walworth, Chancellor, in the opinion, p. 647, says, — “ 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. Withered, 3 Paige 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 such jurisdiction.”
And in Miller v. Gable, 2 Denio 492, 548, which was an appeal from the court of chancery to the court of errors, it is held that when property is conveyed to a religious corporation to promote the teaching of particular religious doctrines, and the funds are attempted to be diverted to the support of different doctrines,-it is the duty of a court of chancery, under its general jurisdiction over trusts, to interpose for the purpose of carrying the trust into execution according to the intention of the donors; and that it was no reason why the court should not thus interfere to enforce such a trust, that a majority of such society, or the trustees elected by such majority, are in favor of such diversion of the trust from its original purpose; but the court would in such case be bound to interfere upon the complaint of a minority of said society [72]*72against the majority. It was also held, that in ascertaining the purposes for which property conveyed to a church was intended to be devoted, the language of the conveyance, if clear and unequivocal, is conclusive. If the language is indefinite, extrinsic evidence, such as the tenets held by the donor, or the faith then actually taught by the donees, and the ciz’cumstances under which the gift was made, and that the denominational name of a religious corporation or society to which a donation is made, and the doctrines actually taught therein at the time of the gift, may be resorted to, in order to limit and define the trust in i’espect to doctrines usually considered fundamental, such as those in dispute between Trinitarians and Unitarians, but not as to lesser shades or points of doctrine not deemed fundamental. Gardiner, Pz'est., says he does not sympathize with the doubt expressed by the chancellor in The Baptist Church v. Witherell (which he has ceased to entertain), as to whether the trustees of a religious society are not independent of all control in inference to doctrine and modes of worship.
In The People v. Steele, 2 Barb. 397, it was held that the intention of the donors is the criterion by which to determine the .purposes to, which the property of a church has been dedicated ; that if the grant expresses that intention clearly and unequivocally, that must govern. But where the conveyance is merely to the religious corporation by name, with no other designation of its purposes or trusts, the corporate or denominational name, in connection with the contemporaneous acts of the corporators, may be a sufficient guide as to the nature of the trust, and that it is no excuse for the tz-ustees of i’cligious corporations, for any aberration from the line of their duty, for such officers to say that they have been directed to it, or are sustained in it, by a majority of those to whom they owe their appointment. And see Lawyer v. Cipperly, 7 Paige 281; Bowden v. McLeod, 1 Edw. Ch. 588; Kniskern v. Lutheran Churches, 1 Sandf. Ch. 439; Gibson v. Armstrong, 7 B. Mon. 481; Trustees, &c., v. Johnson, 1 Watts & Serg. 1, where it is held that, where there was no express condition to that effect, it might be a breach of the compact of association for the majority of a congregation to go over to a sect of a different denomination, though it were different only in name. See Scott v. Carle, 9 B. Mon. 17 ; Inhabitants of Princeton v. Adams, 10 Cush. 129, 132 ; 2 Story’s Eq. Juris., sec. 1191, a and note ; Hill on Trustees, *467 and note.
In Robertson v. Bullions, 9 Barb. 64, 132, 133, after a very careful review of all the authorities, both English and American, the court came to the conclusion that a court of equity had power, upon the application of a portion of the corporators in a religious society, to restrain' the trustees frozn applying tlie temporalities of the corporation to the support of a person as minister who has been deposed from the ministry by the proper ecclesiastical tribunal, and has not been restored. That the support of particular doctrines, or systems of worship or government, or a connection with some particular church judicatory, may be made a condition in a grant or donation to a religious [73]*73society; but if no such condition be expressed, none will be implied, except as to cardinal points; but that the corporate or denominational name may indicate the nature of the trust, so far as it respects doctrines deemed fundamental; and that, if a society of one denominanation become incorporated, it may be considered as designed and constituted for the purpose of advancing the vital doctrines of the Christian faith, professed by that denomination ; and that the trustees may be restrained from applying the property or the use of it to the promotion of tenets or doctrines clearly opposed and adverse to the fundamental principles of the faith and doctrine professed by the church or society at the time "the trust was created.
This last case was carried to the court of appeals, and it was there held that religious societies, incorporated under the statute of that state, were to be regarded merely as civil corporations; and that when, in a conveyance in trust for religious purposes, the use is expressed in general terms, it cannot be inferred from the religious faith of the grantor that it was intended to limit the use to the support of the particular doctrines in which he believed, but that, where the language creating the trust is ambiguous, evidence of the faith of the donor, like that of surrounding circumstances, may be received to aid in the construction ; and that, in a religious society, the majority of the corporators, without regard to their religious tenets, are vested "with the entire control over the revenues of the corporation. 11 N. York (1 Kernan) 248, 267. In the Parish of Bellport v. Tooker, 29 Barb. 256, 265, the same doctrine is maintained. One fact, however, appears, which it may be well to note, and that is (p. 264), that the religious society in that case was incorporated without any mention, or assumption, of any denominational name or preference.' The name of the society was simply ££ The Parish of Bellport.” This case was carried to the court of appeals, and is reported as Petty v. Tooker, 21 N. York (7 Smith) 267, where it is held that corporations, formed under section 3 of their act for the incorporation of religious societies, have no denominational character, and none can be engrafted upon them; and that persons otherwise qualified do not lose their right as corporators to vote at elections, by reason of their having individually or collectively renounced the doctrine and ecclesiastical government professed and recognized by the religious body in whose worship and services the corporate property had always been employed, and that the title of trustees to office and to the control of the corporate property is not impaired by any aberration in doctrine or church government on their part, or on that of those by whom they are elected ; and that the grant of corporate property must be made upon some express condition, in order that its use may be restricted to the propagation of any particular form of religious belief or ecclesiastical organization; — and see Burrill v. A. R. Church, 44 Barb. 282, in which the same view is taken as in Petty v. Tooker.
So far as the case of Petty v. Tooker is concerned, we see no particular fault to find with the decision, as based upon the facts stated. The [74]*74parish was incorporated without assuming any denominational name, without the mention of any such name in connection with the act of incorporation, and there was no trust created in that case except the legal duty which trustees, as officers of the corporation, owed to the corporation. Here, so far as appeared, was an unsectarian society, which had chosen officers as^any other legal society might do, who had simply their duty to do to the society which had elected them. But in the case we are considering, the deed is to the trustees of this society, not for the use of the society, but for the use of the proprietors of the meeting-house; and said use of the house and its general custody were to be under the control of this Unitarian society of Christians. The deed might just as well have been given to the trustees of the first savings bank of Dover, and if subject to the same use, and that use had beeu made subject to .the same control, the society would have just as much interest in the meeting-house as it now has. The society takes nothing under this deed, except that they are to have the control of the use of the house; and that might have been given to them just as well, and just as effectually, if the deed had been given to the trustees of the bank instead of the trustees of this society. The duty of the trustees, as such, to the society that elected them, has nothing to do, and no connection, with their duty as trustees under this deed. They must hold the meeting-house just as anybody else would under a similar deed, and that had nothing to do with the discharge of their duty to the society as trustees.
We have seen that the decisions in Robertson v. Bullions, in the court of appeals, and Bellfort v. Tooker, in the supreme court, and the same case as Petty v. Tooker, in the court of appeals, and the other cases which follow those authorities, are all based upon the peculiar provisions of the statute of New York in relation to corporations. It is held that under that statute a religious corporation cannot be sectarian or denominational. But not so the statute under which this society was formed. The law of this state, passed in 1827, under which this society was formed, authorized “the members of any religious sect, or denomination of Christians ” in this state, to associate together and form a society. So, by the act of 1819, “ each religious sect, or denomination of Christians” in this state, may associate. Was it understood that “the members of any religious sect,” or that “each religious sect,” when thus associated together, were at once to lose their sectarian and denominational .characteristics ? Were not the societies thus formed for the very and sole purpose of enabling the sect or denomination the more successfully to prosecute its peculiar sectarian work ? No one was authorized in these statutes, in terms, to associate and form erligious societies, but the different religious sects, and denominations of Christians ; and if they were at once by such association, under a general law, to lose their sectarianism and denominationalism, and no longer to be the sects or denominations they were before, then the effect of forming religious societies was certainly very different from what anybody supposed or intended. But that was not the design. [75]*75The sects were to remain sects after such association, the same as before. The different denominations of Christians were to retain all their denominational peculiarities. They were not to lose their identity by such association, but were to be different sects and denominations still. When they associated themselves together to form a religious society, they might keep their old denominational name if they chose, and it would not lose any of its meaning, or any of its force, as descriptive of the tenets of the sect; or, they might adopt a name that had no reference to the sectarian doctrines or creeds, as in the case of “ The Parish of Bellport.” By the force of our- statute, these religious sects, by associating together as religious societies, acquired the powers and rights of a corporation, so far as they were necessary to enable them to raise money to support a religious teacher and to build a meeting-house, without losing any of their rights or powers as a religious sect. All these they retained, the same as before. So that our statute had no such effect as the act in New York had upon which those decisions in Bellport v. Tooker and Petty v. Tooker, and others of the same kind, were founded. Those decisions can, therefore, be of no weight as authorities in this case.
Under the constitution, religious sects or denominations were recognized, which were then only distinguished by their names, the names being sufficiently indicative of the doctrines of the sect: “ Roman Catholics ” was the name of one sect, “ Presbyterians ” of another, “ Quakers ” of another. A society which should take for its name “ The First Society of Roman Catholics in C,” or “ The First Society of Presbyterians in C,” or “ The First Society of Quakers in 0,” would be understood as made up of persons of the sect which the name of the society indicated; and if a donation of a church had been made to certain persons in trust for a certain use, which use was to be forever subject to the control of The First Society of Roman Catholics in 0, or of The First Society of Quakers in 0, the trust would have been held to be subject to the control of such of the society, and such only, as adhered to the fundamental doctrines of the society as indicated by the name, even though they might be a minority of those who at first were numbered among its members ; that a majority of the original society, if they had abandoned the principles and doctrines of the sect, would not be known as a society of Romanists or Quakers, for the purpose of administering such trust. So of the Methodists, after, by special statute, they were recognized and declared to be a distinct religious sect.. The name indicated the belief of the sect. The name in that case-would also indicate that the church polity, or plan of church government, was different from that of the Congregationalists, just as the-term Episcopalian or Presbyterian would indicate, in each, a different polity from the Congregational; and after the acts of 1819 and 1827, which took away from towns all power to act as parishes or to support religious teachers, and gave to the different religious sects, and denominations of Christians, and to them alone, the right to form religious societies, they retained all the powers and rights which they had. [76]*76before as sects, and acquired the additional powers of a corporation for certain limited purposes.
While the authority was granted to towns by the legislature to raise money to support the ministry and to build meeting-houses, these towns, being simply municipal corporations, could not be made sectarian or denominational; while under the acts of 1819 and 1827, as we have seen, all religious societies were, and were to be assumed to be, sectarian and denominational; and they might adopt a sectarian and denominational name, which should describe and declare their faith, and at the same time answer as its corporate name; or they might adopt a general corporate name merely, having no reference to the faith or doctrines of the sect to which they belonged, and then they would, of course, make a declaration of their doctrines, or creed, or confession, in their articles of association. It is not material in this connection to inquire whether religious societies, under our Revised or General Statutes, retain their sectarian and denominational character, which they had, and were presumed to have, under the acts of 1819 and 1827.
Under this condition of things, this society was formed by a distinct religious sect, by a particular denomination of Christians, and, instead of assuming a name which should merely answer as a corporate name in which to transact business, but which should not have any reference to the peculiar sect that had formed the society, they assumed a name which, while it answered for a legal corporate appellative, should also express, as definitely as language could be made to do, the peculiar creed or doctrines of the sect or denomination which formed the society. It was to be a “ Unitarian society of Christians.” Both these words in the name are as strongly expressive of the fundamental doctrines of the sect as words could be; and it would be assumed in such a case, without any evidence, that the name was adopted for the purpose of expressing the peculiar and fundamental doctrines of the sect that formed the society; and that this would be so understood by everybody.
Therefore, when a trust was created in certain persons, for the benefit or use of this society, or for the use of others, to be under the control of this society by its denominational name, by its distinctive sectarian appellative, it must be understood that the donor or founder of the trust had in view that fact; and that when he constituted his trust or use, and made it subject to the control of this society, he had in view, and referred more particularly to, its sectarian and denominational qualities than to any other. It was only as a Unitarian society of Christians that the control of the use of this house was placed in their hands. This trust was reposed in them simply because they were Unitarian Christians, and not because they were an incorporated society. It was in them in the character of a distinct religious sect, a particular denomination of Christians, that the confidence was placed, and not in them merely as members of a civil corporation. Now, suppose such a society should, in the course of time, become equally divided; [77]*77just half its members should secede from the faith and doctrines of the sect which formed the society, and the other half should adhere to such faith and doctrines, and each half should separately undertake to control the use of the house according to its own religious views, and the views of the two divisions were antagonistic, and the court were called on to enforce the trust: can there be a doubt that equity would require that the control of the house should be given to the division which adhered to the original faith ? Would not that be carrying out the wishes and intentions of the original founders of the trust ? But, suppose that the party which had seceded from the faith of the denomination should outnumber the other by one or more, could that change the reason of the case or its controlling equities ? Would it not be the duty of a court of equity to look beyond the mere form of the thing to its material substance, and to say, in such a case, that the portion "of the religious society, who adhered to the faith of the sect that founded the society, were entitled to control the use of the house, rather than the portion who, being still members of the society in form, had renounced the faith of the sect which formed, and whose fundamental doctrines had given name to, the society ?
We do not deny the right of individuals to change their religious faith, nor the right of members of religious societies to do the same, nor the right of whole societies as a body to apostatize from their original faith, and adopt a new one antagonistic to the first. This is but exercising those very rights of conscience which are asserted in Art. V of the bill of rights as the inalienable birthright of every inhabitant of the state. Nor is it the province of the court to decide or to inquire which faith is most consistent, or what doctrines are true or what are false; and it seldom becomes necessary for the court to turn its attention to theological studies in order to decide questions of law, except in cases like the present, where they are called upon to see that a trust is administered according to the intention of the original founders of such trust. If a trust is created or a charity given for the benefit or use of a sectarian society by its sectarian and denominational name, it is to be presumed that it was intended to be used to advance the peculiar doctrines of that sect; and if a meeting-house is conveyed in trust for certain persons, to be under the control of a society of Christians, it would be the duty of the court, upon proper application and proofs, to see that the house was controlled by a society qf Christians, and not by Mohammedans, pagans, or infidels, even though a majority of the original society have apostatized from the faith of the sect which formed the society.
We find in this case, upon the evidence, that the defendants, who claim to be a majority of the society, had in fact, most of them, seceded from the doctrines and faith of the original sect which founded this society, and were no longer, in any proper sense of the term, “ Unitarian Christians.” Whether they had not seceded from the society altogether, by uniting with an opposition society and acting in hostility to the sect and denomination which at first instituted the religious soci[78]*78ety to which they claimed to belong, and by other acts, may be a question, but one not now material to be considered in this particular connection.
We have seen that the decisions in Robertson v. Bullions, 11 N. Y., and Petty v. Tooker, 21 N. Y., are not authorities here, because they are based upon the special provisions of the statute of that state, which provisions are not like those of the statute of this state. In fact, we do not find that these decisions in New York have been followed in other states, except in cases where there was a statute like that in New York. The case in 11 N. Y. was decided in 1854, and that in 21 N. Y. in 1860. In 1862, Winebrenner v. Colder, 43 Penn. State 244, was decided, where the church by its charter was declared to be independent, and its polity was Congregational; but the constitution of the denomination provided that no person should be accepted as a minister without a regular license, which was to be annually renewed by the eldership of which he was a member. Upon a bill in equity by the minority (who were willing to submit to the eldership and receive the minister sent them, by it, and to conform to the discipline of the denomination) against the majority, for an injunction to restrain them and their minister from preaching or teaching in, or in any manner using, the church edifice, — Held, That the church property was hold in trust for the use of such of the congregation as adhered and were willing to submit to the regular order and discipline of the denomination; also, that a majority of the congregation, who had made use of the regular corporate forms to institute an organized resistance to the legitimate authority of their ecclesiastical superiors, and had instituted a minister as their pastor who had been expelled by the denomination, was not the true congregation.
In Ferraria v. Vasconeellos, 31 Ill. 25, decided in 1863, the court were unanimous in opinion; but opinions were delivered by several members. Caton, C. J., said, — “As a matter of law, as I understand the decisions, the rule is, that, where a church is erected for the use of a particular denomination or religious persuasion, a majority of the members of the church cannot abandon the tenets and doctrines of the denomination, and retain the right to the use of the property ; but such secessionists forfeit all right to the property, even if but a single member adheres to the original faith and doctrine of the church. This rule is founded in reason and justice, and is not departed from in this case. Church property is rarely paid for by those alone who there worship, and those who contribute to its purchase or erection are presumed to do so with reference to a particular form of worship, or to promote the promulgation or teaching of particular doctrines or tenets of religion, .* * * and to pervert the property to another purpose is an injustice of the same character as the application of other trust property to purposes other than those designed by the donor. Hence it is, that those who adhere to the original tenets and doctrines, for the promulgation of which a church has been erected, are the sole beneficiaries designed by the owners ; and those who depart from and abandon these tenets and doc[79]*79trines cease to be beneficiaries, and forfeit all claim to the title and use of such property. These are the principles on which all these doctrines are founded.” The same views are expressed in Brunnenmeyer v. Buhre, 32 Ill. 183.
In Attorney-General v. Moore's (Executors, 19 N. J. Eq. (4 C. E. Green), decided June, 1868, a distinction is made between a religious charity and an educational or eleemosynary charity, and though in the latter cases they held the name of the society to be immaterial by a divided court of seven against six, yet they all admit and claim that in the former case, — that of a religious trust, — the doctrines of Miller v. Gable, 2 Denio 492, and The People v. Steele, 2 Barb. 398, were correct, and should be carried out; and that the remark of the court there made, that, in a grant to a religious corporation, “ its distinctive denominational name, as descriptive of its ecclesiastical connection, was indicative of the particular religious tenets designed to be propagated, is applicable to societies established for religious purposes.” Bedle, J., in the dissenting opinion of the minority, says, — “ Names, like titles to acts of the legislature, may denote character and quality, or they may indicate but little. * * Churches are often named after saints, and no denominational character can be deduced from-it. But when, in addition to that, a peculiar denominational name is .added, as, for instance, St. James’s (Roman Catholic Church, no one could hesitate to believe that it meant what it said ; that it showed, as plainly as words could make it, that the church which bore that name was a Roman Catholic church; and so of all other churches of any sect or aeed. The name, whether Baptist, Episcopalian, Methodist, Presbyterian, or whatever religious sect it may be, is always considered as showing the denominational character of the church; and no one could reasonably think otherwise. Denominational names, so far as common observation goes, are only used to denote character, or some quality, when applied to church organizations.”
We see very little evidence of any disposition to follow the decisions made by the New York court in Petty v. Tooker, 21 N. Y., and similar cases in that state, in the courts of any other states, unless it may be in some that have statutes similar to that of New York; and we think those decisions are not to be considered authorities here.
There is a class of cases, like Wiswell v. First Congregational Church, 14 Ohio St. 32, where it is held that, in case of a division of a religious corporation, where both parties still adhere to' the tenets and doctrines and discipline of the organization, the property should be divided between them, in proportion to their numbers at the time of the separation. See Niccolls v. Eugg, 47 Ill. 47. No one can find any fault with that arrangement of the property in such cases; but the principle of those cases has no application here, for here both parties do not adhere to the tenets, doctrines, or discipline of the original organization. Smith v. Swormstedt, 16 How. 288.
It is well settled, that members who secede from a church organization or a religious society, thereby forfeit all right to any part of the church property; and whether there has been a secession or not, within this rule, “ is a mixed question of law and fact, to be decided upon the evidence with a-view to all the circumstances, including the acts of the parties and the motives which have prompted such acts.” Wiswell v. First Cong. Church, 14 Ohio St. 32. In Baptist Church v. Mouse, 21 Conn. 160, it was held to be a question of fact for the jury whether there was a secession. See Stebbins v. Jennings, 10 Pick. 172, and cases cited; The Dublin case, 38 N. H. 459.
We find that, in this state — in The Dublin case, 38 N. H. 459—it is settled, that the individual religious opinions of the donor cannot be received to enlarge or contract the meaning of general terms used in the instrument by which he established the charity.
But it is also held that “ courts will resort to the original and long-continued application of a religious charity by the trustees, for aid in giving construction to doubtful terms in the instrument which establishes the charity,” and that “ where the original trustees, appointed by the founder of a religious charity, applied the fund to the support of certain religious doctrines, and that application has been long continued and acquiesced in, a court of equity will not interfere with the application,” unless such interference was called for by the plainly expressed intention of the donor.
It would seem, then, that the proper principles to be applied in this case upon the weight of authority (not taking into consideration those authorities which are based upon the peculiar provisions of the statute of New York, and which can, therefore, have no application here) are, in substance, as follows: That the denominational name of a religious society to which or to whose use a donation or grant is made, and the doctrines actually taught therein at the time of the gift or grant and immediately after, and the length of time they continue to be thus taught without interruption, may be resorted to, to limit and define the trust in respect to doctrines deemed fundamental; that where the conveyance is merely [81]*81to the religious corporation by name, with no other designation of its purposes or trusts (as in this case), the denominational name, in connection with the contemporaneous acts of the corporators, may be a sufficient guide as to the nature of the trust; that where there is no specific designation in the deed as to the particular religious tenets or doctrines which it is to be used to advance or support, the denominational name may indicate the nature of the trust, so far as respects doctrines admitted to be fundamental; and that, if a society of one religious sect or denomination becomes incorporated with a strict denominational name, descriptive of the fundamental doctrines of the sect to which it belongs, it will be presumed that it was constituted for the purpose of advancing the vital doctrines of such sect or denomination, and that the society, or those having control of property held in trust for the benefit of such religious society, should be restrained from applying the property or the use of it to the promotion of tenets or doctrines clearly opposed and adverse to the fundamental principles of the faith and doctrines of such sect or denomination at the time and immediately after the trust was created.
Now, that the terms Unitarian and Christian, when assumed as a denominational name, are both expressive of the most fundamental and essential doctrines and tenets, will not probably be questioned. It was settled, in Inhabitants of Princeton v. Adams, 10 Cush. 129, 182, that the two systems of belief (Unitarian and Trinitarian) are essentially different in their doctrines and principles of faith; and Metcalf, J., in the opinion, says,— “We know of no school, either of theology or of jurisprudence, in which these two systems of faith were ever considered essentially the same. From the early days of Christianity they have always been deemed, as they have been in our day, antagonistic systems ; and courts have decided that funds given to support the teaching of one of them, are misemployed and perverted when applied to support the teaching of the other, and have redressed such misemployment,”— citing Attorney-General v. Pearson, 3 Meriv. 353, and 7 Simons 290 ; Shore v. Wilson, 9 Clark & Fin. 355; Attorney-General v. Shore, 11 Simons 592, and 16 Simons 210 ; Attorney-General v. Drummond, 1 Con. & Lawson 210, and 1 Dru. & Warren 353; Attorney-General v. Sutton, 7 Irish Eq. 612,614; Miller v. Gable, 2 Benio 492, 548 ; Knishern v. Lutheran Churches, ¿*<?., 1 Sandf. Ch. 439; 2 Story on Eq., sec. 1191, a.
And if the term Unitarian be thus expressive of a doctrine so fundamental and essential, what shall be said of the term Christian ? If the distinction is so great between two sects, both of which are admitted to be only different denominations of the same religion, what must the difference be between whole systems of religion, — between Christianity and other systems of religion, as the Mohammedan or pagan, or between Christianity and infidelity; a disbelief in and denial of all the fundamental and essential doctrines of the whole system ?
Difference in creed or belief of the Christian doctrines makes the different Christian sects; difference in name makes the different denom[82]*82inations, and the name in some way usually indicates or describes the sect;— so it is the belief in the Christian religion, and in Jesus Christ as its author and as the true Messiah, that makes a Christian; and belief in the religion of Mohammed, and in Mohammed as a true prophet, makes a Mohammedan. It is a man’s belief, his creed, that decides what religion and what sect he belongs to. The idea that any man, however good, can properly be called a Christian, who does not believe or assent to the truths and doctrines of Christianity, and, first and foremost of all, to the doctrine that Jesus was the Christ, the true Messiah, “the Christ of God,” is simply preposterous. A man’s belief alone decides his religion and his sect. A man may be a Christian, in the political or conventional sense in which we use the word, if he assents to the truths of the Christian system. If he lives an upright life, it makes him a good, or, as might be said, a consistent Christian. So a man believing the Mohammedan faith may be a good man. If his life is pure and correct, it makes him a good Mohammedan; but any amount of good living will not make a pagan a Christian, until he believes the Christian faith. An infidel may be a good citizen and a good man; a good infidel, but not a good Christian ; because, while an infidel he cannot be a Christian at all. There is and can be no doubt as to what the word Christian means, in its common use and acceptation, and as it is generally understood. All Christians believe in Jesus Christ as the true Messiah and the Saviour of men; in other words, that Jesus Christ was just what he claimed to be,— “the Christ of God.” It is to be presumed that the framers of our constitution, when they used the word in Art. VI in the bill of rights, and also that the founders of this society in Dover, when they applied this name to their religious society as descriptive of the faith of the sect which formed it, used this word in its common and ordinary sense: such is the ordinary and universal rule, unless something appears to restrict or qualify such ordinary meaning. “We are not at liberty to presume that the framers of the constitution, or the people who adopted it, did not understand the force of language.” They must “ be intended to mean what they have plainly expressed, and no room is left for construction.” People v. Prudy, 2 Hill 85 ; S. C. 4 Hill 384; United States v. Fisher, 2 Cranch 399 ; Cooley’s Const. Lim. 55 ; Robinson v. Tuttle, 37 N. H. 248; Barnstead v. Alton, 32 N. H. 250; Mailard v. Lawrence, 16 How. 261.
Let us, then, examine the records of this society in Dover, and the other evidence in the case, and see whether this society was, or was not, in fact, all that its name indicated, to wit, “ A Unitarian society of Christians.” They must be first Christian, and next Unitarian. We shall also see, in that way, how the trust in this case has been administered. In Congregational organizations there is' presumed to be a church, which is a constituent part of the congregation. Unitarians are Congregationalists, at least in this country. The Dublin case, 38 N. H. The society embraces the church, and all those who worship with the church. “ Churches * * * in .the call of a minister to be their [83]*83pastor * * * act separately from and generally prior to the society or parish, which embraces both the church and those who worship with them. The call of the church, however, is not valid, unless the parish assents to it. The contract of settlement is made wholly between the parish and minister, and is obligatory on them only.” En-cyclopaedia of Reigious Knowledge, “ Oongregationalist; ” Dublin case, 38 N. H. 507, 508, & seq.; Baker v. Fales, 16 Mass. 520; Baird’s Religion in America 453, 454.
To find what are the religious opinions of any Congregational society, you must look to the creed or doctrines of the church which constitutes its centre and basis. A Congregational society is generally made up first of the church, and next of those who worship with the church and favor the same views, and who assist in supporting the preaching and public worship of that church. The society, as such, often, perhaps generally, has no creed or published religious opinions distinct from the church ; the church is the basis or foundation of the whole. This is true in the Congregational societies in this country generally, whether orthodox or Unitarian. The ministers are generally settled by the society, as in this case, but they become pastors of the church as well as of the society; and the creed or belief of the society is not to be sought in its constitution or by-laws, but in the creed or belief of the church with which said society is connected.
In this case, we find that all the ministers who were present at the ordination of Mr. Abbott are spoken of and described as pastors of the several churches from which they came; but they were all settled, no doubt, by their respective societies. “ A church can subsist and perpetuate itself only by an organic connection with a society. The society is the soil for the roots of a Christian vine, supplying the new material to repair waste by death. A church not connected with a society would die out.” Ellis’s "Half Century of the Unitarian Controversy 424, 425, 429-431; Stebbins v. Jennings, 10 Pick. 172. A Congregational church is described by Shaw, C. J., as an “ aggregate body or association — not a corporation or quasi corporation — formed within the religious society or parish; set apart from the rest of the society for peculiar religious observances, for the celebration of the Lord’s supper, and for mutual edification.” Weld v. May, 9 Cush. 181; Buck’s Eccl. Law 67.
This society in Dover, being formed as we have seen, and having erected their meeting-house and sold their pews subject to conditions above specified, made arrangements to dedicate their house to the worship of God. This was done by Christian ministers of Unitarian Congregational churches, in the usual form. Their first minister was ordained by the same council of ministers that dedicated the house of worship.
But before the house was dedicated or any minister ordained, it was thought proper, and perhaps necessary, that a Christian church should first be formed and organized, as the body which was especially to occupy the house and direct in its public worship, and to which the pastor was to minister, by virtue of liis connection with the society as its pastor and minister.
[84]*84Therefore a church was formed, which was made up of members of the society who expressed “ their earnest desire and solemn intention of forming themselves into a Christian church, for the purpose of observing Christian ordinances, obeying the precepts of Jesus Christ, and aiding each others’ advancement in a holy life,” and who, having solemnly declared their belief “ in the gospel of Jesus Christ,” &o., were declared and pronounced to be “ a regular Christian church.” And, now that their house was about to be dedicated, a minister of Jesus Christ to be ordained among them, they themselves formed into a Christian church about to enjoy the satisfaction and benefit of Christian ordinances,” they were exhorted to let their hearts be full of gratitude and praise. See Church Records.
This church was thus formed the 17th day of February, 1829', and the next day (the 18th) their house was dedicated and their first minister ordained. Let us find what were the doctrines of this church, and they will indicate what kind of a religious society was connected with it. On the 26th day of April, 1829, at a meeting of this church and its pastor, “ the following preamble and covenant drawn up by the pastor, having previously had the individual approbation of the members of the church, was adopted as the covenant of this church.” See Church Records, and B. Barnes’s 2d deposition.
“ As it seems to be the duty of every Christian church cautiously to -obey the injunction of the apostle, ‘ that all things be done decently and in order,’ while at the same time it avoids imposing anything by way of covenant or articles of faith, which may not be conscientiously complied with by all who profess faith in our Lord Jesus Christ, and thereby deprive many of the benefit of Christian ordinances who have a right and privilege to enjoy them ; — therefore,—
“Resolved, That the following acknowledgment shall be the covenant of this church, to be assented to by all who may hereafter wish to unite themselves with us for the benefit of Christian ordinances: ‘ Do you believe in Jesus Christ as the Messiah, and accept his religion as a revelation from God, the true guide of your faith and rule of your duty? With a deep sense of your imperfection and weakness, and a humble and grateful reliance-upon God for the pardon of sin and assistance in duty, will you solemnly and earnestly endeavor, by attendance upon the services of religion, and by the offices of Christian charity and piety, to become a sincere disciple of Jesus Christ? that, being faithful to yourself, your fellow men, and to God, you may not be found wanting in that day when he shall judge the world in righteousness by that Man whom he hath appointed.’
u Resolved, further, That any person wishing to unite with us in the celebration of the Lord’s supper, his desire having been previously signified by the pastor to the church, he shall, unless some serious objection be made, * * * be received, on the acknowledgment of the above covenant, or any other form of words he may prefer expressing a belief in Christianity, to the full communion of this church and to the enjoyment of all its benefits.
[85]*85“Resolved, further, That baptism shall be administered to all who desire it, to themselves or their children, upon their assenting to the following declaration, which shall be put to them by the pastor before administering the ordinance: Do you believe in Jesus Christ as the Messiah, and regard his religion as a revelation from God ? ’ ”'
A service of plate had been procured, and the Lord’s supper was administered to this church for the first time on said April 26, 1829.
The several pastors or ministers have uniformly been ordained by a council of pastors and delegates called from the neighboring Unitarian Congregational churches for that purpose.
Therefore, judging this society, as all religious societies must be judged, by the doctrines and ordinances of the church whose principles and preaching and public teachings the society sustains and supports, we find it to be not only Christian in name, but in its principles, doctrines, and ordinances.
We also find that the following allegations in the bill are true: “ That the main purpose and design of forming said society was the promotion of religious knowledge and Christian virtues by the maintenance of public worship, and the erection of a meeting-house for that purpose, where the doctrines of the Christian religion should be publicly taught and inculcated, as cherished by the sect of Christians known as Unitarians ; that said society, from the date of its formation in September, 1827, down to the time of the dedication of the meeting-house, regularly maintained public Christian worship in said Dover on-the Sabbath, and had preaching by regularly ordained ministers of the Unitarian denomination of Christians, who there at such meetings preached and taught the doctrines of Christianity, as holden by the sect of Christians called Unitarian; that, from the time of the dedication of said meeting-house down to the 81st day of August, 1864, said society regularly maintained Christian worship on the Sabbath in said meeting-house, and during nearly all that time had preaching in said house by ministers of said Unitarian denomination of Christians, regularly ordained and installed over said society as its pastors by other clergymen of said denomination, and that, during that portion of the time, between the dedication of said house and said 31st day of August, 1864, when said society have been without settled ministers, they have uniformly had preaching on the Sabbath in said house from ministers of said denomination, and both said last named ministers, and all the settled ministers of said society, have, up to that date, preached and inculcated in said house on the Sabbath, and at all other times have publicly and privately taught and inculcated, the doctrines of Christianity, as believed and taught by the denomination of Christians called and known as Unitarians.”
Let us next examine Mr. Abbott’s religious opinions and theological views at the time he was settled as pastor over this society, and also at the time when this bill was filed, and see whether any, and, if so, what changes of views and of religious opinions have occurred in his case, and whether he was a Unitarian and a Christian at the time when they first employed him, and whether he continues so at the present time.
[86]*86It appears from the copies from the records of this society and from the evidence, that Mr. Abbott was ordained as pastor of The First Unitarian’Society of Christians in Dover on the 31st day o'f August, 1864. That he then understood that he was to act as pastor of the church as well as of the society, appears from the following extract from his letter of acceptance, as found in the records of said society : “ Unless our church shall be a united, earnest, and working one, no amount of outward prosperity or social enjoyment can make it anything but a wreck and failure, and I interpret your invitation as implying, on your part, a pledge of hearty support in all right works and ways.” And at the time of his ordination he had his two children baptized, one about two years old, and the other an infant. They were baptized in the name of the Father and of the Son and of the Holy Ghost, as a consecration of them to the service of God. See Barnes’s and Abbott’s depositions. And we have no doubt that Mr. Abbott at that time assented to the declaration required by the church covenant, previous to the baptism of his children, viz., that he “ believed in Jesus Christ as the Messiah, and regarded his religion as a revelation from God.”
The council for his ordination was composed of ministers and delegates from several neighboring Congregational (Unitarian) churches, and the record of their proceedings is as follows: “ On Wednesday, August 31, 1864, at 10i o’clock a. m., at a meeting of pastors and delegates, present by invitation, for the ordination of Mr. Francis E. Abbott as minister of The First Unitarian Society of Christians in Dover, Judge H. A. Bellows was chosen moderator, and Rev. II. W. Foote, scribe. Mr. Hale read the record of the action of the society, and, their correspondence with Mr. Abbott. Rev. E. E. Hale moved that the council is satisfied with the proceedings, and is prepared to proceed to the ordination of Mr. Abbott. Rev. Dr. Clark moved that the scribe be instructed to furnish copies of this record, to be entered on the records of this society. The meeting then adjourned.” The exercises at the ordination consisted of the usual introductory prayer, reading of the Scriptures, ordination hymn, sermon, ordaining prayer, charge, right-hand of fellowship, address to the people, concluding prayer, and benediction. He was, then, it would seem, a believer in Christianity, and was, therefore, either a Roman Catholic or a Protestant ; and there is no claim that he was a Catholic.
We will next examine the main charge in the bill, viz., that Mr. Abbott has apostatized from the Christian faith and become a disbeliever in Christianity, and also in Unitarianism ; and that he is now occupying said church, not as a public teacher of Christianity, but as an open opposer of Christianity, — as an avowed deist or theist, disowning Jesus Christ as the Messiah, and his religion as the only true religion; and charging that said Abbott is now neither a Unitarian nor a Christian.
Mr. Abbott remained with this society, as pastor or religious teacher, till April 1, 1868, when, by his resignation, that relation terminated. Towards the latter part of his preaching, he made statements that “Jesus Christ was like other men, with no more authority,” and [87]*87compared Christ with Garrison and other good men; that he doubted whether there was more than one pulpit in Boston that he (Abbott) would be allowed to occupy; stated that he was looked upon as a “ rebel” in his theology (Barnes’s 1st deposition) ; that he considered Christ as a mere man, and fallible like other men ; that Christ was not the Messiah, and that if he (Christ) believed himself to be the Messiah, he was mistaken (Andrews’s deposition); that the New Testament showed that Christ did claim to be the Messiah, but that he (Abbott) believed the Messiah had not come, and would not come (Boll’s deposition).
He went on in this way, step by step, until he openly declared himself not a Christian, nor a Unitarian, so far as Unitarianism was based upon Christianity, or the recognition of Christ as the Messiah; proclaimed himself a theist, and preached his theistical doctrines to such an extent as to give great dissatisfaction to the members of the church and society, — in consequence of which his subscription list fell oif until he was advised by his friends to resign, which he at once did; and by arrangement, his term of service terminated April 1,1868.
On Sunday, the 15th day of March, 1868, said Abbott, in his public discourse, stated his belief in the following propositions: “1st, That Christianity is merely one among many religions; 2d, That each religion is partly true and partly false; and 3d, That pure theism, which is the common element, the universal essence of all religion, is by itself greater and truer than all.” The following are also extracts from said sermon: “ Whoever has been so fired in his own spirit by the overwhelming thought of the Divine Being as to kindle the flames of faith in the hearts of his fellow men, whether Confucias, or Zoroaster, or Moses, or Jesus, or Mohammed, has thereby proved himself to be a true prophet of the living God; and thus every great historic religion dates from a genuine inspiration by the Eternal Spirit.” Speaking of the teachings of Jesus Christ, he said, — “ Love to God and to man is the epitome of his instruction, and this is simply faith in the Divine in its two-fold aspect. Hence I deem it right to say that Jesus was himself not a Christian, but a simple theist, and that simple theism is the entire burthen of his life and doctrine.” Speaking of the Messiah, he said, — “ I regard the doctrine of the Messiahship as, in any sense, a superstition of the times. The pretence that any man has been singled out to be a permanent Christ, Messiah, or Mediator to his fellow beings, is, to me, monstrous. Henceforth I claim to be neither a Unitarian nor a Christian, but simply a theist. * * * Jesus I believe to have been a theist, and Christianity I believe to be a perversion of theism. In resigning the names Unitarian and Christian, I do so with full knowledge of the grave, practical consequences that must ensue; but, wishing ever to be docile to the teachings of life, this step seems to me the plain lesson of recent circumstances.”
In preaching his farewell sermon, March 29th, 1868, he commenced as follows: “ My text this morning is taken from no Hebrew Scriptures, whether of the Old or New Testaments. America is every whit [88]*88as sacred as Judea. God is as near to you and to me, as ever he was to Moses, to Jesus, or to Paul. Wherever a human soul is born into the love of truth and high virtue, there is the ‘ Holy Land.’ Wherever a human soul has uttered its sincere and brave faith in the Divine, and thus bequeathed to us the legacy of inspired words, there is the ‘ Holy Bible.’ To find my text, therefore, for the last morning of my ministry in Dover, I cannot travel across the Atlantic and the Mediterranean to ransack the Orient for a prophet, nor leap the gulf of eighteen centuries to find a word that shall fit this occasion, to me so earnest and full of moment. I am impelled to turn to some American scripture, instinct with the deep religion of the day. I am impelled to listen to some American prophet, whose soul is fired with the Divine suggestions and fathomless significance of all human life. This shall be my text, taken from a seer as truly and as highly inspired as any that ever prophesied in days of yore. I mean, Ralph Waldo Emerson.”
In the course of this sermon, he alluded to the charge that he came among them as a “ conservative,” when his real views, when he came to express them, were most “ radical.” He said that in one of his earliest sermons he had taken the position that “ Christ is a mere man,” and that all his wonderful power is the simple product of character; that this doctrine is not a reproach to Jesus, but rather praise and exaltation. He then adds, — “In these statements you have the germ of everything that is radical in theology. The moment a man gives up the absolute Deity of Jesus, he cannot stop till he accepts his mere humanity, that is, if he can think. Unitarians, I confess, often succeed in stopping half way, but do it by ceasing to think. Begin to doubt the ‘ Deity of Christ,’ and, if your mind is active and strong, you cannot stop doubting till you have doubted yourself out of Christianity into pure theism. That is where I am to-day — outside the warm shelter of the Christian church, in the vast expanse of God’s boundless universe, yet still at home.”
He assigns, as a reason for leaving the Unitarian denomination, the fact that, at their conventions in 1865 and 1866, holden at New York and at Syracuse, they adopted a platform distinctively Christian. He says, — “ I feel convinced that henceforth the Unitarians, as a sect, will maintain their stand on what is called ‘ distinctively Christian ground,’ which, in plain English, means the Lordship or Messiahsliip of Jesus.” In his deposition, taken in this case, Mr. Abbott says, — “ Christianity, in my opinion, is religion, as taught in the New Testament, and more especially in the gospels, and based upon faith in Jesus of Nazareth as the Christ of God; ” that the distinction between religion arid Christianity “ is substantially one of the bases on which the two rest. Religion rests on universal humanity. Christianity rests on the individual Jesus; ” that he cannot longer cooperate with the Unitarian denomination, because it “ has practically avowed its faith in the Divine authority of Christ; ” and, in stating the reason why he is not a Christian, he says, — “ I believe that faith in Jesus as the Christ or Spiritual Messiah, in some sense or other, is essential to Christianity, and I do not entertain that faith in any sense.”
[89]*89The 1st of April, 1868, Mr. Abbott commenced preaching for and to an independent society, in a hall in Dover, and, after preaching there a few Sabbaths, he returned to the church of the Unitarian society, and preached there alternate Sundays for a few months. While thus* engaged, he wrote to the editor of the Liberal Christian, a newspaper published in New York city, which communication, dated May 11, was printed in the number of that paper dated May 23,1868, of which the following are extracts:
“ The true historic significance of the Christian name is that of the Christian confession,’ namely, that Jesus of Nazareth is the Christ of God. On this confession Jesus himself founded his church, and on this confession alone can Christianity, as a distinct religion, continue to stand. Etymology, history, and philosophy prove equally that Christianity has no basis, except in the Messianic mission of Jesus as spiritual leader of humanity and Saviour of the world.
'‘ Whoever is unable to regard him as, in some sense or other, the Hebrew Messiah, can call himself a Christian only in a private, esoteric, or transcendental interpretation of the word, and therefore, it seems to me, at the expense of perfect sincerity.
“ Wisely, or unwisely, I have coiné to the conclusion that in no sense is Jesus the Messiah or Christ of God. The soul is its own Christ. Humanity is its own Messiah. I reject Christianity that I may still .cleave to religion, which admits of no mediator because it is immediate. There is no room in religion for the intervention of a third person. What distinguishes Christianity from religion is its error and limitation alone. What is universal in it belongs to religion, and not to itself. In discarding the Christian name, therefore, I discard nothing but error and limitation, and because the step involves complete disconnection from all organizations calling themselves Christian. It is infinitely more than a mere matter of words. * * * The Unitarian conference have taken their stand upon the Christian confession, and all Christian bodies must take the same stand. Christianity' must say something or other about Jesus, must, in some way, confess his moral leadership, must take him as a perfect exemplar and perfect teacher, must connect itself indissolubly with his historic personality.
££ But religion has no more to do with Jesus than it has with Judas. It leaves the soul alone with God. It acknowledges no leader; is loyal to no master; imitates no exemplar ; looks to no redeemer; needs no saviour ; knows no Christ. The very heart of Christianity, as taught by Jesus himself, is the Christian confession that £ Jesus is the Christ of God.’ I cannot, in any sense, literal or metaphorical, make this confession.”
It will thus be seen that the charges against the defendant Abbott, as set forth in the bill, are substantially proved. I have also given much that he said and wrote in connection with the words charged in the bill, for the purpose of showing that these words were spoken and written understandingly and deliberately, and expressed his sincere belief and honest sentiments.
[90]*90In May, 1868, two protests were made in writing to the acting wardens of this society, one signed by over forty, and the other by eighty-five names, which were similar in purport, one of which was as follows :
“ Whereas, A ‘ theist .is neither a Unitarian nor a Christian,’ and whereas, Christ and anti-Christ, being in nature and spirit antagonistical, cannot with propriety be preached from the same pulpit, and would necessarily tend to subvert the foundation on which this society is built,—
“ Therefore, the undersigned, members of the ‘ First Unitarian Society of Christians ’ in Dover, N. H., do hereby protest against the use of the church of said society, in whole or in part, for theistical preach ing or lectures, or for any purpose whatever, not in harmony with the avowed objects of said society, which are, the building up and sustaining a Christian society in Dover, under the protection of the constitution and laws of the state of New Hampshire.”
In his deposition taken in this case, Mr. Abbott states that, at the time of his said ordination in Dover (August 31, 1864), he regarded himself as “ a minister of the gospel of Jesus,” but that now he claims “ to be a minister, not of the gospel of Jesus Christ, but of the gospel of humanity,” which he believes to be “ the only gospel in harmony with the religious wants of the agethat his views in matters of theology have changed since his said ordination, “ in the sense of a natural growth and development;” that he was educated as a “ conserva-. tive Unitarian Christian,” but now finds himself obliged by his convictions “ to stand outside of organized Unitarianism and of Christianity ;” that his views in relation to the ordinances of the gospel have also changed since his ordination ; that at that time he had his two children baptized; that it was done simply in recognition of his “ grave responsibility for their wise training and religious education,” but that he now regards “ baptism as the symbol of admission into the Christian church;” that at the time of his ordination he “ regarded baptism as a spiritual symbol of consecration to the service of God,” but that he now “ believes all symbolical acts in religion to belong to an immature state of religious development,” and that, as minister of the independent society to which he was then preaching, he would not administer either the ordinance of baptism or the Lord’s supper; and that he now considers himself as independent, in his religious belief and public religious teachings, of all bibles, churches, and Messiahs; and that, as he understands the term “ Christian,” no man, who agrees with him in his belief in these respects, can fairly and truthfully be called a Christian ; and that he has formally withdrawn from the Unitarian denomination, and requested his name dropped from the roll of Unitarian ministers just prior to April 1, 1868.
We thus see that the charge made in the answer of the defendants (except Abbott), that said Abbott was a progressive man and that he changed his opinions from time to time, is true. Very radical changes had taken place in his views upon fundamental questions and doctrines in theology after coming to Dover, and before the filing of this bill. [91]*91•We are also satisfied that the further charge in the answer of all the defendants (except Abbott), that said Abbott “ is free in his thought and free in his speech,” is also true; and that he may properly be styled a “ freethinker,” in the technical sense of that term. We are also satisfied that he is “ honest, sincere, truthful, and clear in his expression,” as charged in the answer.
’ But the charge that the quotations in the bill, purporting to be from his sermons, “ are garbled extracts, and taken alone are deceptive, tending, if not designed, to misrepresent the sentiment, tone, and spirit of his ministrations, seems to be wholly unfounded, as we have already seen. Indeed, Mr. Abbott for himself makes no such claim. He is too “honest, sincere, and truthful ” to do so. In fact, he has done everything that a man can well do to put himself, or, as he expresses it, “ to take his stand,” outside of Christianity. 1. He does not believe in the facts, the doctrines, or the ordinances of Christianity. He does not admit that Jesus Christ was a leader, a master, or even an exemplar. He denies that he was or is a mediator, a redeemer, or a saviour of men. He does not receive him or believe in him as the Christ of God, — the true Messiah. He does not believe that Christ was a prophet even, any more than Confucius, Zoroaster, or Mohammed was. He does not receive the Bible as a revelation from God, or as of any higher authority than the writings of Garrison and of Emerson. 2. He has taken particular pains to publish his disbelief of Christianity, by preaching and writing and printing his views, so that no one need be deceived, or mistaken, or misinformed in relation to them.
The charge in the answer that Mr. Abbott’s views, when fully and fairly expressed, are “ not peculiar to him, but are substantially held by many clergymen and others who call themselves Unitarians,” is simply a charge that this class of Unitarians are not Christians; in other words, that a portion of the denomination known as Unitarian is not Christian, but purely infidel, simple deists. This charge to a certain extent may be true, for we find evidence in this case tending to shpw, that some who call themselves Unitarians claim to believe in the existence or a- Supreme Ruler of the universe, and really believe nothing else, but are infidels or deists, and are not entitled to the Christian name any more than the pagans are. They may, in one sense, be Unitarians, just as all Jews and Mohammedans are, but they are not Unitarian Christians, because they do not believe in the fundamental doctrines of Christianity. And that those men who call themselves Unitarians while they are simply deists, and who only assume the name of Unitarians as a cloak to cover their bald infidelity, “ are fellow-shipped by Unitarians ” as the answer charges, if true to any extent, is simply owing to the fact that the denomination has undertaken to go along without any particular creed or established articles of faith by which such men would be excluded; and they are thus of necessity endured in the society and companionship of those who have no sympathy, nor any bond of Christian fellowship or communion, with them. (See Dr. Peabody’s deposition.) So far as this part of the answer is [92]*92true, it is simply saying that some who call themselves Unitarians are not Unitarian Christians, but Unitarian infidels. But the term “ Unitarian,” as descriptive of a religious sect, or denomination, is generally and properly used to denote a denomination of Christians, and of that great division of Christians known as Protestants. Dublin ease, 38 N. H., before cited ; Baird’s Religion in America, ch. 3.
The answer also alleges that “ Unitarians have no rule of faith or creed of doctrines.” In a certain sense, this is true. Unitarian Christians profess to take the Bible as their creed, and allow every person to read, and interpret, and understand the Bible for himself, according to such light as he has, using his reason and other powers of mind, as best he may, in aiding him to arrive at correct conclusions. But in another sense they do and must have a creed. The church in Dublin had a formal creed, or confession, or articles of faith, and the decision in that case only settles that Unitarians, who believe in such a creed or church covenant as that, are Christians. That decision is not an authority that all who call themselves Unitarians are Christians, without regard to their faith or belief in the doctrines of Christianity. Dublin case, 38 N. H. 459, 460, 466, 468, 571, 572. So the church in Dover had a “ covenant,” which was to be assented to by all who would unite with them for the benefit of Christian ordinances. This covenant was a creed. They must “ believe in Jesus Christ as the Messiah, and accept his religion as a revelation from God, the true guide of •* * faith and rule of * * duty.” Now, a man’s creed is what lie believes. Trinitarians believe in the trinity or the tri-unity of God. That, so far, is their creed. Unitarians believe in the unity of God. That, so far, is their creed. Each has a creed which necessarily excludes the other. Different creeds constitute the different “ sects.” Each sect has a particular name, and that makes it a “ denomination.” A creed may have one article- of belief, or many. What makes it a creed is the fact that it is the common belief of a sect, — not its length, or its brevity. It would be impossible to have a sect, or denomination, unless there were at least some one ground on which they agreed ; and, so far as there was a common belief, just so far they would have a creed, or a covenant. And the case is not changed, whether the creed contains one article of faith, or thirty-nine.
In the Encyclopaedia of Religious Knowledge, Unitarians are designated as “ a class of religionists, who hold to the personal unity of God in opposition to the doctrine of the trinity. * * * Unitarians profess to derive their views from Scripture, and to make it the arbiter in all religious questions. * * * In America, Unitarian opinions are much divided upon the point of Christ’s preexistence, while, oh the other hand, the rejection of the tenet of his vicarious suffering (or suffering as men’s substitute), along with that of his supreme deity, appears to be universally characteristic of the sect.” See, also, Prof. Palfrey’s article on Unitarians, in the American Encyclopaedia ; also, in the Encyclopaedia of Religious Knowledge.
A belief in the unity of God, in the Bible as a divine revelation, the [93]*93ultimate arbiter in all religious questions,-and a rejection of the doctrine of the vicarious sufferings of Christ and of his supreme divinity, would seem to be leading articles in their belief or creed, from these authorities. See Dr. Channing’s sermon on Unitarian Christianity, 3 Channing’s Works 59; Ellis’s Half Century of the Unitarian Controversy 48.
If there is any such Unitarianism as the defendants claim, and describe in their answer as having “ never been exclusive, sectarian, or limited to Christian worship,” it must be a kind of Unitarianism that stands “ outside of Christianity,” where Mr. Abbott stands. It is not Christian Unitarianism, nor is it Unitarian in the sense in which this word is ordinarily and properly used, denoting a sect or denomination of Christians.
It was not until about the year 1867 that Mr. Abbott’s anti-Christian views and doctrines began to be made prominent in his preaching and public teachings. Up to that time he had been preaching in a way to satisfy the church as well as the society, he being the pastor of both, in the same way that all the preachers before him, to that society, had been. They had been preaching the doctrines of the church, which were those of the society, as a matter of course, which they were assisting the church to promulgate; distinctively Christian doctrines, such as that Jesus Christ was the true Messiah, and that his religion was a revelation from God, which was the true guide of faith and rule of duty. The distinctively Christian ordinances of baptism and the Lord’s supper had been administered to the church by all of these pastors, so far as appears, from the time when they formed the church, and each “solemnly declared their belief in the gospel of Jesus Christ,” and when it was duly pronounced to be “ a regular Christian church,” down to the time when Mr. Abbott baptized his two children “ in the name of the Father, and of the Son, and of the Holy Ghost,” and assented to the declaration “ I believe in Jesus Christ as the Messiah, and regard his religion as a revelation from God.” During all this time, a period of full forty years, this meeting-house had been used regularly and statedly, by regularly ordained ministers of the sect known as Unitarian Christians, in preaching and teaching distinctively Christian doctrines, and in administering the distinctively Christian ordinances of baptism and the Lord’s supper ; such teaching and preaching, and such an administration of Christian ordinances there, as the church desired in order to help them to become what they so much desired in the commencement, to wit, “ sincere disciples of Jesus Christ.”
To such uses has this church or meeting-house been set apart, and appropriated and consecrated, from its very origin and inception, through the long period of forty years, down to 1867, under the special and particular direction and control of this society of Unitarian Christians. For forty years, — as long as the children of Israel wandered in the wilderness, seeking the land of promise, — has this trust been administered, and applied to the support and maintenance of the doctrines and ordinances of Christianity, without any variation or cessation, and going [94]*94back to the erection of the meeting-house, and also to the foundation of the trust, when the founders could see for themselves how the trust was applied and executed, and were satisfied, it would séem, with the way the whole thing was managed, under the direction and control of this society of Christians, to whom the founders of the trust had committed the custody and control of the house. • ■
And, surely, if “ courts will resort to the original and long continued application of a religious charity by the trustees” in order to aid them in giving construction to the instrument which established the charity (see Dublin case) ; or, if it be true that, “ where the original trustees, appointed by the founder of a religious charity or trust, applied the fund to the support of certain religious doctrines, and that application has been long continued and acquiesced in” (id.), a court of equity will not allow such application to be interfered with or changed unless such change is clearly required by the plainly expressed intention of the donor, then it follows that the court should not allow or suffer this charity or trust now to be diverted, and misapplied to uses directly antagonistic to all those uses and purposes to which it has heretofore been uniformly applied ; will not and should not allow this house to be used for the teaching and preaching of doctrines directly subversive of all the fundamental principles of Christianity and óf Christianity itself, to whose use it has always heretofore been devoted.
If the Dublin case is to be sustained as an authority, if it is not to be overruled and set aside as of no weight or consequence, it would seem that the questions at issue in this case must be decided in favor of these complainants, on the ground of a long continued and uninterrupted application'of this charity or trust, in a particular way, and for the use and support of the doctrines of Christianity, from the very foundation of the trust, and so down for full forty years, with the full knowledge, assent, and approval of the original founders of the trust, and of everybody interested in the same. We might properly stop here, and order a decree in favor of the complainants ; but there are a few other aspects in which it may be well to look at the case.
' If we hold, as the weight of authority seems to be, “ that the denominational name of a religious society to which or to whose use a donation is made, and the doctrines actually taught therein at the time of the gift and immediately after, and the length of time they continue to be so taught without interruption, may be resorted to to limit and ‘define the trust in respect to doctrines deemed fundamental,” then we should come to the same result, to wit, that these defendants ought to be restrained from using the house for the preaching and promulgating doctrines opposed to Christianity; or, if it be the law that “ when the conveyance is merely to the religious corporation by name, with no other designation of its purposes or trusts, the denominational name, in connection with the contemporaneous acts of the corporators, may be a sufficient guide as to the nature of the trust,” then we must inevitably reach the same conclusion in favor of the complainants. So, also, upon the ground that “where there is no specific designation in the deed [95]*95as to the particular tenets or doctrines which it is to be used to advance or support, the denominational name may indicate the nature of the trust, so far as respects doctrines admitted to be fundamental,” the same conclusions must be reached; and, finally, if, “ when a society of one religious sect, or denomination, becomes incorporated, with a strict denominational name descriptive of the fundamental doctrines of the sect to which it belongs, it will be presumed that it was constituted for the purpose of advancing the vital doctrines of such sect or denomination ; ” and if in such case it follows “ that the society, or those having control of property held in trust for the benefit of such religious society, should be restrained from applying the property or the use of it to the promotion of tenets or doctrines clearly opposed and adverse to the fundamental principles of the faith and doctrine of the denomination, at the time and immediately after the trust was created,” then the injunction prayed for in this case would be granted, as a matter of course, upon the facts proved in evidence, even upon the ground that said Abbott had been employed by said wardens of said Unitarian society, and that by authority of a majority of the members of said Unitarian society, for the time being, acting in good faith, but under a mistaken notion of their powers and duties.
But in this case we find that this Unitarian society had not in any sense elected, or contracted with, or employed said Abbott, as their minister or religious teacher, after the first of April, 1868. After that date, when the matter was suggested to him by the wardens or others, Mr. Abbott utterly declined and refused to be employed by said society, or to preach to that society, or to be connected or associated with the society as a society of Unitarian Christians, in the capacity of religious teacher, directly or indirectly, in any manner whatever.
'He insisted that, as the society had originally assumed a name, expressing and intended to express and represent the religious sentiments of its members and the system of theology which the society was formed to promulgate and inculcate, they should now, if they had changed their religious sentiments and wished to advocate and disseminate such doctrines as he was preaching, which were antagonistic to all the doctrines and sentiments expressed and represented by the name they had assumed, — antagonistic to all the doctrines of Christianity generally and of that particular sect of Christians called Unitarian, — that they should change their name and assume one that would be consistent with their present position — one, at least, that should in some respect represent and express the new doctrines they had embraced and proposed to promulgate; that they were bound, in good faith and common honesty, not to sail under false colors; that they should not seek to teach and disseminate anti-Christian sentiments and doctrines under the name of Christianity ; that, like honest men, they should call things by their true names, and not seek, by fraud-and false pretences and false names, to advance and inculcate any system of doctrines, however good in themselves Mr. Abbott might think them to be; and in this we think Mr. Abbott was clearly right. [96]*96But, as a society of Unitarian Christians, Mr. Abbott utterly declined and refused to have any connection or association with them as their pastor or religious teacher. Now, the election of a religious teacher, contemplated by the constitution, was one that was to be accompanied by a contract for his support and maintenance. He was to be elected and contracted with. An election of one that could not be had, or of one that would not serve, would amount to nothing. The privilege which the constitution secured to religious societies was the privilege of electing and contracting with ; of hiring such religious teacher as they chose to support, for themselves and in their own way. But this society has not elected, contracted with, or employed Mr. Abbott as their preacher or religious teacher in any way since his resignation was tendered and accepted, taking effect April 1, 1868.
The charge in this bill is against all the defendants (except Abbott, and the wardens of the Unitarian society) as claiming to be members of said “ First Unitarian Society of Christians in Dover,” but as being, in fact, members of an independent religious society of which said Francis E. Abbott is the preacher, and against said Abbott as such preacher, and against said York, Folsom, and Horscli, as wardens of the said Unitarian society of Christians. The plaintiffs charge in substance that the defendants have united and foi’med an independent society entirely outside and independent of said Unitarian society, and, in fact, antagonistic and hostile to it; and that, as such, they have employed Mr. Abbott as their preacher; and that the. wardens of said Unitarian society have, in violation of their duty to said Unitarian society, allowed and encouraged said Abbott and his associates, and fellow-disbelievers in Christianity, as such independent society, to occupy the meeting-house of said Unitarian society since said 27th day of April; and that said wardens have allowed said Abbott in the pulpit of said house to preach, not to said Unitarian society, but to said independent society ; and that said preaching was not according to the views of the denomination of Christians known as Unitarians, but in opposition thereto and to-Christianity generally; that the plaintiffs do not know who compose said independent society to which said Abbott claims to be preaching, but believe the same to be made up of said defendants (save said Abbott) and others; and that said wardens of the Unitarian society have assessed the pews in said house, and are proceeding to collect the taxes so assessed of the plaintiffs, and apply the same towards paying for the preaching of said Abbott in said house, not to said Unitarian society, but to another society, whose views and doctrines are hostile to Christianity generally, and to the views and doctrines of Unitarians particularly, — all which, it is alleged, is in violation of the duties of said wardens of said Unitarian society, and in violation and disregard of the rights of these plaintiffs.
In the answer the defendants (except Abbott) deny that they are members of any independent society, but claim that they are members of said Unitarian society, and that they are Unitarians, and that they employ Mr. Abbott to preach to them in their house, under and by [97]*97authority of the vote therein set forth concerning the two divisions of said society and their occupancy of the house.
Mr. Abbott’s answer is evidently drawn with great care, so as to say nothing in regard to this independent society. Had he been allowed to say anything about it, he would no doubt have told, as in other cases, the plain and simple truth. But this may not have been thought desirable by the other defendants, and so, in his answer, Abbott is put upon safe ground. He admits nothing and denies nothing, but says that for the year 1868 his engagement was made (not with York, Folsom, and Horsch, as the wardens of the Unitarian society, or with anybody who claimed to act for said society, but) with Wallingford, Everett, and Folsom, three of the defendants, “ who claimed to represent very many of the other defendants in this proceeding, and some other persons, to preach for them for the term of one year ; that his congregation have from Sabbath to Sabbath assembled in said meeting-house, and he has been, by said Wallingford, Everett, and Folsom, directed there to preach; and that he has, in fulfilment of his said contract, conducted public religious worship in said house, &c., claiming or exercising no other rights than are by him set forth in this his answer.”
From this it will be seen that he does not claim to have been employed by the Unitarian society or its wardens, or by anybody acting in its behalf, or that he was preaching to said society, or that he had any authority from said society to preach in their house. He does not deny that his employers and the other defendants, whom they claimed to represent with others, were acting as an independent society in open hostility to said Unitarian society. The non-committalism of this answer is by no means characteristic of Mr. Abbott.
But what are the facts as disclosed in the evidence. It will be borne in mind that Mr. Abbott, on account of the change in his views while at Dover, and finding that his present views were distasteful to the Unitarian society, had resigned his place as pastor of said society, which resignation had been accepted to take effect April 1,1868, and that he had withdrawn from and terminated his connection with the American Unitarian society just before that time, and had publicly announced that he was neither a Unitarian nor a Christian, and had preached his farewell sermon to said-society March 29,1868. After this he was engaged and employed by an independent society, to which he preached until the 1st of October of the same year, when he preached his farewell address to said independent society of Dover, which was printed in the Dover Gazette of Oct. 9, 1868, and which has been introduced as evidence in this case, and is not substantially contradicted.
In this address, he says, — “ When, therefore, I deliberately discarded the Unitarian and Christian names, this step was by no means a matter of words; it meant the standing aloof, albeit in utter solitude, from all Unitarian and distinctively Christian organizations. * *. * I resolved, after the expiration of my Unitarian pastorate, to refuse to connect myself again, whether directly or indirectly, with any Unitarian or Christian society. * * * Immediately after the delivery of my [98]*98farewell sermon, however, a movement started at the church door to retain me as a preacher in Dover, notwithstanding the public position I had taken. The next day, March 30th, my friends in the old society, wholly without my knowledge, went to the parish meeting and elected radical wardens, with authority to supply the Unitarian pulpit as they should think proper. The plan was to invite me to preach to the Unitarian society, not as its settled minister, but simply as its preacher for the present year, it being supposed that this course would leave me perfectly free to occupy my own ground uncommitted to the Unitarian denomination. The new wardens, therefore, invited me to preach in my old pulpit the very next Sunday ; but I declined doing so until I knew precisely what relation I should thereby occupy towards my former society, and what would be its action at the adjourned parish meeting. During this interval, between the first and second parish meetings, I became convinced of two things, — first, that my friends, having got control of the church, were strongly disinclined to form a new society; and secondly, that the proposed plan would conflict with my determination to stand wholly aloof from the Unitarian sect. At a meeting of my friends, therefore, held at the house of Mr. "Wallingford, the evening before the second parish meeting (April 12), I said plainly and emphatically that I could not again become their preacher, unless they should either change the name of the Unitarian society, or else form a new, independent society.
“ After a full discussion, my friends concluded, as I was distinctly informed, to accept the second condition I had named, and to form a new and wholly independent society. At the parish meeting next day, after much wrangling, the following resolution was passed: ‘Resolved, That the wardens shall employ none other than Unitarian Christians to supply the desk in this house.’ * * * The radical wardens at once resigned, conservative wardens were nominated who refused to serve as such, and the meeting was adjourned a fortnight, for the purpose of then electing wardens who would serve. Thus at the second parish meeting the church passed into the control of the conservatives, and I believe there was, at that time, but one purpose among my friends, namely, to go into a hall, and start outside as an independent society. Meanwhile, a subscription paper had been carried round, with the following heading : ‘ We,- the undersigned, hereby constitute ourselves an “ independent society,” for the purpose of maintaining free religious principles in Dover; and, in order to carry out this purpose, we agree to pay the sums set opposite our names, for the support of the Rev. Francis Ellingwood Abbott, as our preacher, for the ensuing year.’ ”
There is proof, from the records of the Unitarian society, that the votes which he refers to were passed by that society on the 30th of March and 13th of April, as stated by him. We also have a copy of this subscription paper of the independent society, duly authenticated, attached to a deposition in the case, with the names of the signers. The total subscription amounted to $1,061, which was subscribed by [99]*99some forty-four different persons, many of whom were not members Qf the Unitarian society, and some of whom were Jews. (See York’s deposition.)
Mr. Abbott continues : “ Enough money was pledged on this paper to sustain the movement, and, having made a definite agreement with the leading men concerned in it, I held the first public services of the new society in American hall, Sunday evening, April 26th, and then and there announced the fact of my engagement as preacher to the independent society for the year. The next day, April 27th, the third parish meeting was held in the church, the former radical wardens were reelected, * * * and resolutions * * * were passed, assigning the use of the church to ‘ each of the two divisions of said society for one half the time.’ In consequence of verbal explanations, made at the time, * * * it was universally understood, both by radicals and conservatives, that it was intended to give to the independent society the use of the church for half the time. It has been, in virtud of this vote alone, thus understood, that I have conceived myself justified hitherto in preaching in the Unitarian church. If I had for a moment supposed that the audience to which I preached regarded itself not as a Iona fide independent society, but only as the radical portion of the Unitarian society, I never should have consented to stand again in my former pulpit.
“ About six weeks after our first services in American hall, I felt convinced that the independent society must either complete its legal organization, or else come under the suspicion of being a nonentity, a mere blind for deceiving the public in regard to the real nature of our movement. Accordingly, early in June, I requested you to take such steps as were necessary to complete the legal organization of our society. You promptly voted to do so, and appointed a committee of three to report on this subject at an adjourned meeting.”
The following is the official record of this adjourned meeting:
“ Dover, June 9,1868.
“ At a meeting of £ The First Independent Religious Society ’ of the city of Dover, for the promotion of free religious principles, Zimri S. Wallingford was chosen moderator, and Thaddeus P. CreSsey secretary pro tempore. Jasper H. York, from the committee on permanent .organization, reported the names of Zimri S. Wallingford, Lucias Everett, Josiah B. Eolsom, for wardens, and Thaddeus P. Cressey, clerk.
“ On motion of Mr. Everett to proceed to the choice of officers, Zimri S. Wallingford, Lucias Everett, and Josiah B. Eolsom were chosen wardens, and Thaddeus P. Cressey, clerk, for the ensuing year. The oath of office was then duly administered to the wardens and clerk.
“On motion of Dr. York, Jasper H. York, Russell B. Wiggin, John Bell, Mrs. Z. S. Wallingford, and Mrs. J. B. Eolsom, were chosen a committee to draft by-laws, and report at the next adjourned meeting. The meeting was then adjourned to Tuesday evening, June 16, at 8. o’clock.
“ (Signed) ' T. P. CRESSEY, Clerk.”
(See deposition of Cressey.)
[100]*100. “ After these proceedings,” says Mr. Abbott, “ I think we all believed that we had complied with all the conditions of forming a legal organization. Notice of the election of these officers was published in the Dover Grazette, and I, at least, thought we had done everything required by straightforward dealing in the matter of organization. Of your intention to organize legally and completely, I think there could be no doubt at that time.
“ In June, however, a complaint was made to the supreme court by the conservative members of the Unitarian society, asking that an injunction should be issued restraining us from occupying the Unitarian church. * * * Your council in the case denies the existence of any independent society, declares that you occupy the church as Unitarians and nothing else, and hence makes it appear that, contrary to all my public statements, I am still the preacher of a Unitarian society. Such is his argument, as contained in his printed brief, and published to the community. He holds the opinion that your success in the pending law-suit depends on the validity of this argument, and that you cannot occupy the church except as a Unitarian society, or the majority of it. By this argument, therefore, he has placed you in a very awkward predicament. If you go on and complete immediately your legal organization, (some trifling details of which, as it turns out, are 'still wanting), he says you will lose the church ; but if you wait and win the case by means of his argument, I believe you will lose what is worth infinitely more than the church, namely, the principle for which we contend.
“ We have taken the ground, publicly and privately, that we are an independent society: can we afford to win our suit on the ground that we are not ? The case will not be decided till late in December. You have ample time to set this matter right. In my opinion, honor and integrity are at stake. Only one course seems to me just and right, — to organize at once, in accordance with the letter of the law, and then run the risk of losing the church. To postpone all action on the matter, and to hold the church until after December as a majority of the Unitarian society, notwithstanding our public profession of being an independent- society, this is a course I cannot adopt myself, or be a party .to; either directly or indirectly. I remained with you solely on condition of your forming an independent society, having a perfect right to sayón what terms I could or could not conscientiously remain. I understood you to agree to comply with this condition. You and I both thought that it had been fully complied with. * * * I told you at the start I could not preach to a Unitarian society. You respected my scruples, * * * and consented to form an independent society.”
Jasper H. York,ein his deposition, states that he is one of the wardens of The First Unitarian Society of Christians in Dover, for 1868; that it was several weeks after Abbott’s pastoral relations to the society ceased, on the 1st of April,before he preached again in the meeting-house; that it was not till after his meeting in American hall; says that he [101]*101(York) never gave permission to said Abbott to return to said church to preach, but that he did give such permission to the executive committee of the independent society. He is asked, — “Who are the executive committee of said independent society ? When and where were they chosen ? ” He answers, — “ Z. S. Wallingford is one, and 1 think J. B. Folsom and Lucias Everett are the other two. I don’t recollect when they were chosen ; they were chosen between the two adjourned meetings of the Unitarian society, or immediately after the last adjourned meeting. They were chosen before Mr. Abbott began to preach in the house, in May, at the house of Mr. Wallingford.” Again, ho says, — “ I never was chosen one of the executive committee of the independent society; I think I was appointed one of a committee of three to nominate an executive committee.”
Immediately after Mr. Abbott had preached his farewell to the independent society, the” plaintiffs proceeded at once and took the deposition of Cressey, in order to find, if possible, the records of this society, which until then nobody had been able to find. In his deposition, taken October 15th, he discloses the facts stated by Mr. Abbott. He finds and produces the records of the society, and annexes them to his deposition, confirming Mr. Abbott in every particular. On cross examination, lie is asked by Mr. Wheeler, his counsel, as follows: “ About the time of commencing taking testimony in this case in June last, did not the defendants’ counsel call upon you for information respecting the formation of an independent society, and for any records thereof? If so, what was the-result?” Ans. — “He did. I told him there had ■ been none formed, * * * and I did not think enough of these minutes to mention them to him.”
Mr. Cressey also says that Mr. Abbott, in September, 1868, “ sent in his resignation, and that some of his friends met at Mr. Wallingford’s, and as signers of a subscription paper, to raise money to pay him for preaching, accepted his resignation.”
It thus appears that this subscription paper, designed to constitute an independent society, was got up and signed between the two adjourned meetings of the Unitarian society, liolden the 13th and 27th of April; that the independent society itself was organized about the same time, or immediately after the second adjourned meeting, April 27, and that these men, — Wallingford, Everett, and Folsom — the men with whom, Mr. Abbott says, in his answer, he made the contract to preach that year, — were at this time acting as executive committee temporarily of said independent society, which had had probably several meetings before that of June 9, which appears from the records to have been an adjourned meeting, at which Dr. York, as a member of a committee chosen at a former meeting, upon the subject of permanent organization, then made a report, recommending a set of permanent officers of the society, who were then chosen “ for the ensuing year,” and who took the oath of office as wardens and clerk. After April 1,1868, Mr. Abbott was employed by an independent society as its teacher and preacher. His subscription was raised by. the members of such inde[102]*102pendent society, as such, distinctively and specially. He was employed to preach to 'such independent society, and did preach to it, and when he closed ho tendered his resignation to the same independent society, which met, and accepted it, and discharged him, and closed up the contract, though for certain reasons of policy it was then thought best to ignore the name of the independent society. The Unitarian society had nothing to do with electing, or contracting with, or employing, or paying, or consulting with, or dismissing Mr. Abbott; in fact, that society had nothing to do with him, except that he was allowed by the wardens of said Unitarian society to occupy their house and preach his anti-Christian doctrines there, as the plaintiffs claim, in well known disregard and violation of their duty as such wardens.
What the defect in their organization was that prevented this independent society from becoming a legal society for all purposes, we are not informed. Whether in fact there was any such defect is not made certain, and we are led to doubt it. But if there was, it does not alter the case at all. That there was for a time such a society in fact, of which these defendants were acting members, many or all of them, there is no doubt; and that its purposes and objects were directly hostile to the purposes and objects of the Unitarian society is equally apparent, and must have been equally well known to its members; and so far as it affects the good faith of its members, it is entirely immaterial whether the independent society became fully organized as a legal society or not. If there was any defect in completing its organization, it was, no doubt, as Mr. Abbott says, owing to the notice which was served upon defendants of the commencement of legal proceedings, for we find that the next day after the independent society had chosen its officers “ for the ensuing year,” the plaintiffs served a notice (June 10) upon them, describing them as being in fact members of the independent society, citing them to appear before the supreme court at its law term, to be held June 16, at Exeter, when a\l at once, “ in the twinkling of an eye,” this independent society, which had been in existence as it would seem for about two months, raising large sums of money by subscription among its members for the promotion of its objects, which had contracted for a preacher for the year, had organized as a corporate body, assumed a corporate name, had elected its permanent annual officers, and kept and preserved a record of its doings, and had published a notice of its. proceedings and doings in the public newspaper, is ignored and abandoned, and its very existence is denied by the defendants, except Mr. Abbott, who alone, of all this independent society, as it would seem, is willing to admit the whole truth and abide the consequence. Eor a time the defendants seemed disposed to deceive Mr. Abbott by pretending to be independents, when their secret design was to continue with the Unitarians, and not form any independent society in fact; and this seems to have been their view up to the time of the third parish meeting of the Unitarian society, April 27, the next day after the first meeting of the independent, society in American hall. But some six weeks after this, as Mr. Abbott says, or early [103]*103in June, lie became convinced 11 that the independent society must either complete its legal organization, or else come under the suspicion of being a nonentity, a mere blind for deceiving the public in regard to the real nature of our movement.” Perhaps he became convinced that such had been the real purpose and object of the defendants (except himself) thus to deceive the public; but such was not his purpose, nor could he be long deceived or blinded in regard to their true objects. He, therefore, early in June, insists that the proper steps be taken to organize the independent society. They comply with his wishes, and vote to complete their organization as an independent society, and go on, and, in fact, organize, adopt a name, dhoose their permanent officers for the year, choose a committee to draft by-laws to be submitted at an adjourned meeting which was appointed for June 16, and adjourned, all believing that their organization was complete and legal, and all intending that it should be so.
The defendants intended at that time to form the independent organization, and intended to leave and abandon the Unitarian society; and when they completed, as they supposed, the organization of the independent society, they left, withdrew from, abandoned, and seceded from, the old Unitarian society of Christians forever. Though they had been long hesitating, and though they might never have come to that point, except for the influence which Mr. Abbott exerted over them, yet they did finally come to the point of abandoning the old society and forming a new one, whose creed or sentiments, so far as it had any, were antagonistic to those.of the old society. At that time (June 9), at the close of their meeting of that day, most of these defendants had not the most remote idea of ever going near the old Unitarian society of Christians again. They had seceded from that society, and formed a new and entirely different society, in which their future home was to be,— a society so hostile, in all its views and doctrines and aims and purposes, to the old society, that no man could consistently belong to both at the same time. This was thoroughly understood by Mr. Abbott, and was thoroughly explained by him to these defendants, and they were made to understand it as he did, so that they all intended, when the independent society was fully formed and organized, as they all supposed, and they had become active members of the same, to abandon and secede from, and did, in fact, abandon and secede from, the Unitarian society of Christians forever. This we find to be the fact upon all the testimony in the case. Had it not been for the facts disclosed in Mr. Abbott’s farewell discourse to this independent society, we might never have found the evidence of its organization by these defendants. If Mr. Cressey’s statement in his deposition can be credited, he had concealed, even from his own counsel, all knowledge of the existence of such society and of its records. Whatever we may think in relation to the truth of that statement, it is certain that from the moment there was any notice of the commencement of legal proceedings, these facts were attempted to be concealed from everybody else, and especially from these plaintiffs and their counsel. Whoever drew Mr. Abbott’s [104]*104answer for him evidently had the same object in view, as will be seen by an examination of its terms; but when Mr. Abbott is finally forced in self-defence to disclose all these facts in October, then the plaintiffs find who wms the sworn clerk of this independent society, and where its records are, and what they are, and show up the whole thing.
The only evidence which the defendants introduce to meet or answer this is, that an interview took place one Sunday between Mr. Wheeler, the defendants’ counsel, and Samuel Hale, one of the plaintiffs, in presence of York, at Wheeler’s house, about the 11th of October, 1868, after the suit was commenced, and after Mr. Abbott’s farewell address to the independent society had been delivered and published, where York says that Wheeler made to Hale this proposition, — “To enter the action ‘ Neither party,’ the effect of which is, the suit stops, and each party pays its own cost; each person, who will, subscribe what he pleases for preaching; the wardens to apply to the Association for preachers, and the desk to be supplied in that way.” York says that Wheeler stated at the time that he made this proposition on his own responsibility, but he thought the defendants would assent to it. But York says that he (himself) objected to it, and it does not appear that besides Wheeler and York, this proposition ever came to the knowledge of any of the defendants until York’s deposition was taken, or that any of them ever assented to it. York says that Hale never accepted the proposition; but he does not say that he ever refused to accept it, or that the subject was ever again alluded to by anybody.
Now, if Mr. Wheeler had had full authority to make this proposition, it would have been clearly incompetent as evidence upon any ground. 1. Plaintiffs could not have introduced it against the defendant, because it was simply an offer to compromise an existing suit, which is never admissible. 2. The defendants could put in their own sayings, their own statements, in their own favor, to make out their own case. This is too well settled and too plain for argument. 3. But Wheeler had no authority to make the proposition, and he so explains it at the time, so that nobody would be bound by it if it were accepted ; and there is no evidence that the defendants ever ratified or assented to the proposition. 4. And, even if made by authority of the defendants, and if it were competent, it bound the defendants to do nothing. The effect of it would simply be to release the defendants from the pending lawsuit, without any consideration, either present, past, or future. Defendants did not agree to subscribe a dollar. The contemplated subscription was to be entirely voluntary, and the defendants would not one of them, probably, have troubled themselves about the old Unitarian society, after they were well out of the lawsuit; but they could go along with their independent society then without fear and without hindrance. They might well consent that the pulpit of the plaintiffs’ meeting-house should be supplied by the Unitarian society, when they themselves were not to be responsible for any of the pay for the preaching. We think the defendants might as well have omitted this last effort on their part towards making out their defence. We fail to see [105]*105any evidence here that the defendants had not, most of them, joined the independent society, and had not seceded from and abandoned the old society.
Mr. Abbott says, — “ We have taken the ground, publicly and privately, that we are an independent society,” and of course, as he would have us infer, not the Unitarian society, or any portion of it; and such was the fact. These defendants, in the early part of June, 1868, were claiming to be an independent society, both publicly and privately, and were claiming to act as such in hiring Mr. Abbott, and were not claiming to act as any part or portion of the Unitarian society. They saw the inconsistency and impropriety of attempting or claiming to act in both these capacities at the same time. Mr. Abbott refused to be the preacher to the Unitarian society, or to any part or faction of said society, and the defendants had finally come, though late, to adopt his views, and had now formed the independent society in order to be able to retain his services, which they could not do as any part or portion of the Unitarian Society of Christians.
“ We have taken the ground, publicly and privately, that we are an independent society,” and not any part or portion of the old Unitarian Society of Christians, says Mr. Abbott, in substance; and no one denied the charge at the time, or does deny it in the evidence, though all the defendants (except Abbott) stoutly deny it in their answer; but the evidence establishes the fact beyond all question, notwithstanding the denial of the answer. The necessity of forming the independent society was, to accomplish an object which could not be accomplished by the defendants as a part or portion of the Unitarian society. Mr. Abbott was not employed by the old society of Unitarian Christians, or by anybody in their behalf, nor by any part or faction of said old society as such, for the simple reason that he would not be employed by them, and would not preach to them, or any part of them, as Unitarians or as Christians, or as members of a society that was called by that name. These defendants must not only fonn an independent society, but they must cease to be members of the Unitarian society of Christians in Dover, in order that they might be able to treat with Mr. Abbott, and secure his permanent services as their religious teacher and preacher.
To be sure, our acts of 1819 and of 1827 provided a way by which any member of a religious society might withdraw and cease to be a member of the same, simply by leaving a notice in writing to that effect with the clerk of such society. 2 N H. Laws (1824) 45; N. H. Laws (1830) 463. This furnished an easy method by which any member might withdraw from any religious society at pleasure, and terminate all liability as such member; but it does not follow by any means that this was the only way that a person could cease to be a member of a religious society. He might cease to be a member without giving the notice in writing, as was expressly held in Baptist Church v. -Bouse, 21 Conn. 164, where it was held that though no such notice was given, yet that all the circumstances of the ease might properly be submitted [106]*106to the jury, to find, as a question of fact, whether there had been a secession from the old society or not; and in settling that fact, not only all the acts of the parties, but more particularly, their intentions, were material. The acts and motives, which were held to be material, were evidences of intention, and the fact of secession is to be found or not upon all the evidence in the case, including acts with the motives that influenced them, and the circumstances under which they were performed, and more particularly the intentions with which they were done. ‘The real intentions of the parties at the time would be of great and generally of controlling weight in the settlement of such questions of fact. Wiswell v. First Congregational Church, 14 Ohio St. 32; Dublin case, 38 N. H. 459.
Having found as matter of fact in this case that these defendants had, on or before the 9th day of June, 1868, not only as they supposed formed a new and ail independent society “ for the promotion of free religious principles,” but had abandoned and intentionally seceded from The First Unitarian Society of Christians in Dover, it follows that they forfeited all right to that society’s property or any part thereof, or to the use of any property which belonged, or the use of which belonged, to the old society, and hence have no further claim to the use. of the meeting-house in question for any purpose whatever. Hence it follows that the injunction asked for in this case should be 'granted, as well upon the facts of the case as upon the law.
We find that any claim that was made, if any was made, after the meeting of April 27, 1868, by most of these defendants to be members of the old society, and especially after they had fully determined to form and organize their new independent society, was simply a pretence, and without any foundation in fact; but as soon as the legal proceedings are commenced, and it is found that their success in the lawsuit may depend upon the fact as to whether they are members of the one society or the other, and when it is supposed that in order to succeed in this suit the existence of the independent society must be denied, and that they must still claim to be members, of the Unitarian society of Christians, we find the defendants ready to take both positions, that they are still members of the Unitarian society of Christians, and that they are not and have never been members of any independent society, and are willing to deny the existence, of -any independent society altogether. Their claims to be still members of the Unitarian society of Christians have just the same foundation that their denial of the existence of the independent society rests upon, which is simple assertion, unsupported by facts. The facts are all found to be the other way.
When Mr. Abbott saw how ready most of these defendants (except himself) were to abandon the independent society, and even to deny its very existence, after all that had been done by said society, and how ready they were to assume any new position that might seem necessary ; when he saw how ready they were even to desert and betray him, and to compromise their own consistency and integrity, for the sake of success in a paltry suit at law, it is mot strange that he left them [107]*107wlien his year, for which he had engaged, was but half completed. His last prayer in Dover was, most probably, that he might be saved from his friends.
He seems to have understood their true position, when he suggested that, after having taken the ground, publicly and privately, as they had done, that they were an independent society, and were acting as such, they could not afford to win their suit on the ground that they were not, and when he boldly suggested to them that their honor and integrity were at stake, and could only be preserved by moving forward as an independent society, and abandoning the false position (in which they seemed willing to put themselves, in the hope of a temporary advantage in their suit) of claiming to be members of the old society, which they had abandoned and seceded from. Fortunate would it have been for these defendants had they listened to this last admonition of their religious teacher, and followed his friendly advice and timely counsel in this matter of worldly concern, as they had long been doing in all matters that related to their religious aud spiritual interests; for, although by that course they might not have won their cause in the suit, yet they would have gained what would have been infinitely better.
Since preparing the foregoing opinion, I have read the first draft of the able and ingenious dissenting opinion dn this case, and wish to make a few additional suggestions, partly in reply to that opinion, and partly in illustration of the grounds upon which the foregoing opinion is based, and I prefer to make them in this connection rather than by way of a separate reply to the dissenting opinion. It is claimed, and many arguments are used to convince us, that the word Protestant, as used in the constitution of this state, has the sole meaning of anti-Roman Catholic, and that the word as there used was intended to cover and include all other classes, sects, and denominations, whether of Christians or of any other religion. Let us, in addition to the authorities already cited in this opinion, look a moment to see how the word had been used in the province of New Hampshire before the constitution, and how the same word had been used in England du’ring the same period.
The political organizations of the colonies were classed and known' as provincial, proprietary, and charter governments. New Hampshire, with others, belonged to the first of these classes, — provincial governments. “ These had no other written constitutions or fundamental laws than the commissions issued to the governors appointed by the crown, explained by the instructions which accompanied them. The governor, by his commission, was made the representative or deputy of the king, and was obliged to act in conformity with the royal instructions. He was assisted by a council, the members of which, besides participating to a certain extent in the executive functions of the government, constituted tlie upper house of the provincial legislature; and he was also-authorized to summon a general assembly of the representatives of the-freeholders of the province. The three branches thus convened, con[108]*108sisting of the governor, council, and representatives, constituted the provincial assemblies, having the power of local legislation, subject to the ratification and disapproval of the crown.” 1 Curtis’s Hist, of Const. U. S. 4; 1 Story on Const-., sec. 159.
The only written constitution which New Hampshire had, from the year 1679, when she was separated from Massachusetts and erected into a separate provincial government, was the commissions of her several governors or presidents, beginning with that of President John Cutt, in 1679; and this commission was printed at the commencement of the volumes of the N. H. Provincial Laws, just as the constitution now is. The commissions of the other presidents and governors, from Cutt down to the last Governor Wentworth, were, in the main, substantial copies of that of Cutt. N. H. Laws (of 1771) 1; 8 N. H. Historical Collections 1, 455, 456 ; 1 Story on Const., sec. 80 ; 1 Robertson’s Hist. U. S. 398, and seq.; Hutchinson’s Collections 522; Barber’s Hist, of N. Eng. 41; Belknap’s (Parmer’s) Hist, of N. H. 88; 1 Provincial Papers N. H. 373, 433.
“ Governor Wentworth, in his last message to the assembly of the province, referred to the commission appointing President Cutt and a council as having ‘ laid the foundation of the constitution by which the province has since been governed,’ and said (the laws of the province rest upon this foundation.’ ” State v. Rollins, 8 N. H. 562.
In this commission to President Cutt, is this language: “And above all things we do, by these presents, will, require, and command our said council to take all possible care for the discountenancing of vice, and encouraging of virtue and good living, and that by such examples the infidel may be invited and desire to partake of the Christian religion; and, for the greater ease and satisfaction of the said loving subjects in matters of religion, we do hereby require and command that liberty of conscience shall be allowed to all Protestants ; that such especially as shall be conformable to the rites of the church of England shall be particularly countenanced and encouraged.” 8 N. H. Hist. Collections 5 ; 1 Provincial Papers N. H. 373, 378.
Under this commission to Cutt, the councillors were qualified, and a general assembly elected ; and, at a meeting of the governor, council, and assembly, at Portsmouth, in March, 1680, the first code of laws was passed in the province of New Hampshire. 8 N. H. Hist. Coll. 10, and seq.; 1 Prov. Papers of N. H. 383, and seq. Among the capital laws, the first that was passed was against idolatry. If they had understood that the term Protestant, in their constitution, to all of whom liberty of conscience was allowed, embraced all but Roman Catholics, then it of course embraced pagans, and they would hardly have provided first of all for punishing them all with death for exercising the liberty of conscience which was specially guaranteed to them in the constitution. Their second capital enactment was against blasphemy. Among their criminal laws were acts against profane swearing, profaning the Lord’s day, and contempt of God’s word and ministers. Neither tlieir Christianity nor their Protestantism included Jews, Mohammedans, pagans, or infidels.
[109]*109A similar commission issued to Edward Cranfield as Lieutenant-Governor, in 1682; and at a meeting of the governor and assembly, Nov. 14,1682, various other laws were passed, and some of the former acts were modified; but the act against idolatry was not changed, though the same liberty of conscience is allowed to all Protestants in that commission as in the one to President Cutt. 8 N. H. Hist. Coll. 85; 1 Provincial Papers N. H. 433, 439, 444, and seq. -Thus, the only constitution which the province of New Hampshire had, from 1680 to 1783, viz., the commissions to the presidents and governors, had made provision that all possible care should be taken for the discountenancing of vice, and the encouraging of virtue and good living, so that by such examples the infidel might be invited and desire to partake of the Christian religion, and for the liberty of conscience to all Protestants.
Soon after the commission to President Cutt containing the Protestant clause above quoted, a new charter was issued to Massachusetts containing provisions similar to those contained in Outts’s commission, and in that charter, granted in 1691 to Massachusetts, it was provided that there should be “ a liberty of conscience allowed in the worship of God to all Christians except papists; ” and under this charter the province of Massachusetts was governed until the revolution. Colony and Province Laws of Massachusetts (1814) ; 1 Holmes’s Annals 436 ; 1 Hutchinson’s History 415, 416; 1 Story on Const., sec. 71.
The commission to President Cutt, which was substantially the constitution of New Hampshire from 1679 until the revolution, provided for “liberty of conscience to all Protestants,” while the Massachusetts charter, granted a few years later (1691) and continuing in force until after the revolution, provided for “ liberty of conscience * * * to all Christians except papists.” These two forms of expression were, and were intended to be, synonymous. The term “ Protestant ” was then and has ever since been used to include and describe “ all Christians except papists.” If the charter of Massachusetts had allowed liberty of conscience to all subjects, or to all men, or to men of all religions except papists, it might be an argument for the position that tho-term “ Protestant,” when used in a similar instrument, in connection with the same subject-matter, a short time before, was intended to include and describe the same class of persons, though it had never been used in that sense before.
But here we find the same government granting charters to two adjoining provinces with similar interests, inhabited by people of the same lineage, language, customs, and religion, at about the same time, — said charters containing similar general provisions and designed for the same general object. There certainly is no apparent reason why the liberty of conscience granted by each should not be the same, and granted to the same class in each. Such was no doubt the intention; and, if the government of England had been asked what they meant by the expression “ all Protestants ” in the first, they could not have answered the question with greater technical exactness and truth than they did [110]*110by the expression in the second, of “ all Christians except papists.” But that is not all. This same charter of Massachusetts, immediately after granting liberty of conscience, &c., provides that all subjects inhabiting in the province, and their children, shall have all the liberties and immunities of free and natural subjects, as if born within the realm of England. 1 Story on Const., sec. 71.
Here certain rights and immunities are expressly granted to all subjects, certain other rights to all Christians except papists ; that is, to all Protestants, — the term Christian being understood and used by them to include all who believed in or gave their assent to the -Christian religion, including papists and Protestants. But “ all Christians except papists,” in the one case, or “ all Protestants ” in the other, did not include all subjects except papists, or anybody besides Christians, and especially did not include “ the infidel,” whoge conversion to the Christian religion it was considered by them important “ above all things ” to secure.
Let us also examine for a moment the constitution which was proposed to the people of New Hampshire in 1779, and which was by them rejected. 4 N. H. Hist. Coll. 154. In the bill of rights of that constitution, Art. 5, it was provided, among other things, that the future legislature of the state shall make no laws “contrary to the laws of God, or against the Protestant religion.” Id. 155. Here Protestantism is recognized as a religion, which it could not be if it was merely a negative. To' be anti-papist does not constitute a religion. But that constitution went further than this. In the plan of government, Art. 8, was this provision: “ all the male inhabitants of the state, of lawful age, paying taxes and professing the Protestant religion, shall be deemed legal voters in choosing councillors and representatives,” and having in addition to the above certain property qualifications, “ shall be capable of being elected.” Id. 157. By that constitution, if adopted, there would have been a Protestant test, not only in regard to councillors and representatives, but in order to be a legal voter, a man must be one “ professing the Protestant religion.” But a man need not profess any religion to be anti-Roman Catholic. If all that was intended had been to require that such person should not be a Roman Catholic in order to entitle him to vote, it would have said so in plain words-, and then the door would have been open for all others —Jews, pagans, and infidels — to have asserted their rights. But something more than that was intended. To be a voter a man must profess a religion, “ the Protestant religion,” the religion of Protestants, which was tire Christian religion as embraced by all Christians except papists.
The pilgrims and other early settlers of this country, and particularly of this state, did not come here to escape .Roman Catholic persecution, but the persecutions of the Church of England, one branch of the Protestant church, and their design in coming here was not so much to found a state that should be anti-Oatholic, as one that should be particularly -Christian; founded less, in fact, upon the constitution [111]*111or laws of England, than upon the Bible as the law of God; and opposed to the Church of England, not so much in matters of doctrine, as in their views of church government, of ecclesiastical polity, discipline, and worship. But they were Protestants, whose religion did not so much consist in opposition to papacy or the Church of England, as it did in being Christians. They were Protestants because they were Christians, first and primarily; and next, because they did not subscribe to the papacy. It was not a Protestantism which contented itself with simply differing from Rome, and had no system of faith of its own, — a Protestantism that would include pagans and infidels, as well as Christians.
Bancroft says, — “ The settlement of New England was a result of the reformation, not of the contest between the new opinions and the authority of Rome, but of implacable differences between Protestant dissenters and the established Anglican church.” 1 Bancroft’s Hist. U. S. 266, 278; 1 Neal’s Hist, of Puritans 121; 1 Hallam’s Hist. England 140 ; 3 Turner’s Hist. England 140 and seq. He further says that the system of religion revealed in Judea “ was professed in every part of our widely extended country, and cradled our freedom ” — 2 Bancroft’s Hist. U. S. 454; and he adds, — “ Our fathers were not only Christians ; they were, even in Maryland by a vast majority, elsewhere almost unanimously, Protestants” — 2 Id. 456; and their Protestantism was a protest against the supposed errors of the Church of England as well as those of the Church of Rome, and their object was to found a church and a government according to the word of God, Christianity being its great foundation stone, and freedom its main pillar of support. Belknap’s Hist. N. H. 42, 43. Robertson’s Hist. U. S. 408 ; Lowell Institute Lectures (1869) 383 and seq.; 403 and seq. (lecture of Judge Parker); Baird’s Religion in America 578; 1 Story on Const. U. S. 42, 43, 49, 54, 65.
And at the time of the formation of the constitution, the great mass of our people, as we have already seen, were Congregationalists, who were first Christians, and next Protestants, and then Congregationalists, opposed alike to popes and hierarchies and councils, and who insisted, first and last and altogether, upon the Bible as the direct and only revealed will and law of God, as a perfect rule of faith and practice, as the only sure guide in ecclesiastical polity, discipline, and worship. To them the Bible was the fountain of all religious truth, the standard by which to judge of all systems of faith and doctrine, all forms of church government and modes of worship, the test by which everything that claimed to be true in religion was to be tried. They believed in Jesus Christ as the true Messiah, the Christ of God, and that all which he taught in the New Testament concerning himself and his system of religion was true; that all the doctrines which he taught were true; that Christ was himself “ the way, the truth, and the life.” Such was their Christianity and their Protestantism, as was that of most of the New England states, — while in the Southern states, the wor= . ship of the Church of England had been received with more favor; and [112]*112they were satisfied with being first Christian and then Protestant, without adding to these the feature of independency. It is not strange that in their constitutions they should in some way show their preferences for Christianity, and for their particular form of Christianity, Protestantism, and also for their particular feature or type of Protestantism. Hence we are informed that, as the colonial period drew to a close, “ there were only two colonies in which the civil power did not employ its influence in supporting one or other of the two communions • or churches. In New England it gave its support to Congregationalism, or, as it is called in Britain, independency, that being established in all the colonies of that province, with the single but small exception of Rhode Island. In the colonies to the south of these, from New York to Georgia, with the exception of Pennsylvania, episcopacy was the favored doctrine.” Baird’s Religion in America 184; also, Book 2, chaps. 16, 17, 18.
But let us look a moment at the constitutions of the other states in the Union, formed about the same time that ours was, — for this may throw light upon the terms we are considering, and show the meaning attached to them at that time. Mr. Bancroft says, — “ Had the Americans been skeptics, had they wanted faith, they could have formed nothing. Let not the philosopher hear with scorn that their constitutions were so completely the offspring of the past, and not the phantoms of theories; that at least seven of them required some sort of religious test as a qualification for office. In Maryland and Massachusetts, it was enough to declare belief “ in the Christian religion;” in South Carolina and Georgia, in “ the Protestant religion, and the divine authority of the Old and of the New Testaments;” in North Carolina, “in God, the Pi’otestant religion, and the divine authority of the Old and New Testaments.” In Pennsylvania, the test was “ a belief in God, the Creator and Governor of the universe, the rewarder of the good and the punisher of the wicked,” with a further acknowledgment that “ the Scriptures of the Old and New Testaments were given by divine inspiration.” Besides this last acknowledgment, Delaware required the officer to “ profess faith in God the Father, Jesus Christ his only son, and the Holy Ghost — one God, blessed forevermore.” 9 Bancroft’s Hist. U. S. 274, 275. He omits to mention New Hampshire, and some' other states that had a religious test. He then adds,— “These restrictions were incidental reminiscences of ancient usages and dearly cherished creeds, * * * and for a season, in the states where they were established, they created discussions chiefly on the full enfranchisement of the Catholic and the Jew, and they were eliminated almost as soon as their inconvenience arrested attention. At first, the Jew was eligible to office only in Rhode Island, New York, New Jersey, and Virginia; the Catholic in these states, and in Massachusetts, Pennsylvania, Delaware, Maryland, and perhaps Connecticut. . But the great result was accomplished from the beginning ; * * * nowhere was persecution for religious opinion so nearly at an end as in America; and nowhere was there so religious a people.” Id. 276.
[113]*113In the four states in which the Jew was at first eligible to office, according to Mr. Bancroft, no test, either Christian or Protestaut, was required. Wherever either of those tests was required, the Jew was excluded. The Christian test admitted the Catholic and the Protestant, while the Protestant test excluded both the Catholic and the Jew. No claim here that the word Protestant, in any constitution of any state, was broad enough to include all but Catholics. No question probably arose concerning pagans, Mohammedans, or infidels, from the fact that none openly claiming to be such were elected to office in any of the states where either of these tests was required; or if so, the test was not insisted on, for some special reason. It is very apparent that if Jews could not properly be classed as Protestants, as they were not, neither could pagans or infidels.
Dr. Baird, in his Religion in America, ch. 8, gives a more full and detailed account of the forms of the constitutions of the several states. He states that Virginia is silent upon the subject of Christianity and Protestantism. Rhode Island and Connecticut had adopted no constitutions. They were'of Puritan origin, and the charters of both were based on religious principles, and remain as their present constitutions. New York had no test. New Jersey’s constitution provided that “ all persons professing a belief in the faith of any Protestant sect * * * should be capable of being members of either branch of the legislature, and should * ® * enjoy every privilege and immunity enjojmd by others, their fellow citizens.” Baird’s Rel. in Am. 248. But there was no disfranchisement of those not “of any Protestant sect,” and no test was actually required of any one. 9 Bancroft’s Hist. U. S. 279, note. Dr. Baird then speaks of the requirements of the several states of New Hampshire, Massachusetts, Maryland, and others that we have noticed, and adds, — “ Such was the character of the state constitutions in the opening scenes of our national existence. Of the thirteen original states, the organic laws of all but one expressly enjoined the Christian religion, and, almost without exception, the Protestant form of Christianity. * * * I repeat, in few words, that the state governments were founded on Christianity, and, almost without exception, on Protestant Christianity. * * * This is the present position of the governments of the several states of the American Union. Their legislation, while it avoids oppressing the conscience of any sect of religionists, is still decidedly favorable in general to the interests of Christianity.” Baird’s Religion in America 252 ; 1 Story on Const., Book 1. “All the new states, when they cut loose from the mother country, had a favored form of religion which they had adopted as a state religion, or one which they were patronizing, and in their new constitutions they to a great extent endeavored to preserve the same favorite system; but, failing in this, as many of them' did, they fell back upon the Christian religion generally, or, when they could, upon the Protestant religion, which included all the Christian sects, or denominations, except Catholics ; and these tests were continued in the constitutions of a majority of the original states.”
[114]*114There is no doubt that the same words in the constitutions of the different states meant the same thing, and the same was true'concernning the laws that were passed under the different constitutions about the same time. It is said to have been through the influence of Mr. Jefferson that the word Christian or Christianity was not contained in the constitution of Virginia; and in his famous act for establishing religious freedom, adopted by the legislature of Virginia in 178,5, which did not contain tire word Christian or Christianity at all, but left every one free to believe and worship, or to disbelieve and refuse to worship, as he pleased, it is said to have given him great satisfaction because it was made to “ comprehend within the mantle of its protection, the Jew and the Gentile, the Christian and the Mohammedan, the Hindoo and the infidel, of every denomination.” Baird’s Religion in America, Book 3, ch. 3. He evidently understood that a Christian test would exclude the infidel just as much as it would the Mohammedan and the Hindoo. So a Protestant test would exclude all not Christians on one side, and Roman Catholics, who were Christians, on the other side. If Protestantism would include Mr.-Abbott in tliis case, it would of course include Thomas Jefferson, and by the same rule also Thomas Paine, whom Gov. Plumer of New Hampshire called “ that outrageous blasphemer,” that “ infamous blasphemer,” “ that miscreant Paine,” whose “Age of Reason” Plumer had read “with unqualified disapprobation of its tone and temper, its coarse vulgarity, and its unfair appeals to the passions and prejudices of his readers.” Life of "Win. Plumer 242, 243. But if Protestantism includes all but Roman Catholics, then Thomas Paine, in writing his Age of Reason, was preaching Protestantism, as truly as Wliitefield or Wesley or Edwards while preaching the gospel of the Messiah, the Christ of God; for Thomas Paine and all other atheists, deists, theists, and infidels, of evei’y stamp, and all pagans, "were no more Roman Catholics than were Wliitefield, Wesley, or Edwards. Mr. Abbott denies that he is a Christian, and so did Jefferson and Paine, and that was honest in all of them, and was the simple truth ; and because they were not Christians, they were not and could not be Protestants, as Mr. Abbott truly declares, Protestantism being only one branch of Christianity. Thomas Paine and his followers were neither Christians nor Protestants; neither were the Mohammedans, Hindoos, and infidels of Jefferson’s time; neither are the theists, the free religionists, and infidels of the present day.
It seems unnecessary to examine much further the provisions in the constitutions of the other states. Virginia and New York had no tests; anybody who could get elected, might, so far as religious opinions or professions were concerned, hold any office. Some of the states had simply a Christian test, as Maryland, and there all Christians, whether Catholic or Protestant, were eligible to office. In others, and by far the larger number, there was at first a Protestant test, which only admitted one of the great divisions of Christianity to the exclusion of the other from certain offices. Under neither the Christian nor the Protestant test could a Jew hold any office in this country or in England until the [115]*115constitutions were amended here, and special acts of parliament passed in tlieir favor in England. 9 Bancroft’s Hist. U. S. 275 ; 1 Black. Com, 375, 449 ; 4 Black. Com. 52, 57, 58, 59, 272.
In England there was the national church which was Protestant, and besides that there were papists and Jews and Mohammedans and infidels and Protestant dissenters. These were all dissenters from the Church of England, and all anti-Catholic, and if the term Protestant included all who were not Romanists, then they were all Protestant dissenters. But such was not the meaning of the word Protestant in England at that time, or at any time since. Protestant dissenters included only such Christian sects as dissented from the Church of England, and also from che Roman church. The edicts of the government were against Jewr, pagans, Turks, infidels, papists, and Protestant dissenters, showing that the term Protestant did not include infidels, any more thanit did Turks and pagans.
In England, formerly, Unitarians were not recognized as a sect of Christians, because their faith was prohibited by law. They were then classed as a kind of infidels, and so long as they were not reckoned as Christians, they could not properly be reckoned as Protestants. Drummond v. Attorney-General, 2 English Law & Eq. 15, was a case decided in the House of Lords in 1849 or 1850, where one question was, whether Unitarians were Protestant dissenters or not. It was admitted that they were and always had been dissenters from the Church of England, and that they were not and never had been Catholics. But it was expressly held, that while they were not recognized as Christians, they could not be Protestants; that to be Protestant dissenters, they must be first Christian dissenters; and, second, that they must not only be Christians, but anti-Catholic. To be Protestant dissenters, they must be Christian as well as anti-Catholic dissenters from the English church. This case covers the ground from 1710 to 1850, and shows that such and such only was the meaning of the word Protestant in England during all that time.
In 1835 the state of North Carolina amended her constitution. Before that time, she had a Protestant test similar to that in bur constitution, under which none but Protestants could hold certain offices in the state. The people wished to enlarge this test so as not to exclude Roman- Catholics, but they did not therefore propose to abolish the test altogether, so as to allow Jews, or pagans, or infidels, to hold these offices ; so they substituted the term Christian instead of the word Protestant. By this amendment all Christians are admitted to these offices, whether papists or Protestants, whereas under the old, only Protestants could thus be admitted; but neither admits, nor was intended to admit, anybody but Christians.
But it is claimed that soon after the formation of our constitution of 1783, William Plumor was elected representative from the town of Epping, and was afterwards elected as senator and governor of the state, all which positions he was allowed to hold without objection on account of his religious views, while it is claimed that he was a deist, a dis[116]*116believer in Christianity, and because he was allowed to hold his seat, and was not forcibly ejected because of his religious belief, or want of religious belief, that therefore lie must have been a Protestant within the meaning of the constitution, and therefore that the term Protestant as there used must have been intended to in'clude all others except papists.
It would seem to be a sufficient answer to this position to state, what everybody knows, that many Roman Catholics have been elected as members of the house of representatives and to other offices within the limit of this test, and have always been allowed to hold their seats without objection. Now it is claimed that the Protestant test was introduced to prevent Roman Catholics from holding these offices, and we have no doubt it was intended to prevent them, with all who did not give their general assent to the doctrines of Christianity, from holding office; that is what we claim, and if the fact that many Roman Catholics have been allowed to hold seats in our legislature without objection does not prove that the term Protestant in the constitution does not mean anti-Catliolic, which no one claims, then why should the fact that one deist was allowed to hold his seat there be held to prove that the same term in the same instrument does not mean anti-cieistical ? If many exceptions on one side are admitted, as they are to prove nothing as against this rule, why should it bo claimed that a single exception on the other side overthrows the rule itself, and that this single exceptional case must be taken to establish the rule in its favor for all time ?
We have no doubt that William Plumer himself understood the term Protestant, in the constitution, to mean just what the majority of the court hold that it means, and that everybody in his time understood it in the same way. We form these conclusions from an examination of the life of Governor Plumer, as written by his son, who was well known to many of us personally, and whose ample means of knowledge in relation to the facts stated cannot be questioned.
In speaking of the proposed constitution of 1779 (Life of Wm. Plumer 49), tlie'author mentions the fact that that constitution made the “ professing the Protestant religion ” a necessary qualification of a voter, as well as a test for holding office in the state. This religious test for voting was then first introduced in that constitution, and was not included in any of the subsequent ones; and the reason of this is stated in the life of Mr. Plumer: “ It is worthy of remark that this religious test, then first proposed, was nearly contemporaneous with the alliance with Prance, which, however beneficial in other respects, was thought by many likely to favor the introduction of popery among us.” But, as we have before seen, this constitution of 1779 was not adopted.
“Another convention was called in 1781, and the constitution proposed by it, after various alteratious and amendments, went finally into operation in 1784. * * *■ It was provided that no person should hold the office of governor, councillor, senator, delegate, * * * unless he were of the Protestant religion. It was in opposition to these intoler[117]*117ant restrictions, and in defence of religious liberty,” that Governor Plumer’s first essay was written. “ In it the broad principle is laid down that all men are equally entitled to the protection of the laws, who demean themselves peaceably as good members of civil society, without reference to their religious opinions; and that any man should be eligible to office who possesses the ability necessary to the discharge of its duties.” “ This communication, which went the full length not of toleration merely, but of religious freedom, as now understood by its most liberal advocates, was far in advance of the times.” “ The printer,” my father writes, “ thinking the religion of the country required such a provision as I opposed, refused to publish what I had written until I paid him three dollars for it.” Life of William Plumer 50, 51.
He adds, — “ The articles of the constitution thus opposed were adopted by the people, and still remain a part of that instrument. Such however was the justice of his strictures, and such the advance of public sentiment on this subject, that these provisions soon became practically obsolete. Men not Protestants, nor even Christians, have been repeatedly chosen to offices which, under these provisions, they were not entitled to hold, and no attempt was ever made to exclude them on the ground' of their religious disqualifications.” Id. 51.
In 1785, William Plumer was elected representative to the legislature from Epping, and was frequently reelected to the same body between the years 1778 and 1801, and for two years was its speaker. He was a member of the constitutional convention of 1791, which framed our' present constitution. In 1810 and 1811, he was a member and president of the state senate. In 1812 he was elected governor, and again reelected in 1816,1817, and 1818. Id. 337, 338. On his first election, in March, 1785, ethis religious opinions had been urged against him in the canvass, and he was told that his seat would be contested on the ground that he was not of the Protestant religion. But no such objection was made to him, arid he held his seat during the three sessions the legislature held that year.” Id. 59. It is not suggested that Mr. Plumer ever contended or claimed, at any time or anywhere, that the fact that he was a deist (if such was the fact) would not be a disqualification for the office, under t)ie provisions of the constitution, if insisted on. He did not understand that he could be a deist and at the same time be “ of the Protestant religion,” within the meaning of the constitution. He admitted that a knowledge of theology and a belief of the truth might be necessary for a religious teacher, but not for the civil ruler or the magistrate, who needed much more to know something of the principles of government and of political science; and that the error in the constitutional requirement was, that it required a religious qualification for a civil office.
He did not understand that he, as a deist, or that any deist, would be included within the words Protestant or Christian, as used in the constitution ; but he seems frankly to admit that he is neither of these. There is no doubt that his son had special reference to his [118]*118father, where he says, as above, that men not Protestants or even Christians, have been repeatedly chosen to offices which, under the provisions of the constitution, they were not entitled to hold. But why not entitled to hold ? Simply because they were not Protestants, as the constitution required they should be. He evidently' was not referring to Catholics, because they were Christians, though not Protestants; but he is speaking of those who were not Protestants, nor even Christians. We cannot doubt that the author of the Life of William Plumer, being at the same time his favorite son and most intimate friend, understood fully and perfectly his father’s views upon these subjects, and that he has, in these expressions, fairly and truthfully represented them.
But let us see whether there was any good reason why there was no objection made to Mr. Plumer in 1785, even though he was constitutionally disqualified for the office to which he was then elected. When about twenty years of age, in May, 1779, after some weeks of the most intense religious excitement, he became a convert to the doctrines of the Calvinist Baptists, under the preaching of Dr. Samuel Shepherd, the third Baptist preacher ever ordained in the state. Prom a convert, he became at once an exliorter, and then a preacher. In one year from the time of his supposed conversion he started on a preaching tour through the state, in which he spent some six weeks, and he continued preaching some six months in all. But by the autumn of 1780 a thorough reaction had begun in all his religious feelings'; — from unlimited faith, he went to the opposite extreme of almost universal skepticism, which ended in deism. By the commencement of the year 1781 he was a confirmed skeptic, and for a short time seemed disposed to advocate these new opinions publicly, as he had the old, before. But, as before, he soon tired of this new excitement, and concluded that the best way was to let every man look after his own religious opinions and religious faith, and that, as for himself, he had better devote himself to his farm, and the study of the law, and the practice of politics ; and this he did.
His son says of him, — 44 The strength of his earnest and confiding faith filled, while it lasted, all his thoughts, and directed the whole energy of his mind to the inculcation of his religious opinions, and with them, as he believed, to the promotion of the highest happiness of his fellow men. But this confiding faith, and more than missionary zeal, were not destined long to continue. A new train of thought and feeling had now arisen, which mastered him as effectually as his former mood, with results more lasting, and, in some respects, less fortunate. * * * The revulsion of thought and feeling was as far, or farther, on the other and the wrong side of a just balance of opinion and sentiment. Driven into the extreme of fanatical belief, under the excitement of fear and the contagion of example, he was carried by a natural but unfortunate reaction into the opposite extreme.” Id. 34.
44 In the first ardor of his change, he sought for a time to make converts to his new opinions. He was, as Mackintosh says of himself, 4 probably the boldest heretic in the county.’ But he soon relinquished the vain ambition of settling the opinions of others, while his own were [119]*119in a state of so much uncertainty. His feelings were those of an inquirer, in doubt as to truth, and anxious chiefly for the solution of that doubt. When he spoke upon the subject, it was therefore not with levity or sarcasm, but with the respect due to long established opinions, and in the tone of inquiry rather than of dogmatic defiance and disbelief.” Id. 40.
It seems that though at first an open and pronounced deist, his ardor soon cooled down, and he came into the condition of an inquirer after truth, speaking not with levity or sarcasm, such as would be likely to offend any one, but he showed respect for long-established opinions, and his tone was that of inquiry, and not of defiance or disbelief. He had learned to conciliate the good will and the good opinions of those about him, and the course he pursued was calculated to make him friends in all circles and denominations, and to disarm and conciliate those who had otherwise been enemies. Again: we must recollect that the country had just passed through the period of the revolutionary war, and that young Plumer liad all along been an ardent patriot and a preacher of liberty (Life of Plumer 44), and had only been restrained from enlisting in the army and marching to Boston at the battle of Bunker Hill in 1776, then only in his seventeenth year, by his father’s direct prohibition (Id. 45) ; that he had ever been ready to suffer chains and imprisonment as a martyr to the cause of his country, if such should be his lot (Id. 44, 45) ; and that in these views he agreed with or led almost the entire community in the state (Id. 45). Such a young man could not fail to be popular among’his associates ; and though in 1785, when he was about twenty-six years of age, some five years after his fiery zeal as a Baptist had burned and cooled, and some four years after his like fiery zeal as a deist had blazed and then gone out, and some three years after he had assumed the tone of inquiry alone, had dropped his sarcasm and had become accustomed to speak of the religious views of others with that respect due to long-established opinions; though at that time there were some who threatened to object to him on the ground of religious belief, or want of religious belief, yet by the course described above, he had disarmed nearly all opposition, and even these faint threats were never carried into .execution.
Another reason why no objection was made to Mr. Plumer was, that no political parties, had at that time been formed, and the rancor and bitterness of political parties were then, to a great extent, unknown in this state. The only parties then known in the state or country were whigs and tories, but in New Hampshire nearly all were whigs; there was no considerable tory party here.” Life of Plumer 45. So that while young Plumer had been for some years pursuing a course calculated to conciliate all parties in religious matters, he belonged to a political party which embraced nearly all the citizens of the state, and the question was not 'then so much upon religious subjects as, upon subjects of civil government. He had been a true friend to his state and country during the revolutionary war, and was now ready to aid in the making of laws in conformity to the new constitution which [120]*120had gone into operation the year before, in which the Protestant cause had received such encouragement as its friends thought proper and desirable. Under these circumstances it is not strange that a young man of promise and known patriotism should be suffered to hold his seat in a body of men nearly all of whom agreed with him in political sentiment, so far as any political sentiment had been developed in the state.
But, let us look a little further at the acts of Mr. Plumer. As we have seen, he was a member of the constitutional convention that sat in 1791, which formed the constitution of 1792, which is still in force. There is but little reported in the journal of the proceedings of that convention, and that little has not been published. But, in the Life of Governor Plumer, his son has been able, as he says, partly from the journal and other papers of the convention, and partly from' his father’s papers, to give some account of these proceedings, and of his father’s connection with them. “ On the subject of religion, he proposed, instead of the former provisions,” an article considered by him much more liberal. “ This amendment,” he adds, evidently expressing the views and opinions of his father as well as his own upon that subject, “ was wide enough to embrace the Roman Catholic on the one hand, and the deist on the other.” Id. 116.
That would be, as he understood it, enlarging or extending the existing Protestant platform, as contained in the constitution of 1783, and which remains unchanged to this time, by putting an addition upon each side of it. On the one side, it would be extended so as to admit the papist, so that it might embrace all the Christian sects, Catholic and Protestant; and upon the other side, the platform was to be enlarged so as to admit the deist, the disbeliever in the whole system of Christianity, and the advocates of all other systems opposed to Christianity. Governor Plumer evidently understood that a Protestant platform would no .more hold a deist than it would a Roman Catholic ; that, to hold either, it must be enlarged or changed, so that it could no longer be a Pi’otestant platform. He evidently understood that deists were not included in the meaning of the word Protestant in the constitution, any more than papists' were. But this amendment was defeated in the convention, and the constitution in -that regard remained unchanged.
The same writer adds, — “ A motion made by my father to abolish the religious test for office-holders, who were required by the constitution to be ‘ of the Protestant religion,’ though at first rejected, was finally adopted by the convention. It failed however with the people, receiving a majority of the votes in its favor, but not the two thirds necessary for its adoption. This test still forms a part of the constitution. The convention of 1850 twice proposed, almost unanimously, its repeal; but the people refused, by very large majorities, to make the proposed alteration.” Id. 117, 118-.
In the convention of 1850, Judge Woodbury made a speech in favor of removing the test in the constitution, in which he spoke of it as having been inserted in the constitution of 1783 in consequence of some fears or taunts that, after the French alliance, there was also to be an [121]*121alliance with the French religion — the Catholic. He only speaks of it, however, as the traditionary cause, and thinks the tradition may have come to him from Governor Piumer. 1 Woodbury’s Writings 486.
But this tradition had reference to the provisions of the proposed constitution of 1779, instead of that of 1783 as has been already stated in the quotation from Mr. Piumer. The French alliance was formed early in the spring of 1778; Franklin and the other commissioners from this country were presented to the king of France, March 20,1778; and the alliance was soon completed, so that in April of the same year the news of the-treaty between France and the United States had spread throughout Europe, and of course through this country. 9 Bancroft’s Hist. U. S. 489, 497. And in the summer of 1778, in July, a French fleet appeared on our coást to aid us in the contest with Britain. Wliiton’s Hist. N. H. 140; Belknap’s Hist. N. H. 376. At that time and immediately after, these fears of French Catholicism prevailed, as Mr. Piumer states; and this is evidently the only tradition of that kind that ever came to the ears of Judge Woodbury from Governor Piumer or anybody else, for long before 1783 everybody had learned, as the history of the times fully proves, that the fear to our religion was not from French Catholicism, but from French infidelity. “ The only real danger from the French alliance to the religion of the country was not from the primate of Rome, but from the philosopher of Ferney, whose disciples in the French army were much more numerous and more zealous than the priests.” Life of Wm. Piumer 50. We are also assured, upon the” best of authority, that whatever the fears may have been in 1778 and 1779, when the French alliance was first formed, its real effect was very powerful in diminishing the prejudices against Catholicism that had existed before. 3 Hildr'oth’s Hist, of U. S. 385. Hence we see that these fears may have induced- the convention that framed the proposed constitution of 1779 to insert the article requiring all legal voters to be Protestants, but before 1783 such fears were all dispelled, and instead of fears of Catholics, the- fear of French infidelity liad taken its place, which was the great thing to be guarded against; and especially if that provision in the constitution of 1783 had crept into it from any such cause as fear of Catholicism, it would have been omitted in the constitution of 1792, when that cause and all similar causes had ceased to operate: but this was not the case. In fact, it is by no means certain that had Governor Piumer, in the convention of 1791, proposed to substitute a Christian test for the Protestant, instead of abolishing all tests, he might have- obtained not only the assent of the convention, but the two-thirds vote from the people, which was necessary to adopt it. For there is no doubt that at that time, as well as in 1783, the people of this state had much greater fears of infidelity than of popery. The people would probably have been more unwilling to have consented to the proposed enlargement of the Protestant platform on the side of deism than on the side of Romanism.
A short extract, from an article that was printed in the W. II. Gazette of April 20,1786, in relation to Major-General Sullivan, will, perhaps, [122]*122as well as anything, indicate the true state of feeling in this state at that time. The article is signed “ A friend to justice.” General Sullivan had been accused, it seems, of being one of a party of three, who had, at a Mr. Brewster’s, at Portsmouth, treated with contempt and ridicule the Christian religion and the sacred Scriptures. In justification of General Sullivan, the writer says, — “ To suppose him to be one of those who joined in reviling the sacred writings, is most unjust and ungenerous. It is a fact, well known to all who have the pleasure of an acquaintance with thafcgentleman, that he has ever been a zealous and able advocate in favor of the divinity of the Scriptures, and particularly of the truth of the Christian system. It is well known to a number of worthy officers who served under him, that, while the army which he commanded in 1779 lay at "Wyoming, he wrote a most learned and ingenious treatise against the deists, whjch was highly applauded by all the chaplains in that army, among whom was the Rev. I)r. Evans, then chaplain to the New Hampshire troops. And even those who professed to be deists acknowledged that it contained the most powerful and conclusive arguments in favor of divine revelation and the system of Christianity they had ever seen. This piece, though many copies of it were given out, lie would not consent to have published, lest it should be said he was acting out of his sphere. I remember sometime the last fall to have heard a number of persons, among whom was Mr. James kfcGregore, son of the late Rev. Mr. McGregore, say that, in a dispute with some gentlemen who professed deism, he argued with such clearness of reason upon the Scriptures as at once silenced his adversaries, ■■ * * * and I heard the Hon. Judge Calfe since observe, that he (Sullivan) was the most powerful antagonist, and used the most convincing arguments against the deists, he ever heard. How malicious then and cruel must it be for persons to whisper that he was one of the impious club who so daringly blasphemed the sacred Scriptures and the Redeemer of mankind.” ■ The writer then states that the above facts in relation to General Sullivan are within his own knowledge, and that they are stated so as to open the door to inquiry, so that any person may satisfy himself of their truth.
It would seem that there would be no great difficulty in ascertaining the truth of the above statements, since the individuals mentioned were all well known in that portion of the state at that time. But it is evident that at that time, if any false slanders were to be whispered against any one, designed to his injury, it would be that he was a deist, and not that he was a Catholic, so much stronger was the prejudice against the former than the latter. It also tends to show that the religious discussions in the army, in 1779 and after, were not upon the subject of the papacy, but upon French infidelity. General Sullivan was vindicated against all such false charges, or whisperings, by being elected president of the state in 1786, and also in 1787, and again in 1789. Whiton’s Hist. N. H. 155, 160; Jenks’s N. H. Political Manual for 1868, 34, 35. General Sullivan was also chosen president of the New Hampshire convention which ratified the Federal constitution in 1788, and Hon. John Calfe [123]*123(the Judge Calfe mentioned in the above article) was chosen its secretary, and he was also secretary of the state constitutional convention of 1791. Whiton’s Hist. N. H. 158, 163, 164.
It is evident, we think, that the Protestant test was not introduced into the constitution of New Hampshire on account of any particular fear of the Catholics, for there was no occasion to fear them at that time, or probably at any time since then, in this state ; but, more particularly at that time, they were not numerous enough to cause any alarm. For two hundred years after New Hampshire was settled, — from 1623 to 1823, — there were no Catholics in the state, or next to none. For forty years after the constitution of 1783 was adopted, there was no church or society of Catholics in the state, so far as we have been able to learn ; for in 1822, “ for the first time, an attempt was made to introduce into New Hampshire the principles of the Roman Catholic church/ The Rev. Mr. Barber, who had passed some time at Rome, was ordained at the Catholic chapel, in Boston, as a Catholic missionary to this stateand between that time and 1833 he had succeeded in collecting “ a small society at Claremont,” and “ another * * * at Dover.” Whiton’s Hist, of N. H. 193.
The only man of whom we find any account, who ever had or pretended to have any suspicions of danger from the Romanists in those days, was Edward Gove, of Hampton, who, in 1682, excited a rebellion against the government of Edward Oranfield, and, among many other things equally absurd, he charged upon the governor a design to ‘‘ bring popery in amongst them.” But upon being arrested, he was indicted and tried for high treason before Richard Waldron and others as judges, was convicted and sentenced to death, but was finally sent to England and imprisoned in the tower of London. Belknap says, — “ Gove, in his petitions to the king, pleaded ‘ a distemper of mind ’ as the cause of his actions for which he was prosecuted. He also speaks in some of his private letters of a drinking match at his house, and that he had not slept for twelve days and nights about that time. When these things are considered, it is not hard to account for his conduct. From a letter which he wrote to the court while in prison [at Portsmouth, and before trial], one would suppose him to have been disordered in his mind.” Belknap’s Hist. N. H. 99,100, and note; Appendix to same, No. 33, p. 465 ; 8 N. H. Hist. Coll. 168, 171. Probably no man, who was not either insane, or drunk, or both, as Gove seems to have been, ever had any great fears of the Romanists in New Hampshire, until 1778, when some fears arose from the French alliance, which fears had their effect, as we have seen, upon the convention, which framed the proposed constitution of 1779. But these fears were soon dissipated, and the real cause of fear was soon discovered to be in the opposite direction, as Mr. Plumer says, — from French infidelity; and this was well understood when the constitution of 1783 was formed, and continued so until 1792, when our present constitution was adopted. Thus we-see that in 1779, when there were vague fears of Romanism, the Protestant tests were retained because Protestantism was known, on the one-[124]*124hand, to be anti-Catholic; and when there were real and well-grounded fears of French infidelity in 1783 and afterwards, the same Protestant test was still preserved unchanged, because Protestantism, upon the other hand, was equally well known and understood to be anti-infidel,— being first Christian, and then anti-Catholic. Prior to the formation of the constitution of 1783, there had been far more fear of a hierarchy of some other kind than there was of the Catholics, and at the time of its formation there was far more fear of French infidelity than of all the rest.
When the constitution of the United States was adopted, in 1788, no religious test was incorporated into it, and the first amendment that was adopted was, that congress shall make no law respecting an establishment of religion, oPprohibiting the free exercise thereof. 2 Curtis’s Hist, of Const. 629; 1 Story on Const., sec. 278; 2 Story on Const., secs. 1870, 1871. “Thus,” .says Judge Story, “ the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice and the state constitutions ; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the infidel, may sit down at the common table of the national councils without any inquisition into their faith or modes of worship.” 2 Kent’s Com. 35-37 ; Rawle on Const., ch. 10 ; 2 Story on Const., sec. 1879.
“ The real object of the amendment was,” says Judge Story, “ not to countenance, much less to advance, Mohammedanism or Judaism or infidelity by prostrating Christianity, but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution (the vice and pest of former ages), and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the apostles to the present age.” And again lie says, — “ Probably at the time of the adoption of the constitution, and of the amendment to it now under consideration, the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of .state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.” 2 Story on Const., isecs. 1874, 1877.
We think it will be evident to any one who will read Judge Story’s Commentaries on the Constitution, from sec. 1870 to sec. 1880, that he understood the term “ Christian,” as used in the state constitution, .and at the time of their adoption, to mean simply those who believed .in or assented to the truth of the religion of Jesus Christ, as taught in the New Testament; that he understood the terms “ Catholic and Protestant” as designating the two great subdivisions of Christianity, and that a man could no more be a Protestant unless he assented to the [125]*125truths of the Christian system, than he could be a Roman Catholic without such assent. Montesquieu says, — “When the Christian religion, two centuries ago, became unhappily divided into Catholic and Protestant, the people of the north embraced the Protestant, and those of the south still adhered to the Catholic.” Montesq. Spirit of Laws, Book 24, ch. 5.
The framers of the constitution have stated plainly and fully the reasons for placing that test in the constitution; they have not left these reasons to be ascertained by conjecture, or to be supplied by the imaginations of their descendants; and not only the framers of the constitution, but all the people of the state, in adopting the constitution, have adopted the reasons for this Protestant test, which are stated at length in the constitution. Judge Story says that at that time “ the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state.” And most of the states, among which was New Hampshire, considering Protestantism to be the best form of Christianity, — considering Protestantism to be, in the language of the constitution, “ evangelical ” Christianity, they chose that form of the Christian religion instead of Christianity generally, which would have included both the Protestant and Catholic forms. Such was evidently the nearly universal sentiment in New Hampshire when the constitution of 1783 was adopted. The printer of the EF. 11. Gazette only echoed the general public sentiment, when he refused to print Mr. Plumer’s first essay without pay because he thought “ the religion of the country required such a provision ” as the religious test; and the same was true in 1791, when Mr. Plumer proposed his amendment, which was designed, not to help the papists merely, by striking out the word Protestant and inserting the word Christian as they did in North Carolina, but by striking out the word Protestant and not substituting anything in its stead, so as thereby to admit deists and other anti-Christians, as well as papists. But the people were by no means ready to give up the idea that what they believed to be the true “ evangelical” religion, Protestant Christianity, should receive encouragement from the state.
There is no doubt that the language of the constitution is to be understood in the sense in which it was used at the time when it was adopted. Opinion of Justices 41 N. H. 551 ; Opinion of Justices 44 N. H. 635; Cooley’s Constitutional Limitations 66. And in interpreting clauses, whether of constitutions or of statutes, wo must presume that words have been employed in their natural and ordinary meaning. Cooley’s Const. Lim. 58 ; 1 Story.on Const., sec. 453. In written constitutions, “ the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated.” Cooley’s Const. Lim. 58, 79. “ The framers of tlie° constitution,” says Marshall, C. J., “ and the people who adopted it, must be understood to have employed words in their natural sense, and to hate understood what they meant.” Gibbens v. Ogden, 9 Wheat. 188.
[126]*126And Mr. Cooley, speaking of the provisions in the state constitutions on the subject of religious liberty, marks their wide differences, — “ some of them being confined to declarations and prohibitions designed to secure the most, perfect equality before the law of all shades of religious belief; while some exhibit a jealousy of ecclesiastical authority by making the persons who exercise the functions of a clergyman, priest, or teacher of any religious persuasion, society, or sect, ineligible to civil office; and still others show some traces of the old notion, that truth and a sense of duty are inconsistent with skepticism in religion.” Cooley’s Const. Lim. 468. He cites as instances where this “ old notion ” prevailed, the. constitutions of Pennsylvania, North Carolina, Mississippi, &c., and might have cited Massachusetts and New Hampshire. Blackstone notices this “ old notion,” when he says that “ all moral evidence, therefore, all confidence in human veracity, must be weakened by apostasy, and overthrown by total infidelity.” 4 Black. Com. 44.
It seems that this “ old notion ” was very prevalent in New Hampshire and Massachusetts, and the other New England states, namely,— “ that truth and a sense of duty were inconsistent with skepticism in religion,” and, therefore, they required that their civil officers, at least in New Hampshire, should be of the Protestant religion, not so much that it was anti-Roman Catholic, as because it was Christian, and that particular form of Christianity that they believed to be true, pure, and evangelical.
Another principle of construction should be here stated. In ascertaining the meaning of any provision of a constitution or law, the general object of it, and the danger which was apprehended, and against which the constitutional or legal provision is intended as a guard or barrier, are to be considered. Cooley’s Const. Lim. 65 ; Concord Railroad v. Greeley, 17 N. H. 68 ; Moore v. Taylor, 44 N. H. 374-5 ; Underhill v. Manchester, 44 N. H. 220-21, and cases; Barker v. Warren, 46 N. H. 124; Dartmouth College v. Woodward, 4 Wheaton 628-9.
It is evident that the evil to be guarded against in the minds of the framers of the constitution was not Romanism, else they would have said so plainly. There was no cause to fear that at that time. But what they then feared was immorality and impiety, and for the reason that these would destroy the security of government by destroying in the hearts of men, in the hearts of the subjects of that government, the obligations to due subjection. Here is the “ old notion ” plainly visible, as stated by Blackstone, that “ all confidence in human veracity must be weakened by apostasy, and overthrown by total infidelity ;” or, as stated by Cooley, namely, that “ truth and a sense of duty were inconsistent with skepticism in religion.” In other words, that a person who did not believe in the Christian religion — a skeptic, an infidel— could have no proper regard for truth, no proper views’ of the sacred obligations imposed by an oath, no proper sense of duty, or of obligation to the civil government, any more than he would be likely to have of his duty and obligations to God, in whom he did nob believe; and [127]*127hence, in tlieir view, the necessity of encouraging the Christian religion, and requiring that all their important and most responsible officers of state should be of the Christian religion, as in Massachusetts, or of the Protestant religion, as in New Hampshire, and for the reason, as stated in the New Hampshire constitution, that Protestantism was, in their view, evangelical Christianity.
The danger to be avoided or guarded against, then, is immorality and impiety; the objects to be secured are “morality and piety, rightly grounded on evangelical principles ” (Art. VI, Bill of Rights) ; that is, a morality and piety grounded upon the principles of the gospel of Christ. They believed that such morality and such piety would “ give the best and greatest security to government,” and would “ lay in the hearts of men the strongest obligations to due subjection;” “and as the knowledge of these [that is, morality and piety, rightly grounded on evangelical principles] is most likely to be propagated through a society by the institution of the public worship of the Deity, and of publie instruction in morality and religion,” therefore the legislature is empowered to authorize towns and religious societies to support public. Protestant teachers of piety, religion, and morality.
Here is, first, a plain statement of the objects desired to be gained; second, the reasons stated why those objects are desirable; and, third, the way and manner in which these objects are likely to be attained ; and then follows the provision that such means may be provided for, under this constitution, -as will be most likely to secure the desired object, to accomplish the end in view. For the reasons therein stated, they desired to secure a system of morality and piety for the people of this state; but that was not all. They wished for a system of morality and piety “ rightly grounded upon evangelical principles,” — upon the principles of the gospel of Jesus Christ, which must be Christian ; and to secure that result, as the means most likely to accomplish that object and best adapted to that end, the support of Protestant teachers of piety, religion, and morality was authorized, and the Protestant tests were introduced in regard to office-holders. The reason why the framers of our constitution, and the people who adopted it, preferred Protestantism as the favored religion of the state, was, that they believed it to be not only Christian, but that it was most-purely and intensely and exclusively Christian, the most evangelical of all the known subdivisions and forms of Christianity. They chose Protestantism, not so much because it was anti-Roman Catholic, as because they believed it to be true in itself, founded upon the gospel of Christ alone, evangelical, —a pure Christianity, stripped, as they supposed, of all the traditions of men and of every human device and invention, founded alone upon the Bible as the word of God ; and because they believed Protestantism to be that system of morality and piety founded upon evangelical principles, which gave the best and greatest security to government, and laid in the hearts of men the strongest obligations to due subjection. This was what they wanted, and all they wanted, and these were the reasons why they wanted it, and this was the way in which they proposed to [128]*128secure it, all fully and plainly stated in this article in the bill of rights. Not a word about Catholics or Romanism.
And here another principle of construction comes in with authoritative force, which would seem conclusive on this subject, viz., “When we once know the reason which alone determined the will of the law-makers, we ought to interpret and apply the words used in a manner suitable and consonant to that reason, and as will be best calculated to effectuate the intent. Great caution should always be observed in the application of this rule to particular given cases; that is, we ought always to be certain that we do know and have actually ascertained the true and only reason which induced the act. It is never allowable to indulge in vague and uncertain conjectures, or in supposed reasons and views of the framers of an act, where there are none known with any degree of certainty.” Cooley’s Const. Lim. 65 ; Smith on Stat. and Const. Construction 634.
In the case before us we know the reason why the framers of the constitution made provision for Protestant teachers of religion, and why they prescribed the Protestant test for office-holders, because they themselves have informed us fully on that subject. There is no room for doubt or for cavil. It was not solely because Protestantism was anti-Catholic. If that had been.the reason, it would have been fully and plainly stated. But it was that they might secure to the state and its inhabitants “ morality and piety, founded upon evangelical principles,” the principles of the gospel of Jesus Christ, the principles of true Christianity. This was what they sought, as they have fully and plainly stated, and also given us fully the reasons why they desired it, and the manner in which they expected and intended to secure it.
There is no occasion here for the great caution spoken of in the rule, for that is to be exercised only when the reasons are not known. And if it is never allowable to indulge in vague and uncertain conjecture, or hi supposed reasons and views of the framers of an act, when there are none hnown with any degree of certainty, what ought to be said of the impropriety of indulging in vague conjecture, and in supposing reasons to exist which are not only not the ones given by the framers of the act themselves, but which are directly in conflict with those that are given? What shall be said of the injustice of an utter perversion of all rules of construction, when we are called upon to ignore all the reasons which the framers of the constitution have given as the grounds of their action, and to substitute other supposed, and conjectural reasons, which the framers did not give or in any way allude to, and which are utterly inconsistent with those that are given ? This can never be allowed until we are prepared to convict the framers of the constitution, and the people who adopted it, either of not knowing the reasons upon which they did act, or of not having sufficient intelligence to state them fairly, or of having intentionally stated them falsely.
The remarks of Bronson, J., in The People v. Purdy, 2 Hill. 36, 37, are in point here. He says, — “ In this way a solemn instrument, — for so I think the constitution should be considered, — is made to mean one [129]*129thing by one man, and something else by another, until in the end it is in danger of being rendered a mere dead letter, and that, too, where the language is so plain and explicit that it is impossible to make it mean more than one thing, unless we first lose sight of the instrument itself, and allow ourselves to run at large in the boundless field of speculation. For one, I dare not venture upon such a course. Written constitutions of government will soon come to be regarded as of little value if their injunctions may be thus lightly overlooked, and the experiment of setting a boundary to power will prove a failure. We are not at liberty to presume that the framers of the constitution, or the people who adopted it, did not understand the force of language. * * '* We have here not only the unequivocal language of the constitution itself, but the declared will of the framers of that instrument in another form, * * * and this fundamental law has not yet been repealed, unless it has been brought about without the consent of the people who adopted it. I will not inquire whether the provision be a good one or a bad one: whatever may be my views on that subject, I am not at liberty to set up my opinion against the declared will of the people, as manifested in the supreme law of the land.”
To whatever source we look for authority, as to the meaning of the word “ Protestant” in our state constitution, we find but one response. All the authorities teach us that it means, first, Christian, and, second, anti-Oatliolic; that no man can be a Protestant, unless he first assents to the truth of Christianity; that Christianity has become divided into two great subdivisions in western Europe and America, — the Catholic and the Protestant; that a man can be neither a Catholic nor a Protestant, unless he is first a Christian ; that the term Roman Catholic means, first, a Christian, and, second, a papist; while the ternrProtestant means, first, a Christian, and second, an anti-papist; that no man, unless he assents to the truth of the Christian religion, as taught in the New Testament, can properly be called either a Catholic or a Protestant ; and that the term Protestant, as used in our constitution, does not include the believer in Judaism, the Mohammedan, the pagan, the atheist, deist, tlieist, free religionist, or any other class of infidels, who deny the truth of the Christian system as taught in the New Testament, 1 Hallam’s Const. Hist. of England, ch. 2 (Reformation) ; 2 May’s Const. Hist. England, ch. 12 (Religious Liberty); 7 Lingard’s Hist. England 384; 1 Motley’s Rise of Dutch Republic 484; 2 id. 490 ; 1 Eroude’s Hist. England 130, 174; 2 id. 32, 34, 36, 71; 6 id., ch. 33; 7 id. 23, 24, 73, 74 ; 10 id. 4; 2 Macaulay’s Hist. England 168, 172, 180; 3 id. 39, 113, 153, 154, 166, 488, 489 ; 4 id. 305, 306, 307; 3 Hume’s Hist. England 132, 233, 370; 4 id. 10,11, 29, 147, 148, 157; Smiles’s History of the Huguenots 71, 78, 110, 113 ; Mackintosh’s History of England 319, 334 ; D’Aubigne’s History of Protestant Church in Hungary, passim; Marsh’s History of Protestant Reformation in Prance,passim; 1 Ran croft’s History of U. S. 276, 277, 281; 2 id. 456 ; 4 id. 277, 279, 280 ; 5 id. 1; 9 id. 272, 274, 276, 278: 2 Story on Const. U. S., secs. 1871, 1872, 1873, 1876, 1877, 1878; 2 Tytler’s Universal History, ch. 20.
[130]*130I have thus, perhaps, at too great length, adduced authorities and arguments to sustain the views of the majority of the court as to the meaning of the words Protestant and Christian, as used in our state constitution ; not so much that the decision of this cause depends upon this particular view, for the decision of the cause must be the same, as will readily be seen upon the facts found in this case, whatever, meaning we may attach to these words in the constitution; — but it is rather to meet some of the arguments of the dissenting opinion in this case, the result in which, as will be seen, can only be reached and the conclusions in which can only be sustained, by holding that the term Protestant in the constitution means simply anti-Catholic, and hence that it will include deists, tlieists, and infidels, ^nd Turks and pagans as well; and that the term Christian, as used in the constitution, has no particular reference to Christianity as a system of religion, but was intended to embrace all men who were moral and upright in their lives, as well Mohammedans, pagans, and infidels, as those who assented to the truth of the doctrines of Christianity. The majority of the court are clearly of opinion that these views, however ingeniously or forcibly stated, are, in the main, erroneous and radically wrong, and have stated a few of the reasons and grounds upon which our conclusions ai’e based.
We rejoice that our constitution has not made the rights of conscience to depend ixpon differences of religious opinion, but has established those rights upon a firm, a broad, a just, and an'enduring basis ; and although the Protestant test was introduced as a qualification for some civil officers, yet no case has yet arisen, and there is probably little fear that a case ever will arise, where this religious test has been or will be applied, to exclude any person from an office to which he is duly elected, and for which he is in other respects qualified. These tests have always been, in fact, a dead letter, and the only regret is that they have not been long ago removed by amendment, so as to free our constitution from this just objection ; so that it should require only the qualifications of talent and integrity, of honesty and ability, for any civil office, and leave it for churches and other religious organizations to decide upon questions of religious faith and the doctrines of theology.
In the dissenting opinion, the old question in relation to original sin and to the future punishment of infants is sought to be again revived, after a comparative rest of forty years or more. These questions seem to us to have very little to do with the questions at issue in this case. It is said in the opinion that “ the Calvinistic doctrine of predestination, whatever it originally was in general principle, and however it was applied to infants or adults, has been rejected or transformed in Oalvinistic churches since the time of Calvin.” To a certain extent-we may assent to that proposition. It has been denied that Calvin or St. Augustine, whom Calvin seems to have followed in his form of statement of the doctrines of “ original sin ” and of “ predestination,” either of them, absolutely taught the doctrine of “ infant damnation,” yet that they carried the doctrine of “ original sin,” at least in its statement, much further than the Calvinists of the present day, or any for the last [131]*131hundred years have done, is not questioned. See Dr. Lyman Beecher’s letters, published, in 1828, Spirit of the Pilgrims, vol. 1, pp. 42, 78,149. In the first letter, he claims that the “future punishment of infants is not a doctrine of Calvinismin the second, that this doctrine was “ never a doctrine of the Calvinistic churches and, in the third, that “ this doctrine is neither believed nor taught by the Calvinists, as a body, at the present day.” In the first and second letters, he takes up the passages substantially as quoted in the dissenting opinion in this case, from St. Augustine, from Calvin, from Edwards and Bellamy, and from Dr. Twiss, “the prolocutor of the Westminster assembly,” and Dr. Gill and others. He also examines the different confessions of Protestant churches, synods, assemblies, &c., from the confession of Augsburg down to that of the synod of Cambridge (1648), and of Seybrook still later, and including the English confession of the thirty-nine articles, and asserts that the doctrine of the future punishment of infants “ has never been avowed in a Calvinistic confession of faith, or implied in anything taught in one, from the reformation to this day.”
But he admits that the “ mode of stating the doctrine of original sin, adopted by the reformers,” had been such as to give some seeming countenance to the charge that Calvinists believed in the doctrine of infant damnation ; but he calls attention to the fact that these modes of stating the doctrine of original sin “ have been exchanged in New England, for many years, for views and language which utterly preclude even the appearance * * * of ground for such an inference.” He adds, — “ The mode of stating and explaining the doctrine of original sin, and other kindred doctrines, which I have adopted, and which some affect to consider as new, * * * is a mode of explaining and vindicating the doctrines of the reformation, which was adopted in New England more than seventy years ago. Some of the most approved writers on this subject are Hopkins, the younger Edwards, West, Smalley, Spring, Wrong, Dwight; and in England, Andrew Puller, one of the greatest a ’ ->st of men.” He concludes by the assertion that “ the charge so lo..^ mlated against Calvinists, that they believe in the damnation of infants, is utterly false ; and, knowing it to be so, I publicly deny it. * * * The Calvinists of New England, and of the United States, do not hold that infants are damned.”
“ Prom Luther to Calvin there was progress ; from Geneva to New England there was more.” 2 Bancroft’s Hist. U. S. 464. Belknap says, “ In the doctrinal points of religion, they (the puritans) were of the same mind with their brethren of the church of England, as expressed in their articles.” But their peculiar system of polity, the Congregational system of church government, was the result of the studies of the renowned John Robinson, who was the pastor of the puritans in Holland, “who seems to have had more of the genuine spirit of the reformation and of freedom from bigotry than any others in his day. His farewell charge to those of his flock, who were embarking in Holland for America, deserves to be had in perpetual remembrance.” He then gives the substance of this farewell charge, in which Robinson [132]*132adverted to the advance in truth -which had been made by Luther, and the still greater advance made by Calvin, and lamented the- disposition in their followers to stop with their favorite teachers, and go no further in search of truth than they went, and adds, — “ For though they [Luther and Calvin] were burning and shining lights in their times, yet they penetrated not into the whole council of G-od; but, were they now living, would be as willing to embrace farther light as that which they at first received. I beseech you to remember it as an article of your church covenant, that you he ready to receive whatever truth shall be made lenown to you from the written word of God. Remember that, and every other article in your sacred covenant. But I must herewith exhort you to take heed what you receive as truth. Examine, consider, and compare it with other scriptures of truth before you receive it; for it is not possible the Christian world should come so lately out of such thick anti-Christian darkness, and that perfection of knowledge should break forth at once.” Belknap’s Hist. N. H. 38, 39.
The, reformation has in fact gone far beyond Luther and Calvin, as the articles of faith, and more particularly the doctrinal preaching of the Lutheran and Oalvinistic churches of the present day, will show. But, while they have changed and modified the old formulas of doctrine and introduced new ones, they still uniformly adhere to the doctrine of John Robinson, — that all religious truth is to be made known and received “ from the written word of God.” That is the source of all religious light and truth. If new developments of truth are to be looked for, they are to be expected to be made known from that source alone. By this standard all new truth is to be tried ; it is to be examined, considered, and compared with other scriptures of truth, and must be proved to be founded upon, and emanate from, the written word of God, before it is received. Upon this, point all denominations of Christians, now termed evangelical, are agreed. This in fact was the doctrine of the reformation, — the great doctrine which was the foundation and chief corner-stone of the reformation, — that the Bible alone- was, and was to be, the only souree of all true religious light, and of all revealed religious truth; and that every doctrine in theology, as well as every course of life, is to be tried by this test and judged by this standard ; in fact, Lutherism and Calvinism are only excellent so far as they embody the real teachings and doctrines of the Bible.
That was the faith of the puritans ; that is generally the faith of their descendants. A few only have apostatized, and believe with Mr. Abbott and some of his associates and followers, in a religion “ that acknowledges no leader, is loyal to no master, imitates no exemplar, looks to no redeemer, needs no saviour, knows no Christ.”
A decree may be entered, in substance, that the prayer of the bill be granted with costs ; that said York, Folsom, and Horsch, wardens of said First Unitarian Society of Christians in Dover, and all other wardens of said society, be strictly enjoined and forbidden to hire, employ, allow, suffer, or permit, said Francis E. Abbott, or any other person, to [133]*133preach and inculcate, in the meeting-house of said society, doctrines subversive of the fundamental principles of Christianity, as generally received and liolden by the denomination of Christians known as Unitarians ; or to employ, suffer, or permit to'preach in said meeting-house, said Abbott, or any other person who rejects, and teaches a rejection, of Christianity and its fundamental doctrines, or who preaches and inculcates a disbelief in the doctrine of the Lordship and Messialiship of Jesus Christ, as taught by him in the New Testament Scriptures, or a disbelief in Jesus Christ as the great head of the church, or of his divine mission and authority as a religious teacher, as thus taught by himself; or who preaches or inculcates a denial of the doctrine that the Scriptures of the Old and New Testaments contain a divine revelation, given by inspiration of God, and- containing a sufficient and perfect rule of faith and practice; and that said Abbott and his associates and fellow-disbelievers in Christianity be strictly enjoined and forbidden to occupy said meeting-house of said society, for the purpose of preaching or inculcating said disbeliefs, denials, and doctrines, herein before prohibited to be taught therein, and any and all other doctrine or doctrines subversive of the fundamental principles of Christianity, as generally received and liolden by the denomination of Christians known as Unitarians.
Smith, J., did not sit.
Related
Cite This Page — Counsel Stack
53 N.H. 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hale-v-everett-nh-1868.