Kniskern v. Lutheran Churches of St. John's & St. Peter's

1 Sand. Ch. 439, 1844 N.Y. LEXIS 442, 1844 N.Y. Misc. LEXIS 88

• Court: New York Court of Chancery
• Decided: July 17, 1844
• Status: Published

Opinion

The Assistant Vice-Chancellor.

Before entering upon the points of difference between the parties in this unhappy controversy, I will state briefly the history of the churches in question, and advert to the principles on which courts of equity exercise their jurisdiction in such cases.

First. These churches, together with that in Cobleskill, were in existence as one church as early as the year 1787, and were probably organized many years before. They doubtless had their origin in the emigration, in the early part of the eighteenth century, from the Palatinate in Germany. Dr. Schmucker, in his Retrospect of Lutheranism in the United States, (page 11, &c.) says, that one hundred and fifty families of those driven from the Palatinate by Romish intolerance, settled in Schoharie, in the year 1713. As might be expected from their origin, these churches were of the religious denomination known as “ Lutherans.” In 1789, the society was designated by the name of “ The Lutheran Congregation of Cobleskill «wd New-Durlachand it is conceded that the church was then organized as an “ Evangelical Lutheran Church.”

On the 9th of March, 1789, one hundred and fifty acres of land at New-Durlach were conveyed in fee by the Rev. Mr. Sommer and others to three persons as trustees of the church by its name before mentioned, and as expressed in the deed, “ for the common use and benefit of the said Lutheran Congregation forever.”

A church edifice was built at New-Rhinebeck, about the year 1798, and one at New-Durlach the next year, by private subscriptions and donations of the members of the congregation who worshipped at those places, and by other means. It appears that the latter was dedicated about the year 1800. In 1799, the branch of the congregation worshipping at New-Rhinebeck, became incorporated under the statute of 1784, by the name of “ The Ministers and Trustees of the Lutheran Church in Rhine; beck.” And in 1808, the branch of the congregation which worshipped at New-Durlach, became incorporated under the statute of 1801, by the name of “ The Trustees of the Evan; “ gelical Lutheran Church of St. John’s, at Durlach, in Sharon.” The remaining part of the original Lutheran church of Cobleskill and New-Durlach, was incorporated as a separate church at Cobleskill, and does not enter into this litigation,

The land which was bestowed upon the parent congregation, in 1789, was divided in the year 1808, the Cobleskill church taking fifty acres in severalty, and the two churches at New; Durlach and Rhinebeck retaining the residue in commpn.

From that time to the present, the two latter churches, although distinct corporations and societies, have held these lands, with some other property acquired by similar donations, as a common fund for the support of the gospel in their congregations ; and have united in the employment and payment of a minister or pastor, who officiated alternately in each church. And the church edifices erected in their respective bounds, have continued to be used for the worship of God by those congregations exclusively, from the time they were built until the present' day, except for a short period nearly forty years since, during which the Presbyterians owned the half part of one of the church buildings, and occupied it for half the time. The controversy in this suit relates to the temporalities belonging to the two churches of Rhinebeck and New-Durlach.

These churches were first attached to the New-York Ministerium, an association or synod of Lutheran churches in this state and its vicinity, formed in 1796. It does not appear when the two churches first became connected with that body, but it was prior to 1820. Mr. Moeller was their pastor from about the year 1806, till 1821 or 1822. 1 Mr. Crownse succeeded him in 1823; and the defendant, Wieting, succeeded the latter in 1828. Mr. Wieting’s engagement was renewed for ten years in 1833. Both Mr. Crownse and. Mr. Wieting were licensed and ordained to preach by the New-York Ministerium, and all the pastors of the two united churches were ordained and installed as Evangelical Lutheran clergymen. A General Synod of Lutheran Churches in the United States was organized in 1820, and the New-York Ministerium afterwards united with the General Synod, but I do not learn from the testimony that it was while these churches were a part of that synod. And most of the Lutheran synods in the United States, were subsequently attached to and made a part of the General Synod.

In 1830, the Hartwick Synod was formed out of the New-York Ministerium, and these churches became a part of that synod, by the general assent of the two congregations, and without any objection, so far as it appears. In 1831, the Hart-wick Synod united itself with the General Synod of Lutherans in the United States ; (these churches then forming a part of that synod,) and adopted the Formula and Discipline established by the General Synod. Mr. Wieting, as pastor of these churches, participated in the organization of the Hartwick Synod, and its anion with the General Synod, and continued in connection with them until 1837.

In 1837, Mr. Wieting, acting with a majority of the congregations in both churches, and also with a majority of the vestry and trustees of each church, severed their connection with the Hartwick Synod and the General Synod of the United States; and uniting with several other congregations dispersed through the central part of the state, formed a new synod, which in honor of one of the most distinguished Lutheran divines of the last century, they denominated The Franckean Evangelic Lutheran Synod, and they adopted and published a constitution in which they set forth, amongst other things, their declaration of faith, and their system of church government and ordinances. In 1838, this new synod adopted an amended constitution, containing their system and declaration of faith, in somewhat different terms from that published in 1837.

The two churches in question, under the control and direction of the defendants, continue their connection with the Franckean Synod. The complainants, who are members of these churches, and one of them a trustee, adhere to the Hart-wick Synod.

Second. I will next speak of the principles which govern courts of equity in cases of this kind.

They proceed on the ground of a trust; and their aim is to ascertain its scope and objects and to enforce its proper and faithful administration. The jurisdiction is environed with greater difficulties than that over the ordinary private trusts which come under our review, by reason of the uncertainty which frequently prevails, as to the precise objects and intentions of the donor. The inquiry often arises after a great lapse of time, when no living witness can inform the conscience of the court, and when its search for truth must be made in history, and in the controversial writings of contemporaries of the donors. The course of the administration of the trust, and its alleged perversion, are also frequently shrouded in mystery and involved in the subtleties of polemics and theology. Still the court is bound to exercise its control over these charitable funds, as well as over the less difficult class of private trusts.

The law on this subject was so fully and ably investigated by my learned predecessor in the recent case of the German Reformed Church in Forsyth-street in the city of New-York, (Gable and others v. Miller and others, October 6th, 1842,) that it is needless for me to review the authorities. On the appeal in that case, the Chancellor fully sustained the jurisdiction, and in addition to the other authorities, cited the Clough Church case, (or Dill v. Watson,) in the Irish Exchequer in 1836. I have seen no report of the Clough case; but as stated, it accords with the other decisions on this important point.

In the leading English authority, The Attorney General v. Pearson, (3 Merivale, 352, 395,) Lord Eldon decided that when it appears to have been the intention of the founder of a trust for religious worship, that a particular doctrine should be preached, it is not in the power of the trustees, or of the congregation, to alter the designed objects of the institution. The length and breadth of that decision may be the better estimated, from the circumstance that the purpose declared in the deed, was simply “the worship and service of God.” And those words, without more, are deemed in England to create a trust for the established religion. Yet on its being clearly shown by proof, that the purpose of the trust was to maintain dissenting doctrines, the court decreed that purpose to be carried into execution. And as there were no Unitarians known among the dissenters when the trust was created, (A. D. 1701,) the Unitarians were excluded from the trust. (7 Simon’s R. 290, S. C. upon the first decree.)

In the case of the German Reformed Church in Forsythstreet, before mentioned, decided by the Chancellor, May 7th, 1844,

(a) the complainants alleged a perversion of the temporalities of the church by the defendants, principally in two particulars ; viz., a severance of the church from its spiritual union with the Dutch Reformed Churches, which union existed when the trust funds were bestowed; and the teaching of Arminian or Lutheran doctrines, instead of the Calvinistic doctrines of the German Reformed Church. On both grounds, the Chancellor sustained the bill, and decreed a restoration of the church property to the parties maintaining the original faith, doctrines and government of its founders.

The principles of these and the kindred authorities have been sustained in various other cases in this country, such as Field v. Field, (9 Wend. 401;) St. Mary’s Church case, (7 S. & Rawle, 539;) The Presbyterian Church v. Johnston, (1 Watts & S. 1;) Denn. ex dem. De Mott v. Bolton, (7 Halsted’s R., N. J. 205;) Bowden v. M'Leod, (1 Edw. Ch. R. 591.)

In the case of .Lady Hewley’s Charity, which has been reported at large since the opinion of my predecessor was pronounced in the German Reformed Church suit, (Attorney General v. Shore, 7 Simon’s R. 309, note, and 11 id. 592; and in the House of Lords, reported by the name of Shore v. Wilson, in 9 Clark & Fin. 355; 5 Scott’s New R. 958; 11 Simons, 615, note; and 7 London Jurist R. 781;) these questions have again been most elaborately examined, and the principles of the Attorney General v. Pearson, fully confirmed and established.

The case itself is highly instructive in reference to another branch of this investigation. Here it will suffice to say, that the relators claimed, (and so it was adjudged,) that the charity was created for the benefit of Protestant dissenters who believed in the doctrine of the Trinity ; that a majority of the trustees for several year's before the information1 was filed, professed Unitarian opinions, although they called themselves Presbyterians ; and that they had applied a considerable portion of the rents in the education and support of-Unitarian preachers, and for the benefit of other persons of that denomination. By the decree of the vice-chancellor,' (Sir Lancelot Shadwell,) persons professing Unitarian opinions were excluded from participating in the benefit or administration of the charity.

The appeal from his decree was argued before Lord Brougham while chancellor, assisted by two common law judges, but he resigned the great seal before giving judgment. It was then argued before Lord Lyndhurst, chancellor, assisted by Mr. Baron Alderson and Mr. Justice Patteson. On their opinion, concurring with his own, Lord Lyndhurst affirmed the decree. The case was then appealed to the House of Lords, and the decree there affirmed. Lord Cottenham, (before whom, while chancellor, the case had been argued on an incidental question arising under the decree,) moved its affirmance, and Lord Brougham concurred in his observations. Seven of the common law judges delivered their opinions to the House in favor of affirmance, before that body proceeded to decide the appeal.

The case therefore comes to us with all the weight of authority derived from the united judgment of the learned and venerable vice-chancellor of England, the present and the two late chancellors, and nine of the common law judges, and from the sanction of the highest judicial tribunal in that country.

In the judgment of Lord Lyndhurst, (9 Cl. & Fin. 390; 7 Simons, 310, note;) he says, “ In every case of charity, whether the objects of the charity be directed to religious purposes, or to purposes purely civil, it is the duty of the court to give effect to the intent of the founder, provided this can be done without infringing any known rule of law. It is a principle that is uniformly acted upon in courts of equity.” He then refers to the mode of ascertaining the intent, to which I will advert hereafter, and proceeds; “ It can scarcely be necessary to cite authorities in support of these principles. They are founded in common sense and common justice. He however refers to the Attorney General v. Pearson, and a similar case in the House of Lords, Craigdallie v. Aikman, (1 Dow’s P. C. 1.)

In the House of Lords, Baron Gurney said, (9 Cl. & Fin. 553; 11 Simons, 626, note;) u I think the investing of the trustees with the power of applying this trust for the promotion of Unitarian worship, would be the greatest possible perversion of the trust. I have always considered the intention of the founder to be the principle to be established, the rule to be abided byquoting Lord Eldon’s language in The Attorney General v. Pearson.(a)

The Unitarian cases in Massachusetts do not necessarily conflict with these authorities. They were put upon the ground that a majority of the congregation, and not of the members or communicants in a particular church, should govern, where the property was given to the church, or for the use of the church, without designating any particular tenet, doctrine, or sect. Baker v. Fales, (16 Mass. 488;) Stebbins v. Jennings, (10 Pick. 172;) Page v. Crosby, (24 Pick. 211.)

The only adjudged case which I have met with that expresses a contrary doctrine on the subject of these trusts, is that of the Trustees of the Organ Meeting House v. Seaford, (1 Dev. Eq. Rep. 453, North Carolina.) And it so happens, that that was a Lutheran church. There the property was conveyed to the corporation, and as the report says, the deed specified no particular purpose to which it was to be appropriated. The minority claiming to be trustees, filed a bill in the name of the corporation, charging the defendants, also claiming to be trustees, with a violation of their trust, in this that they had attached the church to a synod, and excluded ministers from it who were regularly ordained. It appeared that the defendants were duly elected, and were, in fact, the true representatives of the corporation; which of itself was sufficient ground to dismiss the bill filed in the name of the corporation, although it was not urged. Judge Hall, in delivering his opinion, lays great stress upon the fact, that it did not appear that the grantor of the land was a Lutheran, and that there was no condition or purpose expressed. And the decision is put upon that ground. He also says, what no one can deny, that in a corporation, the will of the majority must govern, in the use and disposition of property held by it absolutely. And he declares his opinion to be, that it is not for the court to decide whether the parties or the church have strayed from the tfue faith, or introduced errors into the church government; and that it might be more than difficult to qualify any earthly tribunal to decide it.

So far as the point adjudged in the Organ Meeting House v. Seaford is concerned, it does not bear upon the principle under discussion. The opinion there expressed cannot weigh much against the well considered decisions to the contrary, especially as it will he seen that the judge was speaking of a tribunal to decide which faith was the true one in reference to the bible, and not in reference to the faith to sustain which the fund was bestowed.(a)

One of the learned counsel for the defendants, set out with the proposition, that it was a material inquiry, whether or not the Augsburgh Confession of Faith was repugnant to the Scriptures ; and that even if the property in controversy had been granted for the purpose of sustaining that faith, the court would not permit the erroneous doctrines thereby declared, to be promulgated.

The authorities which I have cited, show abundantly that this proposition is unsound. In the case of Lady Hewley’s Charity, it was excluded ; and in the language of one of those learned judges, I utterly disclaim founding a judgment upon any such basis.

Were the administration of the great variety of religious charities with which our country so happily abounds, to depend upon the opinion of the judges, who from time to time succeed each other in the administration of justice, upon the question whether the doctrines intended to be upheld and inculcated by such charities, were consonant to the doctrines of the bible ; we should be entirely at sea, without helm or compass, in this land of unlimited religious toleration. I do not believe, that of the fifteen judges who now sit in our highest tribunals of law and equity in this state, a majority will be found to agree in all the doctrinal points maintained and deemed essential by any one of the denominations of Christians to which those judges belong. And while in England, where an established church and a rigid system of educational and political exclusion insures entire uniformity in this respect, the courts wholly refuse to decide upon such a principle ; it would be alike startling and absurd to establish it here.

We are only to know that the objects of the charity are not contrary to law.

Again, it is argued, that this very diversity of opinion amongst our judges, is a cogent reason for the courts to decline investigating these questons; that it will oftentimes happen, that the judge will be called upon to determine religious controversies, affecting the denomination to which he belongs.

It suffices to say, that no judge will probably be willing to sit in the decision of a suit in which he is interested, and the possibility of its occurrence is not a sound reason for refusing to exercise a well settled and important jurisdiction.

Another of the learned counsel, at the hearing, submitted that the principle could never be maintained in this country, by which certain religious creeds, stereotyped fifty or sixty years ago, were to control the disposition of charities for all time to come. That where property was acquired by an incorporated church, for the use of that church, without restrictive words or a limitation to a particular faith or doctrine; it might be appropriated to the use of the church, by a majority of its members for the time being, in any form that they pleased, and that they might change their tenets, and Carry the property with them. And he argued that the maintenance of a contrary doctrine in Europe, had led to an universal .governmental proscription there, in order to sweep away the property and estates held for ob-' noxious trusts, whenever there was a change in the religion of the state.

It would be unjust to attribute to a principle of law, thé acts of rapacity and persecution referred to by the counsel; acts of despotic power, or of governments trampling upon their own laws, as well as all notions of morality, justice and natural right. Nor should we argue that such consequences can ever ensue in a country like ours, where the rights of property are so steadily maintained, and where the government by its fundamental law, is inhibited from adopting or maintaining any one creed or form of religion. The argument itself that a majority for the timeffieing, can mould to their own notions, the principles sustained by the gifts of the founders of the charity, and can substitute other principles or cardinal doctrines in their stead; cannot be tolerated for a moment.

It strikes at the root of all religious, charitable, and even literary gifts and bequests ; which are to endure beyond the lives of those first intrusted with their administration. It closes the avenues of benevolence, and chills the warm heart of charity; of that good will towards men which seeks to perpetuate by the means bountifully conferred on the donor, the good works which the approach of his appointed time on earth, prevents him from acomplishing or perfecting in person.

Let it once be understood to be the law of the land, that funds bestowed for the maintenance of a Protestant Church, may with the change of faith of the members, at any time, be applied to the support of the Roman Catholic forms of worship and religious, doctrines; or that a devise for the support of disabled seamen, may in the wisdom of trustees for the time being, be used to educate young mariners for the better discharge of their duties; and we shall hear no more of the munificent eleemosynary donations, which so much distinguish and adorn-our country. No Randall will endow another noble charity for the worn out sons of the ocean. No Warren or Rogers will bestow her property,, to build churches for the ministration of the gospel to the poor and needy of our populous cities.

A more just and righteous principle animates our law. ££ When a gift of property is made for the service and worship of Almighty God, the thing to be regarded is, what were the religious tenets in general of the donors. Because it would not be a just application of those trust funds, if they were employed for the sustentation of religious opinions which the donors themselves would have disavowed,” (Per Vice-Chancellor Shad-well in Attorney General v. Pearson, 7 Simons, 306.) And where the gift, as in the instance before me, was for the use and support of a particular description of Christians, the thing to be regarded, is what were the tenets of that denomination '!■

If a different rule is to be established in reference to these trusts, it must be by the intervention of the sovereign power. The effort is making in England in the bill entitled “ An act for the regulation of suits relating to meeting houses, and other property held for religious purposes, by persons dissenting from the united church of England and Ireland,” now pending in Parliament. This effort was occasioned by the final overthrow of the Unitarians, in the decision of the House of Lords, in the case of Lady Hewley’s Charity. ■ But even that bill, which meets with most determined opposition, and the fate of which is doubtful,(a) does not apply to cases where any particular religious doctrines, opinions, or mode of worship, are required to be taught in express terms by the deed or gift. It however makes the usage of the congregation for 25 years, to be com elusive evidence of the religious doctrines, opinions and mode of worship for which the trust was founded, in cases where the same are not so expressed.

The defendants also make it a point that the question whether or not they are orthodox, can only be determined by the proper ecclesiastical tribunal, and cannot be decided by this court.

In reference to their orthodoxy, when' tried by the standards of the Evangelical Lutheran Church, the defendants, in their answer, effectually preclude such a judicatory. They set up the absolute independence of each separate church or congregation-; and they have detached these churches from the Hartwick Synod, the only superior organization to which they in common with the complainants were united, and they deny its jurisdiction and control.

It would be an immense relief to me in this case, if I could repose upon the decision of a synod or classis, as was done in a great measure in the New-Jersey case of Denn, ex dem. De Mott v. Bolton.

The Chancellor however, in the Baptist Church in Hartford v. Witherell, (3 Paige’s R. 304,) said that when this court is obliged to administer a trust, the chancellor cannot put his conscience into the keeping of any ecclesiastical tribunal. The facts constituting the alleged breach of trust must be stated in the bill, and if put in issue must be proved to the satisfaction of the court, as in other cases of trust.

The jurisdiction of this court being as I have shown clear, undoubted and imperative; in the language of Lord Cottenham, chancellor, in a similar case, Milligan v. Mitchell, (3 Mylne & Craig, 72,) the “questions which I have to consider, are first, whether the property in question was held upon the trust alleged in the bill; secondly, whether there has been a breach of such trust; and thirdly, if there has, whether the complainants are entitled to be relieved against such breach of trust, in this suit.”

Thirdly. I now come to the points in issue between the parties.

The complainants allege that the memorable confession or declaration, presented to the Diet of Augsburgh on the 25th day of June, 1530, by the Protestant princes and cities of Germany, and. which has ever since been known as the Augsburgh Confession of Faith, has from that time been observed, regarded and adopted by the Lutheran Church, as containing the fundamental principles of the faith of that church, and that it is the Confession of Faith of the Lutheran Church and of all its members and adherents. That in the churches in question, prior to 1789, and from thence till 1837, the doctrines of the 0 gospel were preached, and the sacraments administered, according to that Confession, and that the same was adopted, accepted and received, by the churches and congregations, as their Confession of Faith. That the churches were founded and the temporalities bestowed by Lutherans, for the sole purpose of having the faith and doctrines expressed in that Confession taught and inculcated, and the sacraments administered conformably thereto.

The defendants admit that the Augsburgh Confession was adopted by the Lutherans after the diet of Augsburgh, as a system or summary of their doctrines and faith, together with Melanchthon’s Apology, the Articles of Smalkalden, the Larger and Shorter Catechisms of Luther, and the Formula Concordias ; and that these are together, called the Symbolical books of the Lutheran Church. They deny that all departures from the Augsburgh Confession were ever deemed heretical or a departure from the true faith or system of doctrines of that church either in Europe or America. They allege that many of the Lutheran churches in America, have never formally adopted it, or received it as containing their fundamental principles of faith, nor required any assent to it in all its parts and doctrines. They admit that the society or congregation from which these churches sprung, was a Lutheran church ; but they are ignorant whether the doctrines or tenets there taught, were according to the Augsburgh Confession; and in substance, they traverse all the allegations of the bill, in relation to that Confession’s being adopted, assented to, taught or inculcated, in all its parts and doctrines in the churches in question, at any time, or by any of the founders thereof, or of the donors of the trust funds.

The first great issue in the case is thus presented ; was the property of these corporations held upon the trusts alleged by the complainants ?-

In the case of Lady Hewley’s charity, it appeared by the deed of foundation, executed in 1704, that the object was, “ to assist poor and godly preachers of Christ’s Holy Gospel.” Lord Lyndhurst said, the first and principal question was, what class of persons and what principles and doctrines did the foundress have in view, when she used those words ? In order to decide this, he first considered the testimony, and the historical facts bearing upon the point, and ascertained that Lady Hewley was a Presbyterian; and that the great body of the Presbyterians as well as Independents, in 1704, believed in the doctrine of the Trinity, and in the doctrine of original sin. He held that it was incumbent on those who contended that she was an exception to the general belief, to establish that fact by evidence. No such fact was proved. He said farther, that all the probabilities were against her being an exception. That the principles of Unitarianism were at first received coldly, with aversion, and even with disgust, particularly among the laity. Lady Hewley was in 1704, far advanced in life, and was not likely to have adopted those opinions. And upon these data, that she was a Presbyterian, and the general doctrines of the Presbyterians at that time, Lord Lyndhurst held it established that she was a Trinitarian, and a believer in the doctrine of original sin. (9 Clark & Fin. 390-1, 393, 395; 7 Simons, 310)

The chancellor then argued forcibly, that Lady Hewley did not intend to found a charity, and bestow her property for the purpose of preaching doctrines directly at variance with her own, on points that have always been considered by every church as essential, and which she herself must have considered as essential matters of religious belief.

In the case of the Attorney General v. Drummond, cited by my learned predecessor in the German Reformed Church case, from 1 Connor and Lawson, 210, and which is more fully reported in 1 Drury and Warren’s Rep. 353, where Lord Chancellor Sugden decided against the Unitarians on certain trusts for Protestant Dissenters; he adopted with much forcible reasoning, the same line of evidence that was held admissible in Lady Hewley’s Charity.

These authorities will aid and direct the investigation here.

In the case before me, we set out with one advantage, which the courts did not possess in the one from which I have drawn so largely. We know that the churches were founded and established as Evangelical Lutheran Churches.

It is thus ascertained that the property in controversy was bestowed for the support of the doctrines and tenets of the Evangelical Lutheran Church.

Having gained this point in the investigation, the more difficult question succeeds; what were the essential or cardinal doctrines and tenets of the Evangelical Lutheran Church, when this property was bestowed upon those trusts, and by what standard or symbol were they declared?

Here I must observe that the defendants, in the portion of their answer which I last stated, have departed from the true issue involved in the case. It cannot affect the result, if all that they allege in regard to the non-belief in 1828 of Mr. Wieting or his congregations, or even of the complainants, in some of the articles of the Augsburgh Confession, were fully proved. The inquiry is limited to the belief and doctrines of those who in 1789, and subsequently, were the donors of this property. The course of the teaching in the churches at. those periods, will be strong evidence of their faith and doctrine. The unbelief of the congregations thirty or forty years after-wards, can be of but little or no weight in the scale.

The defendants concede, what is abundantly proved by ecclesiastical history, that the Augsburgh Confession of Faith was adopted by the Lutherans as a system or summary of their faith and doctrines, at a period as early as their being known as a distinct body of Christians by that designation. We know also from history that both Luther and his leading supporters in the great work of the Reformation in Germany, strongly opposed the application of the term Lnitheran to his and their followers ; and desired to be known as the Evangelical Church-Their opponents fastened upon them the name of Lutheran as a term of reproach, years before the Diet of Augsburgh; and like many names intended to be opprobrious, and for that reason bestowed on a righteous cause, it very soon became the just pride and distinction of the Reformers, who adopted his doctrines. And they have for three centuries been known in history as Lutherans, while they have adopted for their church the name of The Evangelical Lutheran Church.

As the defendants declare that they do not dispute but that the Augsburgh Confession is a system or summary of the doctrines of the Lutheran Church, and that their own published creed contains nothing contrary to that system or summary; it may be supposed that the whole controversy is limited to the latter proposition. But the answer and testimony, and the argument at the hearing, disclosed that this declaration of the defendants is not intended to admit that the whole Confession of Augsburgh, or even the whole of its essential doctrines, were ever adopted or believed by the Lutheran Church at any period, much less at the institution of these churches. And I confess that the defendants avowal of their belief in this Confession as a system or summary of doctrine, when they avowedly disbelieve its articles on original sin and the Lord’s Supper; question other articles as remnants of Romish superstition and error; and are charged at least, with denying the Trinity, and the divinity of Christ; is to me quite unintelligible. At all events the eifect of the answer as a whole, is to put in issue the fact that the Augsburgh Confession was the standard of Lutheran faith and doctrine, when these churches were endowed, and I proceed to examine that question.

We find in the year 1789, a church founded and organized as an Evangelical Lutheran Church. What must be our inference as to the faith, doctrines and tenets of its founders 1 It is , said by the defendants that the bible is, (and I will assume that they intended to say it always was,) the sole standard of the faith and practice of the Lutherans. As the fountain head, the ground work of their faith, this is an unquestionable proposition. And every denomination or sect of Christians, from the Arian or Unitarian to the Church of Rome, asserts, and can maintain the same proposition. In¡the case of Lady Hewley’s Charity, every Unitarian trustee could with the same propriety have planted himself upon the bible as his great standard, and the rule of his faith and doctrine.

The question is not, whether the Lutherans in Germany in 1530, or the defendants claiming that name in Schoharie county in 1837, believed the bible. No one doubts but that they did. All profess to believe it, whether Lutheran, Calvinist or Unitarian. The question is, how did they understand it ? What did they believe that the bible teaches and inculcates, on the great doctrines so momentous to the immortal souls of our race ?

And we do not advance a single step in ascertaining what were the cardinal doctrines of the Lutherans, or of any denomination of Christians, when we learn that the bible is their doctrinal standard. This truth has been felt and acted upon for more than 1500 years. The Council of Nice, when assembled in the year 325, to refute the errors of Arius, proceeded upon that basis. The Protestants, at the diet of Augsburgh, acknowledged its imperative truth. The Roman pontiff followed in the same conviction, in the great and long protracted Council of Trent. From that day to this, every new sect of Christians has deemed it necessary and indispensable to set forth at large, and in some plain and intelligible manner, the doctrines and articles of faith, which, according to their understanding and mode of interpretation, the bible teaches and inculcates.

Therefore, in order to ascertain what were the faith, doctrines, and tenets of the founders of these churches, we turn to the Symbolical Books of the Evangelical Lutheran Church,

The defendants do not inform us that there was any change in those religious opinions or tenets of the Lutherans, which come in question in this suit, from the time of the Great Reformer until the era of the difficulties in these churches. In the absence of proof, this is not to be presumed. The burthen of proving it is, imposed on the defendants, and they have produced no testimony, either of living witnesses, of in the writings of historians or theologians, to show that any such change had occurred prior to the completion of the church edifices at Rhinebeck and New-Durlach.

Independent of the testimony brought forward by the complainants, on this point, the inevitable conclusion is, that the founders of these trusts, as Lutherans, believed in the faith, practice, and doctrines of that sect, as declared and expressed in its Symbolical Books ; and that they contributed their funds, for the support and preaching of those doctrines and that faith and practice.

We find that the Augsburgh Confession of Faith was, from the time of the Reformation, one of those symbols, having the first place in their enumeration; and we thus ascertain that the founders of these trusts did intend thereby to establish a church, in which the doctrines and tenets declared and established by the Augsburgh Confession of Faith, should be preached, taught, and inculcated.

This conclusion is fully confirmed by the writings of the Lutherans themselves, as also by theological writers and historians, who treat of the distinctive faith and character of the Evangelical Lutheran Church. They express but one language on this subject, to the period when these trusts were established, and so far as standard works are concerned, to the present time.

The earliest writer, in point of time, to whom I will refer, is the illustrious Lutheran historian and theologian, Louis Veit von Seckendorf, In his history of Lutheranism,(a) he says that the Augsburgh Confession, having been framed by Philip Melanchthon from Luther’s 17 Articles, called the Torgau Articles, was immediately transmitted by the Elector of Saxony to Luther, that he might signify whether it should be altered, and wherein ; and that Luther expressed his entire satisfaction with it, and said there was nothing in it which could or ought to be corrected or changed, and that nothing should be taken from it. Baron Seckendorf adds, that it went forth, the foundation of the doctrine which is in very deed, Lutheran; and he says that Luther was not pleased with the subsequent efforts of those associated with Melanchthon to modify it, in order to conciliate the followers of the Swiss Reformers.

I should remark that Seckendorf wrote more than 160 years ago, and the edition from which I cite was published in 1694.

Mr. Milner, in his Church History, calls Seckendorf “ that truly excellent and judicious Protestantand other theologians speak of his fidelity and impartiality, and call his work, from which I have cited, i£ incomparable.”

The learned Dr. Mosheim, who was himself a strenuous Lutheran, and was, in a measure, the father of ecclesiastical history, wrote his great work on that subject about a century ago. He says the Lutherans call their standard books, which contain their articles of faith, Symbolical; and that all professors of divinity, and all candidates for the ministry, must subscribe to these. He adds, that they have no authority but what they derive from the scriptures of truth, whose sense and meaning they are designed to convey. He then continues:

“ The chief and the most respectable of these human productions, is the Confession of Augsburgh, with the annexed defence to it against the objections of the Roman Catholic doctors. In the next rank may be placed the Articles of Smalcald, as they are commonly called, together with the Shorter and Larger Catechisms of Luther, designed for the instruction of youth, and the improvement of persons of riper years. To these standard books, most churches add the Form of Concord; which, though it be hot universally received, has not on that account occasioned any animosity of disunion.” (3 Mosheim’s Ecc. History, Part 2, Chap. 1, Sect. 2.) The last assertion of the learned doctor must be taken with some allowance, as he was an ardent supporter of that Formula, which, although it produced no disunion, was unquestionably much contested, and the cause of grievous intolerance ; and it was never received by a large portion of the Littheran Churches.

Walchius, (John George,) another German Professor of Theology, in his Bibliotheca Theologica, published at Jena in 1757,¡de-votes nearly one hundred pages to the symbolical and doctrinal writings of the Lutherans, and their various editions and the accuracy of each. He designates the Augsburgh Confession and its Apology, and the Articles of Smalcald, as the three symbols which are called, “ oecumenical (Vol. 1st, page 314.) At page 353 of the same volume, he says that the unaltered Augsburgh Confession is the one, “ quæ nomen et dignitatem germani verique Symboli Ecclesice Lutherance teneatur"

And Walchius ranks the Smalcald Articles as next after the Confession and Apology.

Milner’s Church History, (ch. 13, page 962,) informs us that the 17 Articles which had been drawn up by Luther, and twice submitted in the conferences at Sutzbach, and once at Smalkalden, as the confession of faith to be agreed upon by the Protestants, were delivered by him at Torgau, to the Elector of Saxony, who was then on his way to the Diet of Augsburgh ; and Melanchthon was employed by the Elector and the other reformers, to make them into a more orderly and elaborate composition. The Augsburgh Confession of Faith was the result of his labors.

Mr. Haweis, in his continuation of Milner’s History, (chap. 22, p. 986,) says, “ The Lutheran doctrine is avowed to be comprised in the Augsburgh Confession of Faith, and in Melanchthon’s Apology, and these are regarded of the first authority. The articles of Smalcald and the Larger and Shorter Catechism of Luther, are received in that church as directorial. The Form of Concord, received by the more rigid, was warmly disputed, and was rejected by the more moderate.”

Mr. Adam in his Religious World Displayed, speaking of the Symbolical books of the Lutherans, says that their legitimate formulary of faith is the edition of the Augsburgh Confession of 1530, which edition is called Augustana Confessio invariata. That the subsequent edition which was altered by Melanchthon, but not in any very material parts, was called variata ; but the Lutherans, as early as 1579, made the distinctinction, and have never admitted the Confession in this new shape, as one of the standard books of their faith and doctrine. Next to the Confession of Augsburgh, with the defence of it against the Roman Catholic doctors, better known as Melanchthon’s Apology, Mr. Adam ranks the Articles of Smalcald, together with the Shorter and Larger Catechisms of Luther. And he adds, on the authority of Mosheim, that most churches, to these standard books, add the Form of Concord, but that it is not universally received. (Vol. 2d, pages 338 to 340, Article Lutheranism and Lutherans.)

In a very recent Church History published in Germany by one of the most learned Professors of Theology of the present day, the Handbuch de Kirchengeschichte, (by Heinr. Ernst Fred. Guerike, Theol. D.) after giving an account of the rise and progress of the Lutheran Church, the author states that the Formula of Concord, drawn up in 1576 and 1577, and published in 1580, was devised and prepared for the purpose of bringing back their doctrines to the earlier confessions of faith of the Lutheran Church and to the doctrine of Luther, and to distinguish them from Calvinism. (Guerike, Vol. 2, p. 1029. Ed. 2, Halle, 1837.) The author had previously given a full account of these earlier confessions, placing in the front rank that of Augsburgh.

Without citing more of the numerous German and English writers on this prolific subject, I will advert to some of our American theologians.

In 1818, George Lochman, a Lutheran clergyman at Harris-burgh, Pennsylvania, and afterwards a doctor of divinity, published “ The History, Doctrine and Discipline of the Evangelical Lutheran Church,” which appears to have been a book of authority at that period, on the subject on which it treats. He says, (p. 84,) that the symbolical books of the Lutherans are The Augsburgh Confession, The Apology of the Confession, The Short and Larger Catechism, and the Smalkalden Articles; He then inserts at large the twenty-one articles or chapters of the Augsburgh Confession which are esteemed essential, omitting the seven last of the 28 Articles of which it consisted, and which seven are devoted to pointing out the errors and abuses that occasioned the separation from the Romish Church. With the 21 articles, Loch man intersperses extracts from the other symbolical books. 1

Dr. Schrnucker, another distinguished Lutheran divine, and for many years the Professor of Theology in the Theological Seminary of the Lutheran General Synod at Gettysburg, Pa., published his Elements of Popular Theology, in 1834, which work was written at the request of the General Synod.

He says, (p. 40,41,) that the “ Augsburgh Confession, which is justly styled the mother symbol of the reformation, has been adopted by the major part of all Protestant Europe, and has for about three centuries past, been the standing symbol of Lutheranism in the following kingdoms; Germany including Prussia, part of Hungary, and a small part of France, Denmark in which the king must profess the Augsburgh Confession, Norway, including Iceland, and Sweden.” He says the Moravians, or United Brethren, though peculiar in their church government, have always retained the Augsburgh Confession as their symbol. He also says, “ The Lutheran Church in the United States has always regarded it as the authorized summary of her doctrines, but has not required any oath of obligation to all its contents. The General Synod has adopted only the 21 doctrinal articles. No minister, however, considers himself bound to believe every sentiment contained in these 21 articles; but only the fundamental doctrines.”

Dr. Schrnucker furnished the principal part of the article, “Evangelical Lutheran Church,” in Rupp’s History of all the Religious Denominations in the United States, published at Philadelphia, during the present year, and the same statement is there made in regard to the symbols of that church.

The Encyclopaedia of Religious Knowledge, an industrious compilation, but whether a book of authority I have not learned, says, “the Augsburgh Confession, consisting of 21 articles, is the acknowledged standard of faith for the Lutherans wherever they are found.” (Appendix, p. 1259. Article, Lutheran Evangelical Church.) The same thing substantially, is said of the German Protestants, in the Encyclopaedia Americana, vol. 10th, p. 540, Article, Reformation.(a)

The Evangelical Lutheran General Synod of the United States, of which the Hartwick Synod forms a part, requires all candidates for licensure to the ministry, expressly to profess their belief, 1. in the Scriptures as the word of God, and the only infallible rule of faith and practice. 2. A belief “that the fundamental doctrines of the word of God, are taught in a manner substantially correct in the doctrinal articles of the Augsburgh Confession.” (See their Doctrine and Formula, for the Government and Discipline of the Evangelical Lutheran Church, Troy Edition, 1832, ch. 18. sect. 5.)

And no other symbolical book is referred to in the ceremony of licensure. Dr. Schmucker in his Popular Theology, says that this pledge is required by the Lutherans generally on licensure.

The New-York Ministerium has not adopted the Formula of the General Synod ; but it appears from their published reasons, to which the defendants referred, and which are quoted in Mr. Lawyer’s Address to the Franckean Synod in October, 1837; that their declining to adopt it was on account of the rights of judicatory to which they would thereby become subject, and not because of the adoption of the Augsburgh Confession. The East Pennsylvania Synod, the oldest as well as largest in the United States, did not adopt the Formula, and receded from the General Synod. Their reasons were not made known to me.

It did not appear that any Lutheran Synod or church in the United States, (except the Franckean Synod,) had adopted any Formula or Declaration of Faith, in lieu of the Augsburgh Confession, or in effect a substitute for .it, or in any manner variant from it; or had repudiated or publicly denied the authority of any of the Doctrinal Articles of that Confession.

The Lutheran Synod of Tennessee, which in 1834 was not in connection tvith the General Synod, and I believe has never united with it, expressly adopted the Augsburgh Confession of Faith entire, containing the whole 28 Articles.

The synods of Ohio, which next to that of East Pennsylvania, are the largest body of Lutherans in this country, adopted the whole Confession in the same manner.

Thus it appears from the origin and history of the Lutherans, and the concurrent and overwhelming testimony of theological writers and ecclesiastical historians, that the Augsburgh Confession of Faith was one of their principal symbols, and declared their doctrines, articles of faith and rules of discipline, from the year 1530, until long after the endowment of the churches in question.

I will now speak of the evidence in the cause, bearing upon its actual adoption in those churches.

Without repeating it in detail, the testimony proves that the old members of these churches, those who were contemporary with the grant of the land, as well as the erection of the edifices, adhered to the Augsburgh Confession and regarded it as the ground work of the Lutheran doctrine; that the Rev. Mr. Sommer, in the Schoharie church, explained the confession to those who joined the church; and that Dr. Wacherhagen, when ministering in the Lutheran church in Schoharie in 1808, treated the Confession as the articles of faith of that church; and ten years, before the Augsburgh Confession was read in ■ the same church by the minister, on admitting persons as members of the church. One of the witnesses had been a member of the Rhinebeck church for 47 years, and was a trustee when their house of worship was erected. It was objected to his testimony, that he had never read the Confession, and could not tell what was meant by it. I think that this does not overcome the force of what he states. He may have heard so much about the Augsburgh Confession, that the name and circumstances became indelibly impressed on his memory, without his ever knowing what was its import. He might well remember that a certain church went by the name of Lutheran, without having ever known the origin of the name or its meaning.

Martin Simmons, a witness, 70 years of age, belonging to the Dutch Reformed Church, states that he was present at the dedication of the New Durlach church; and that at the close of the dedication sermon, the minister who preached it, the Rev. Mr. Krotz, said, “ This house is dedicated unto the Lord, an Evangelical Lutheran House of Prayer, in which the gospel is to be preached, and the sacraments of Baptism and the Lord’s Supper to be dispensed, according to the Augsburgh Confession.” When this was stated in English by the witness, his language was slightly varied, but in no essential particular. The sermon was preached in the German language.

To prove that Simmons was mistaken, or not to be believed, the defendants called four witnesses who were present at the dedication, and heard nothing said about the Augsburgh Confession. They were all Lutherans at that time, although three of them have since withdrawn from that communion. Of these witnesses, Mr. Shafer does not recollect that the sermon was in German, but does recollect all the dedicatory words stated by Simmons, except those relative to the Augsburgh Confession. Henry France remembers that the sermon was in German, but does not remember any dedicatory words, nor any particular words of the sermon. Mr. Loucks does not recollect which of the three clergymen present on that occasion preached the dedication sermon, nor that there was any dedication distinct from the sermon.

David France remembers that Mr. Krotz preached the dedication sermon in German ; and it appears to him that Mr. Krotz said, “ this house is dedicated to the Lord, and that it should be a house of prayer.” But this witness is mistaken ten years in the time of the dedication. Upon the whole, I cannot discredit the testimony of Simmons. On the same ground, the testimony of one or more of the defendants four witnesses would be discredited, for they differ in their recollection, more or less. Two of them confirm Simmons in the fact that there was a form of dedication used, both concurring with him in the words as far as they go, and one remembering much more of it than the other. And it is certainly more probable that Simmons, who was not a Lutheran, and not familiar with their standards, would remember the use of the words “Augsburgh Confession” in the dedication, than those to whom they were, in a measure, household words, and to whom their use in the dedication of a Lutheran Church, may have appeared so much a matter of course as not to attract attention.

The positive testimony of a witness to a fact which he was, in a situation to know, is not contradicted by the testimony of others present who do not recollect the occurrence. The general accuracy of Simmons’s recollection is confirmed by all of the witnesses; and upon the best consideration which I can give to it, I am bound to believe his testimony.

The Rev. 'Adam Crownse, when a boy, resided in these congregations, and was taken into the church by the Rev. Mr. Moeller, the first settled preacher there. He says that on that occasion, Mr. Moeller, in his lectures preparatory to confirmation, referred to the Augsburgh Confession, as exhibiting the doctrines of the church. Mr. Crownse succeeded Mr. Moeller, and was the pastor of these churches from 1823 to 1828; and he says, that during that period, it was regarded as containing their fundamental rules and doctrines; and in 1825 or 1826, it was formally adopted at a convention of the two churches, as published in Dr. Lochman’s work.

This evidence, of course, does not of itself show what were the standards of the founders of these two churches. But it reflects back with a strong light to the period of the foundation. If the Augsburgh Confession had been an innovation, a new thing, unknown to the fathers of the two churches and to those who were contemporary with the Rev. Mr. Sommer, and the donors of the property in question ; the proposal to adopt it in 1825 would have made a commotion, at least equal to that occasioned by the secession from the Hartwick to the Franckean Synod.

Further evidence of the same character is furnished by the defendants themselves. The Hartwick Synod was formed in 1830, and these churches constituted a part of it. In 1831, and again in 1834, Mr. Wieting, then the pastor of these churches, was present, and an active participator in the proceedings of that synod, and of the Ministerium. At the session in 1831, the Hartwick Synod unanimously adopted the Formula, &c. of the General Synod of the United States, containing the Augsburgh Confession; and on Mr. Wieting’s motion, directed a thousand copies of it to be printed, under the direction of the secretary, and it was published accordingly. Mr. Lawyer was at that time the secretary of the synod. In 1834, as chairman of one of the committees of the Hartwick Synod, Mr. Wieting made a report, in which he eulogizes, in strong terms, Schmucker’s Popular Theology, then a recent work, and says, “ It ought to be the next in rank to the bible in the “ library of every Lutheran.”

Yet this book declares that the Augsburgh Confession has always been regarded by the Lutheran church in this country as a summary of her doctrines, and her ministers are required to profess their belief in its doctrinal articles. In another report made at the same session, in conjunction with Mr. Crownse, on the Hartwick Seminary, he speaks in high terms of that institution, and commends it to parents, &c. It appears by the theological course of study at that time pursued there, that during two terms of the third or licentiate’s year, the Symbolical Books were regularly studied, in course.

At the sessions of the Hartwick Synod, both in 1831 and 1834, the Ministerium proceeded to the licensure and ordination of ministers, in the manner prescribed by the Formula of the General Synod, and the ministers ordained on each occasion, were made to give upon the bible, with the solemnity of an oath, the pledges required by the Formula.

We thus have the strongest recognition by the Rev. Mr. Wieting, evidently the leader and the masterspirit amongst the defendants, that the Augsburgh Confession was one of the standards of the faith and doctrines of the Evangelical Lutheran Church, as constituted within the bounds of the Hartwick Synod, and in the churches in question, as late as the year 1834.

Again, when Mr. Wieting gave his reasons to the assembled members of these churches in 1837, for separating from the Hartwick Synod; his objection to that synod was, that they believed in the Augsburgh Confession, and no one could be admitted to that body without subscribing it.

The four witnesses for the defendants before mentioned, testify that on their admission to the Lutheran church, they did not hear any reference to the Augsburgh Confession. They were all previously instructed in Luther’s Catechism. Only one of them was admitted in these churches. Two state that they have frequently been present when Mr. Moeller confirmed persons, and that he said nothing about the Augsburgh Confession. And one of them who is still a Lutheran, says that he never knew it to be the standard of faith in these churches. He supposed that the bible was their standard.

The circumstance that the Augsburgh Confession was only occasionally, or even rarely mentioned, in the usual public services of the churches, does not go far to show that it was not one of their standards or symbols. Its doctrines were more familiarly expressed, and better adapted to the minds of plain and unlettered men, in the Catechisms of Luther; and there would be but little occasion to speak of the Confession, the Apology, or the Smalcald Articles in the ordinary course of the church. In a Presbyterian church, the Westminster Confession may not be mentioned publicly for a year together; and the same silence occur as to the Thirty-nine Articles in a Protestant Episcopal Church; and neither event excite surprise or even observation ; and yet no one would the less believe and understand that these were the standards of the two churches respectively. Nor is this question influenced by the sale of a part of one of the church edifices to the Presbyterians, and its re-purchase. The answer does not mention this fact; and if it did, there is no evidence that the part sold was ever conveyed or paid for, or that it reverted, for any different trust or purpose than that for which it was previously held.

The evidence of the several clergymen who were examined on either side, so far as it affects the general question relative to the Lutheran standards, is chiefly historical, and it was held by several of the judges, in the case of Lady Hewley’s Charity, that such testimony was inadmissible. It being derived from books, the books themselves are the better evidence.

Again. It is a marked feature of the case, that those who deny the adoption of the Augsburgh Confession in these Churches, or by their founders, do not bring forward any symbolical book or declaration of faith as having superseded it, or been received by the Lutherans of the last century in its stead. The other known Lutheran Symbols, as I will presently show, do not relieve them from this difficulty; nor are they urged as having had any different or greater force than the Confession, among the Lutherans in this country. The allegation of the defendants is, that the bible is the only Lutheran standard, as it was of Luther himself. But this, as I have already said, is an evasion of the point. Martin Luther set forth in the Augsburgh Confession, the great doctrines which the bible, in his understanding of it, taught and inculcated. The Council of Trent did the same, in its Doctrinal Decrees. So did the Synod. convened at Dordrecht, in the canons there declared. So did the Westminster Assembly. And so have the defendants themselves done in their Declaration of Faith, in the constitution and standing ordinances of the Franckean Evangelic Lutheran Synod, now in evidence before me. These standards distinguish one Christian sect or denomination from another, and we look to them to see whether a church be Lutheran, Calvinistic, or Roman Catholic, or of some other belief.

Nor do we obtain any aid from the argument, (or the evidence tending to support it,) that the Augsburgh Confession has never been adopted as the standard of faith of the Lutheran Churches in the United States, or of these particular churches. If the argument is to be taken literally, it is probably true in most instances ; and it then amounts to nothing. I have no doubt it may safely be asserted, of two thirds of the churches in the United States, that: they singly, have never formally adopted any standard of faith or creed. Yet no one imagines that they are therefore without one. When a church is established as a Dutch Reformed Church, they have their standards in the canons of Dort and the Heidelburgh Catechism. So of the various other sects. From their designation and their distinctive character, we learn what are their peculiar faith and tenets. The belief in which the founders grew up, and which they professed, becomes the belief of the church of their institution. It is co-existent with the church itself. The name of their sect announces to the world what is that belief; and it is as much the faith of the church so founded, as if it were formally adopted in a public meeting, and then engraved on its walls. So when new sects spring up, professing, as they invariably do, to look to the bible alone as their standard of faith and doctrine; the moment that they attempt to show wherein other sects depart from that standard, they are driven to set forth their own peculiar interpretation of the bible, their doctrines and belief. These, whether so called or not, constitute their creed, which the world is to understand that they maintain.

In support of the position that the Augsburgh Confession had never been adopted by the Lutheran churches in this country, two clergymen of the Franckean Synod were called as witnesses, and they state sundry points of doctrine contained in it, which many Lutheran ministers either do not approve, or positively condemn. And I am referred to an extract from Professor Miller’s sermon, as evidence that he did not believe in the Articles of the Augsburgh Confession relative to baptism and the Lord’s Supper; nor indeed in the propriety or advantage of Creeds in general. It is unnecessary to say whether this is proper evidence ; Mr. Miller being a competent witness to prove his own opinions.- There are two considerations which it appears to me, render this species of testimony unimportant.

1. It does not go to the period of the foundation of these trusts. And, 2. It at most proves instances of partial dissent, which are of frequent occurrence in all churches and denominations, and which have occurred from an only period of the Christian era. They have been more frequent since the Reformation restored freedom of conscience; and sometimes they ripen into secession. But they prove nothing against the general faith and doctrines of the sect in which they happen. If I may allude to another church controversy of general interest at this day, the 39 Articles are the standard of the Church of England, although Archbishop Whateley on the one extreme, and Dr. Pusey and Mr. Newman on the other, are as far separated in their views of those articles, as are the litigant parties in this case relative to the true standards and doctrines of the Lutheran Church.

The omission in the copies and translations in common use, of the seven last articles of the Augsburgh Confession, was also urged against its authenticity as a standard of the Lutheran Church in this country. An examination of the whole 28 Articles shows, what all the writers on the subject state, that the seven last articles of that memorable document, were drawn up for the purpose exclusively of showing to the Diet the abuses and corruptions of the Romish Church, of which the Protestant Reformers more especially complained. Those articles contain no declaration of faith or doctrine; and after the separation between the Romanists and Protestants had become permanent, and the immediate interest of that event had ceased, the seven articles came to be omitted in the publications of the Confession. They were valuable as matters of history, but were not of any practical application in the Lutheran churches.

The other Symbolical Books of the Lutherans do not differ, at least in favor of the defendants tenets, from the Augsburgh Confession. Most of them are subsidiary to that instrument, and both their form and substance show that they were not designed to supply the place of the Confession.

Thus, the Defence of the Confession, (the Apology,) drawn up by the pious and el,oquept Melanehthon, and delivered to the Emperor Charles the Fifth, on the 22d September, 1530, was .occasioned by the first impulse of anxiety and alarm among the Protestant potentates, on the rejection of the Confession by the Diet of Augsburgh, and the severe decree first made thereupon against the Protestants and their faith. It was, of course, offered for the purpose of appeasing the Emperor, and obtaining some modification of the decree, or some ground of compromise, by which sanguinary persecution and civil war might be averted.

And I am sure that Melanchthon’s exordium, or introduction to the Apology, would be deemed by the defendants as far more anti-scriptural, than any thing which they find in the Augsburgh Confession; especially on the subjects of the efficacy of baptism and the real presence in the Lord’s Supper. (See Melanchthon Operum Omnium, pars 1, fol. 58, editio 1580, and Seckendorf’s Commentarius, lib. 2, sect. 35, § 79, additio.)

And we learn from the valuable Church History of Guerike, (vol. 2d, page 863,) that Luther, when writing to Melanchthon respecting the Apology, says, that “ it has conceded all too much. If they will not take that, 1 do not know what I could give more.” And Luther held similar language at the same time, in a letter to the Land-grave of Hesse.

So of the Smalkaldic Articles drawn up by Luther, with the aid of other theologians, under the auspices of the third convention of the Smalkaldic League, and signed in 1537. These Articles were chiefly an enlargement of the last seven articles of the Confession, displaying the abuses and errors of the Church of Rome, and contained moreover, for the first time in terms, an express denial of the authority of the Pope. They also set forth anew, the leading doctrines of the Protestants who agreed with Luther, and in that respect fully confirmed the Augsburgh Confession, adopted at Smalkalden. And, indeed, the Articles declare, in so many words, that the convention republished and declared their assent to the Confession and the Apology, and directed them to be taught in, and believed by their churches.

Here again the defendants find no encouragement for their peculiar views, by rejecting the Confession, and setting up the Smalkaldic Articles as the more authoritative symbol of the Lutheran faith. The obnoxious doctrines are in some instances more strongly expressed in those Articles than in the Confession. Thus, of the Holy Supper, the Articles say, “ Sentimus (‘panem et vinum in coena esse verum corpus et sanguinem “ Christi without the qualification of the words, external signs. (Seckendorf, lib. 3, § 55, 56.)

The Formula Concordias which was generally adopted, stands on the same footing in respect to this controversy. We have seen Dr. Guerike’s account of the object of the Formula. And Dr. Mosheim says it was especially employed to preserve the Lutheran Church against the opinions of the Reformed Church relative to the Eucharist. (Part 2, ch. 1, § 39, vol. 3, p. 254.)

The Catechisms of Luther will scarcely be referred to as teaching any different essential doctrines from those contained in the Confession ; much less as a superior or more authentic exposition of the belief of the Evangelical Lutherans. They teach the doctrines in more simple language, and perhaps better adapted to the purpose for which they .were designed. But it is not claimed, and certainly there appears to be no historical ground for claiming it, that Luther himself ever changed his views in regard to the three articles of the Confession, which become important in this suit.

I have been thus minute in reference to the Symbolical Books, in order to show that the Augsburgh Confession of Faith, while it is always the first mentioned in enumerating them, is also the chief and principal standard. And that in its bearing upon the defendants position, it is no less favorable than if it were shown to have been secondary or subsidiary to the others.

One fact is also decisive of its being deemed the great Symbol of the Lutherans, which is that it is found published at large in a great variety of forms; and one of the witnesses speaks of it as being contained in the old German bibles j while on the other hand, the Apology, the Smalkaldic Articles and the Formula, are very rarely to be found, in extenso, even in our large public libraries.

Buck's Theological Dictionary, Article, Lutheranism, was referred to in connection with the defendants argument, that the Lutherans have long .ceased to believe in several of the doctrines and practices inculcated by the Augsburgh Confession. This book, although widely disseminated, is not a work of authority as I am informed by those best acquainted with this department of knowledge.

On the other hand, Mr. Adam’s book, before referred to, which was published within the last thirty years, says in reference to the Lutheran Church; “ From the time of Luther to the present day, no change has been introduced into the system of doctrine and discipline that is received in this church; so that the ancient confessions and rules that were drawn up to point out the tenets that were to be believed, and the rites and ceremonies that were to be performed, still remain in their full authority, and ate considered as the sacred guardians of the Lutheran faith and worship.” (Religious World Displayed, vol. 2d, page 335.)

Mr. Adam proceeds to say that the method of illustrating the doctrines of Christianity has undergone several changes in the Lutheran Church, although the confessions continue the same. The particular doctrines which he specifies as being the subject of this change, are the Calvinistic tenets of absolute predestination, human impotence and irresistible grace, of which, he says, Luther was an advocate, but that he has in this respect, very few followers among those that bear his name. As the Lutheran symbols declare no such doctrines, the unbounded liberty of dissent mentioned by Mr. Buck could not have referred to the doctrines which Mr. Adam details as the chief points in which their method of teaching has changed since the time of Luther.

The recent Union of the Evangelical Church in the Prussian dominions, effected by governmental authority, corroborates the view of Mr. Adam. For in that Union, embracing the Reformed as well as Lutheran churches, the articles of faith are chiefly from the symbols of the latter; the former yielding in a great degree the high toned doctrines of the Five Points, and the Lutherans in the Union, assenting to the spiritual presence only in the sacrament of the Lord’s Supper. But in this Union, the churches expressly relinquish their name and character as Lutheran Churches; and it therefore gives no support to Mr. Buck’s statement. And I might add, that it has produced the bitter fruits which might be expected from forcing the consciences of men; great dissatisfaction, heart burnings, irreligión, and that tendency to infidelity, which is the reproach of a great mass of the German Protestants of this day. Another consequence, of which we cannot complain, is the extensive emigration of Prussian subjects to the United States.

It is, doubtless, true of the Lutherans as of every other sect, that various learned men amongst them have held different views in regard to some of the articles of their faith and doctrine, and have published their variant constructions of such articles. And this is peculiarly the case in reference to the Lord’s Supper, holding, as they did, a sort of debateable ground between the simple commemoration of the great Swiss Reformer, Zuingli, and the transubstantiation of the Romish Church; and still variant from the spiritual presence held by Calvin and his immediate followers. But in respect of the three essential points which form the issue in this suit, I do not find that any Lutheran of note, much less any considerable or even respectable portion of the Lutheran Church, ever, either by profession or construction, held any different doctrine from that contained in their leading Symbols, from the days of Martin Luther to the era of this controversy.

Occasional differences and dissents among the Lutherans, on their doctrinal articles, do not, as I have already said, impugn the position that their standards as a church remained the same. And such dissent, if it had been shown to have existed upon these three points, must be traced to the founders of the churches in question, in order to establish the defendant’s ground in regard to the force of the Confession.

To conclude this most interesting and importaat branch of the case. I find that these churches were founded as Evangelical Lutheran Churches, by the descendants of Lutherans who fled from Germany to avoid religious persecution; that for more than two centuries prior to their foundation, the Augsburgh Confession of Faith had been one of the principal, and the first in rank of the symbolical books and standards of the doctrines of that denomination of Christians ; and that no other or different symbolical books are shown to have been recognized or known among the Lutherans who endowed these churches, or in any of the Lutheran congregations which then existed in this country or in Europe. All of this is established by the concurring testimony of every historian, and of every theologian, who has written on the subject prior to the year 1830; so far as my own researches, aided by the great learning and untiring diligence of the counsel in the case, have enabled me to discover.

In addition to this, I find that the Augsburgh Confession was treated as their doctrinal standard by several of the contemporary members of these churches, and was recognized from time to time by their pastors, for twenty years after they had procured stated preaching in the churches. That one of the church buildings was dedicated to be used according to that Confession, for preaching the gospel and administering the sacraments; that, at a much later period, the churches formally adopted the Augsburgh Confession, and subsequently attached themselves to a synod which adheres to it; and finally that until the year 1837, no other confession or declaration of faith or doctrines was known in those churches, save the Smybolical Books before mentioned, of which this was the principal, and next to the Catechisms, the best known and understood.

It is therefore established that the Augsburgh Confession of Faith was accepted and receivei oy the churches in question at the time of their endowment, e 1 by the members thereof, as their confession of faith; and t' ^ churches were founded for the purpose of having the faith B ’’ I doctrine expressed in that • Confession, taught and inculcate'' .erein. And that in respect of the doctrines in question in ; suit, there never had been any established or even known 1 ent from the Augsburgh Confession in this, or any of th , _ -eran churches.

Fourthly. The next great it it becomes my duty to examine, trusts in question by the defendí charges the defendants with havii jetween the parties, which e alleged perversion of the . The bill in substance abandoned and repudiated the Augsburgh Confession of Faith in these churches; that they have seceded from the Hartwick Synod without the sanction of the latter; and organized with other churches, a new and independent synod, and adopted a new declaration of faith, and a peculiar government at variance with the faith and government of the Evangelical Lutheran Church. That this new declaration of faith, differs from the Augsburgh Confession in three essential particulars, viz.:

1. It does not maintain and declare the doctrine of the Trinity, or that the three persons constituting the Godhead, are equal in power and glory ; or even that there are three persons constituting the .Deity. 2. It does not declare or admit the divinity of Jesus Christ, or his equality with God the Father. 3. It does not teach or declare that man will be condemned to punishment in a future state, because of original or inherited sin, unless it be repented of; or that it condemneth all who are not born again of water or of the Holy Ghost.

I will omit the subject of the government and judicatories of the church for the present, while I examine the other issues made.

I. The defendants by their answer deny that theB Franckean declaration of faith is essentially variant from the Augsburgh Confession, in respect of the doctrine of the Trinity, or that it is in any wise Unitarian. And they aver that it declares essentially the doctrine of the Trinity, as professed and believed by the whole denomination of Lutherans. And they further aver that they believe that doctrine in its fullest extent, as taught by the Augsburgh Confession.

The defendants examined as witnesses, two clergymen of the Franckean Synod, one of whom, (Mr. Lawyer,) by his ability and intelligence appears to have merited the place of leader and prime actor in its organization. They both assert that the members of that synod believe in the Augsburgh Confession as a system or summary of doctrines, but they do pot believe, nor do Lutherans generally profess to believe, in certain doctrines therein declared. Both mention the second article, (on inherited sin,) as one of these, and also private confession and absolution. Mr. Lawyer says that several points in the Confession, are considered by many Lutheran ministers as relics of Roman Catholic doctrines; such as the real presence in the Lord’s Supper, baptismal regeneration, and the idea that God, the divinity, died at the passion of Jesus Christ.

Undoubtedly, the most authentic as well as conclusive evidence of what the defendants and the Franckean Synod believe and teach ; is to be found in their Declaration of Faith. Hr. Wieting, representing the defendants as their pastor, and one or more of the defendants also representing the others and professing' to answer for the church as lay delegates; participated in framing and promulgating this declaration, both in 1837 and 1838. And the published proceedings declare that the constitution containing the same, was unanimously adopted on both occasions. The defendants in their answer state the one adopted in 1838, to be “ a summary exhibit of the system of doctrines” held to and inculcated by Lutheran churches.

It was therefore put forth to the world as the standard of the doctrines of the adherents of the new synod. It declared to all mankind, how they understood the bible, and wherein they differed from other Christian denominations in their doctrinal belief.

It is also evident, that they no longer recognised the Augsburgh Confession as their symbol or doctrinal standard. Their constitution makes no allusion to it. They adopted a similar declaration, as the 12th Article of their constitution, which as the president of their synod stated in his address in October, 1837, “contains the doctrines which (they) believe, and not those points which (they) do not believe.” This, in effect, superseded every different standard. Indeed, the president cites the entire silence of their constitution in regard to the Confession, as proof that they have not renounced it. This is however a mere play upon words. He declares in the address that they do not believe in all the doctrinal articles of the Augsburgh Confession. Some of them, he says, are manifestly unscriptural; and “ we do not receive and adhere to it complete, entire, and in all points of doctrine.” In the report of a committee at the same meeting in October, 1837, in reference to the Hartwick Synod proceedings, they speak of that Synod’s regarding and adopting the Augsburgh Confession as the standard of the Evangelical Lutheran Church, as being “a fact of which they were never before apprised, and which is worthy to be fully understood by the churches.” As if its being so understood, would turn aside other Lutheran Churches into the Franckean Synod, which adopted a more scriptural standard. This report is signed by Mr. "Wjeting, and one other of the defendants.

Further, it is proved by Dr. Moeller, that Mr. Wieting, in the fore part of May, 1837, when5 he gave from the pulpit of one of these churches his reasons for separating from the Hartwick Synod, stated that he did not believe the Augsburgh Confession. That it was an antiquated" thing, unfit for the present age,. Nicholas Russell testified that one of the defendants, a deacon in the New Rhinebeck Church; told him that they, the Franckeans, had put the Augsburgh’ Confession entirely aside, and held to the bible, and nothing but the bible.

By Section 2 of Article 6th of their Constitution, they require, every church which seeks tó become connected with their synod, to adopt the constitution ; and the 4th section reserves to the synod the power of cutting off any church that shall be proved to have become fundamentally corrupt in doctrine. And in their form for the “ Ordination of Ministers,” published by order of the synod, in the church discipline, the candidates are required to promise faithfully to observe the constitution.

I cannot doubt, therefore, but that the defendants have abandoned the Augsburgh Confession of Faith in these churches, and that in some essential articles, they1 have repudiated it.

But the complainants are restricted to the points stated in their bill; and I redur to them, to see Whether the Franckeans have repudiated the Confession in those points, or adopted a declaration or creed at variance with it.

The first article of the Augsburgh Cóhfession of Faith is in these words : “ Of God. In the first jilace, we unanimously teach and hold, agreeably to the decree of the Council of Nice, that there is one only Divine Being, who is called, and truly is God; but there are three persons in this only Divine Being equally powerful, equally eternal; God the Father, God the Son, and God the Holy Ghost; all three one Divine Being, eternal, without parts, without end; of unmeasurable power, wisdom, and goodness ; the creator and preserver of all things, visible and invisible.”

In addition to this, the third article, (“ Of the Son of God,”) declares that God the Son “ eternally rules over all his creatures, and governs; that he sanctifies, strengthens, and comforts, through his Holy Spirit, all who believe in him, and gives unto them life and various gifts and blessings, and that he defends and protects them against the devil and against sin.”

The first declaration of faith adopted by the Franckean Synod in May, 1837, contains this substitute for the first article of the Áugsburgh Confession.

“ Of God and Creation.” (We believe,) “ 2. That there is only one true and living God, called and made known by revelation under the name of the Father, Son, and Holy Ghost ; infinite and immutable in all natural and moral perfections ; the Almighty maker of heaven and earth, and of all things, visible and invisible.”

The 4th clause, relative to Jesus Christ, does not attribute to him any of the powers of God.

The difference between the Augsburgh Confession- and the Franckean Declaration of 1837, in respect of the Trinity, is too obvious to require extended comment.

Mr. Lawyer frankly testifies that the latter does not affirm three persons in the Godhead,- nor aver" that God the Son and God the Holy Ghost are equally powerful and eternal with God the Father; and that a believer who confines the glory and divine attributes to the Father, and to him only, might by construing the article, subscribe to it.

On the other hand, Mr. Ottman testifies that he thinks this article in the Franckean declaration does imply three persons in the Trinity, and that it distinctly avows that God the Son and God the Holy Ghost, are equally powerful and eternal with God the Father.

I can only say as to this, that it requires much more acuteness than I am accustomed to see brought in aid of construction, to make any such thing out of the article in question.

So far as I can judge of language when applied to this subject, the Franckean declaration, in 1837, as to God, was nearly or quite, Sabellian. The Sabellians held that there was but one person in the Godhead, and reduced the three persons in the Trinity, to three characters or relations. Sabellius himself made use of this comparison to illustrate his doctrine; 11 as man, though composed of body and soul, is but one person, so God, though he is Father, Son and Holy Ghost, is but one person.” And he taught that the Word and the Holy Spirit, are only virtues, emanations or functions of the Deity; that the Father, Son and Holy Ghost, were one subsistence and one person, with three names.

The fourth section of the Franckean Declaration of 1837, is also in connection with the second, substantially conformable to the view of Sabellius ; for he held that a certain portion of the divine nature, was united to the son of God, the man Jesus, in the same manner that he considered the Holy Ghost as a portion of the everlasting Father.

At the second annual session of the Franckean Synod, held in June, 1838, their declaration of Faith was revised and published anew. The reason for this revision, as Mr. Ottman, one of their licentiates, testifies, was that the doctrines of the Trinity were not so expressly, distinctly-and fully declared, as they wished to have them.

The fact of altering the declaration in this respect, with the reason assigned, confirms all that I have said of its intrinsic character.

The new Declaration of Faith, published in 1839, is contained in Article 12th of the Constitution. The second section is in these words:

“ Of God and Creation. 2. (We believe,) “ That there is only one true and living God,'and that in this one God there is a distinction of three, revealed in the Scriptures, as the Father, the Son, and the Holy Ghost; inseparably connected with one another, possessing the same essence, and equal and alike, infinite and immutable, in all natural and moral perfections j the Almighty maker of heaven and earth, and of all things visible and invisible.”

This, the defendants insist, exhibits the doctrine of the Trinity as held by the Lutherans and by all Trinitarians, in its fullest extent.

The first remark that occurs is, that if such were the design, why did they not adopt the first article of the Augsburgh Confession ; the language of which is at once plain, intelligible and explicit, and which requires no resort to theological dictionaries or class books, to be understood by the most unlettered Christian1? I say understood, so far as this holy and sublime mystery may be understood by men in the present life.

And I confess that I approach the examination of all these questions, and especially of the one under immediate consideration, not only with great diffidence and profound reluctance, but with an oppressive sense of the inherent difficulties which ever have attended, and to the end of time must attend, their explication. But it is a duty from which I may not shrink ; and it is a satisfaction to know that if I err in its performance, the parties can readily review and redress my judgipent.

To arrive at a conclusion satisfactory to myself, I have resorted to the creeds, doctrinal standards and authoritative publications of the various denominations of Christians, to see in what language they express their belief in relation to the Supreme Being.

First. In those denominations which not only avow a full belief in the Trinity, but are conceded by all the world to hold that doctrine.

In the Church of Rome, the doctrinal decrees of the Council of Trent contain their standard of faith. The first decree is “ The Creed of Faith,” and commences thus :

“ In the name of the holy and undivided Trinity, Father, Son and Holy Ghost.” It then proceeds with the confession of faith in the words of the Nicene Creed; which, I need scarcely say, affirms three distinct existences or persons in one God, who are equally adored and glorified ; that the Son is God of God, born of the Father before all ages, is to judge the living and the dead, and of whose kingdom there shall be, no end ; that the Holy Ghost is the Lord and Giver of Life, who proceeded! from the Father and the Son, who spoke by the prophets.

In Rupp's History of all the Religious Denominations in the United States, a work compiled with great care, and by theologians esteemed a book of high authority, (the articles on each sect having been prepared by an eminent writer of that sect;) Professor Walters, in the article on the Roman Catholic Church, says, “ The Catholic Church holds, as the foundation of all religion, that there is but one supreme, self-existent, eternal Deity, infinite in wisdom, in goodness, in every perfection; by whom all things yrere made,” <fcc, “ It teaches that in this one God, there are three divine persons, perfectly distinct in personality, perfectly one in nature.” “ The Catholics believe that the Holy Ghost, the third person of the blessed Trinity, proceeds from the Father artd the Son, and is equally God with them.”

The first article of tfye Augsburgh Confession professes expressly to be a declaration of the Nicene Creed, in relation to God, and it never was understood to contain qny point or doctrine, variant from the established belief of the Church of Rome on that subject.

The Protestant Episcopal Church in Great Britain and the United States, adopts the Nicene Creed in Article Eighth, and in its order for Daily Morning Prayer; and the first of the Thirty-Nine Articles declares its “ Faith in the Holy Trinity'' in these words:

“ There is but one living and true God, everlasting, without body, parts, or passions, of infinite power, wisdom, and goodness ; the Maker and Preserver of all things, both visible and invisible. And in unity of this Godhead, there be three persons, of one substance, power, and eternity; the Father, the Son, and the Holy Ghost.”

And Article 5th, Of the Holy Ghost, is thus; “ The Holy Ghost, proceeding from the Father and the Son, is of one Substance, Majesty and Glory with the Father and the Son, very and eternal God.”

The Dutch Reformed Church receives as its Creed, the Confession of Faith as revised in the National Synod of the Council of Dort, in 1618 and 1619, with the Heidelberg Catechism, and the Canons of Dort on the famous five points.

Article 1st of the Confession revised at Dordrecht, asserts, “ that there is only one simple and spiritual being, which we call God; and that he is eternal, incomprehensible, invisible, immutable, infinite, almighty, perfectly wise, just, good, and the overflowing fountain of all good.”

Article 8th is entitled, “ That God is one in. essence, yet nevertheless distinguished in three persons;” and it asserts that God is one single essence in which are three persons, really, truly and eternally distinct, according to their incommunicable properties, namely the Father, the Son, and the Holy Ghost.

After asseverating and illustrating their distinctness in emphatic terms, it concludes, “ For they are all three co.eternal and co-essential. There is neither first nor last, for they are all three one in truth, in power, in goodness and in mercy.”

Article 9 contains the proofs of the 8th article. Article 10 declares the glory and divinity of Jesus Christ, and his equality with the Father in all things ; and article 12 treats of the Holy Ghost, and declares that the Holy Ghost is true and eternal God, and of one and the same essence, majesty and glory with the Father and the Son.

The doctrinal system of the German Reformed Church is contained in the Heidelberg Catechism.

In its explication of the Apostles Creed, (which this, and I believe all Trinitarian churches adopt,) the Catechism teaches that God has revealed himself in his word as but one divine essence, and that the three distinct persons, Father, Son and Holy Ghost are the one only true and eternal God. It then sets forth the distinct offices of each, and re-asserts their unity, co-eternity and glory.

The Presbyterian family of Christians, in its various branches of the Presbyterian Church of the old and new schools, Associate Presbyterians, Associate Reformed Church, Church of Scotland, and many others, together with the Congregationalists, adopt the Westminster Confession of Faith.

The 2d Chapter of the Westminster Confession treats “ Of God and the Holy Trinity,” arid it first sets forth that there is but one only living and true God, and states his attributes and perfections at large. Section 3, is in these words: “In unity of the Godhead there be three persons of one substance, power and eternity; God the Father, God the Son, and God the Holy Ghost. The Father is of none, neither begotten nor proceeding; the Son is eternally begotten of the Father; the Holy Ghost eternally proceeding from the Father and the Son.” Chapter 4th, Of creation, declares that God, the Father# Son and Holy Ghost, created the world. Chapter 8th, is Of Christ the Mediator, and section 2d declares that he is very and eternal God, of one substance and equal with the Father.

And in the Larger Catechism of Westminster, which is also a standard with the Presbyterians, the answer to Question 9th is thus: “ There be three persons in the Godhead, the Father, the Son and the Holy Ghost; and these three are one true eternal God, the same in substance, equal in power and glory, although distinguished by their personal properties.”

The Cumberland Presbyterians adopted a Confession of Faith and Catechism, founded on those of Westminster, which assert the doctrine that God is an infinite, eternal and unchangeable spirit, existing mysteriously in three persons, the three being equal in power and glory, &c,, and that Jesus Christ is both God and man in one person. (Rupp’s History, 218.)

The Articles of Faith of that large body of Christians in this country, the Methodists, contain the following:

“Article I. Of Faith in the Holy Trinity. There is but one living and true God, everlasting, without body or parts, of infinite power, wisdom and goodness, the maker and preserver of all things visible and invisible. And in unity of this Godhead there are three persons, of one substance, power and eternity: the Father, the Son, and the Holy Ghost.” The second and third articles relate to our Saviour. The fourth is thus expressed. “IY. Of the Holy Ghost. The Holy Ghost, proceeding from the Father and the Son, is of one substance, majesty and glory with the Father and the Son, very and eternal God.” The “ True Wesleyan Methodist Church ” hold substantially the same doctriné, and in respect of the Holy Trinity, in the same language.

The Greek, Russian Greek, and Armenian churches, believe in the doctrine of the Trinity, as held by the Protestant and Romish churches, save that they maintain that the Holy Ghost proceeds from the Father only,- and not from the Father and the Son.

It was said' at the hearing, by the learned counsel who opened for the defendants, that the term “ person,” in reference to the Trinity,- was never known or used before the fourth century. That counsel was so full and accurate in his historical as well as theological knowledge, that I did not venture to question this position until after a careful inquiry. • I am satisfied, however, that it is erroneous, and that the term was used, and the expression Trinity also (or words which can only be thus interpreted,) as early as the second century.

Polycarp, Bishop of Smyrna, the disciple of St. John, died about A. D. 168. (Guerike Kirchen Geschite, 73.) His doxology was addressed to the whole Trinity.(a)

And Justin Martyr, in the middle of the same century, (Dr. Priestley says Justin wrote about A. D. 140,) declared that the worship of the Christians was of the whole Trinity. (Justin Martyr, 1st Apol. 56, 60; DM. de Tryph. pp. 358 and 265,232-3. Also, Lactantius, Instit. Divinorum, lib. 4, De vera sap. ch. 4, also ch. 29.) Indeed, the great Unitarian, Dr. Priestley, concedes that the writers who have come down to us, if we omit the author of the Clementines, were all, without exception, from Justin Martyr to Athanasius, what he calls “ Platonizing” Trinitarians.(b)

One of the defendants witnesses mentioned the Free Will Baptists as an instance of an orthodox denomination, (to use his language,) which did not express their belief of three persons in the Godhead. I think that the witness erréd. In the article on that sect in Rupp’s History 65, written by the Rev. Mr. Burbank, a Free Will Baptist, the articles of their faith are set forth, and they expressly state the existence of three persons in the Deity.

Second. I will now consult the standards of denominations who do not believe in the doctrine of the Trinity.

The Unitarians, or Unitarian Congregationalists, believe that Jesus Christ is a distinct being from G'od, derived from him and sent for the purpose of the redemption of fallen man; not before existing, subordinate to' God. That the Father alone is entitled to be called God,' aff'd alone possesses the attribute of infinity. They hold the supremacy of the Father, and the inferior nature of the Son. That the idea that Jesus was the infinite and supreme God, is irreconcileable with the language of the new testament.' Some Unitarians, however, hold that Christ pre-existed his coming upon earth: The Unitarians object to the doctrine of three persons in one God,' on adcount of its intrinsic incredibility, and because acdording to their conception of it,- it teaches that there are three beings, three minds, three conscious agents, and thus it makes three Gods, and to assert that these three are one, is a contradiction: And they generally do not think it lawful, directly to address Christ in prayer.

They profess to believe iff the divinity of Christ, and they regard him as one with God in affection, will and purpose.'

By the Holy Spirit, Unitarians suppose is meant, not a person, but arr influence. See the Article on Unitarians, in Rupp’s History, 704 to 710; written by the' Rev. Mr. Lamson," an old and well known minister of that church.

Mr. Adam in his View, &c., vol. 2, p. 159, says, that the Unitarians in England, have totally divested Christ of his Divinity, and" maintain that he had no existence before he was conceived'by the Virgin' Mary;' and that the Holy Ghost is merely a figurative expression,'to den'ote the power or energy of God.

The Universalists entertain' views similar to the English Unitarians, in relation to God, Christ and the Holy Ghost. Rupp's History, 727. 730. 732. The second article of their Profession of Faith, adopted at the General Convention of the New-England States in 1803, is as follows ; “ We believe there is one God whose nature is love; revealed in one Lord Jesus Christ, by one Holy Spirit! of Grace, who will finally restore the whole family of mankind to holiness and happiness.”

The “ Christians,” or Christian Connection, are Unitarian in their belief; holding however that Jesus Christ is divine, and generally, that he existed with the father, before all worlds. (Rupp's History, 169; Millard's True Messiah.)

The Friends, (Hicksite Quakers,) avow that they reject the common doctrines of the Trinity, as contrary to reason and revelation. Yet they believe in the divinity of Christ.

The heresy of Arius,' so destructive to'the church of Christ in the fourth century, the cause of the first- bloody persecution by Christians of their own brethren, and the subject of most bitter controversy until the present day, consisted in the doctrine that Christ, although he was God,- was of a different essence, and inferior to the Father even as to his Deity; and that the Holy Ghost was not God. That Christ was created prior to all other beings, but denying that he was eternal.

Another distinguished tenet on this subject, was that of Laelius and Faustus Socinius, who argued that Christ was a mere human being, but upon his death was advanced by God to the government of the created universe, and became the proper object of religious worship.

Many of those who deny the doctrine of the Trinity at this day, follow in part the views of Socinius and in part those of Arius; and among the Unitarians, some are S'ocinians and others nearly allied to the High Arians in belief.

I will not pursue the labyrinth of the doctrines, and shadés of belief, on this holy mystery, -which have filled-' innumerable books and treatises for centuries past; but will now attempt to compare the Franckean creed with the tenets professed by ninety-nine hundredths-of the Christian world.

It is a circumstance which weighs against the Franckean declaration, that in respect of the Holy- Trinity, they should have -departed from the plain terms of the great Lutheran standard, if as they allege, they believe the doctrine of the Trinity as set forth in that standard. If the Augsburgh Confession on the subjects of original sin, baptism and the Lord’s Supper, was different from their interpretation of scripture; what need was there, in order to express their dissent on those points, that they should write a new creed on the subject of the Trinity, discarding an article to which they now declare their substantial assent ?

Connecting this needless deviation from the time-honored symbol of their church, (that memorial of the Reformation which every true Protestant reverences, although he may not subscribe to all its doctrines,) with the palpable Unitarianism of the Franckean declaration of faith adopted in 1837; the new declaration in 1838 merits close scrutiny; and if it turns out to be in any degree evasive or silent upon any pointed feature of the doctrine of the Trinity, it must receive our condemnation as an intentional deviation from the Augsburgh Confession in that behalf.

In every creed, or exposition of belief, of the large bodies of known Trinitarians, we find one point which is most fully expressed and declared, viz., that in the .one living and true God, there are three distinct persons. The word person, is used to express, that individuality, and distinction of one from the other, which constitutes the sublime and confessedly incomprehensible mystery, which Trinitarians believe. They assign to each distinct personality, agency and divine offices ; while they attribute to each and to all equally and alike, in one essence, the great functions, powers and perfections of the Triune God.

The Canons of the Synod of Dort illustrate the distinction of persons as well as their unity, by saying that “ the Father is not the Son, nor the Son the Father, and likewise the Holy Ghost is neither the Father nor tbe Son. Nevertheless these persons thus distinguished are not divided nor intermixed: For the Father hath not assumed the flesh, nor hath the Holy Ghost, but the Son only. The Father hath never been without the Son, or without his Holy Ghost.” (Article 8th.) Here is a definite proposition in regard to this great subject, which is capable of being expressed in the plainest and most simple terms, and which as we have seen, is most emphatically and distinctly expressed in thé first article of the Augsburgh Confession of Faith.

After a most careful and anxious consideration of the Franckean Declaration of 1838, I am compelled to say that it does not to my understanding declare or express, that there are three distinct persons in the Godhead. It indeed asserts in section 2d, that “ in this one God, there is a distinction of three, revealed in the Scriptures as the Father, the Son and the Holy Ghostbut the inquiry at once occurs, a distinction of three what ? Does it mean a distinction of thrpe names 1 That was the obnoxious feature in the declaration of 1837. Does it me.an three persons, three individualities ? If so, why were not those words inserted ? The identical words in. which this solemn truth had been expressed inthe Augsburgh Confession, then lying open before them, and in which it had been maintained in their Church for three centuries? Does it mean three distinct characters, relations or revelations, of tjhe only one true God ? It is perfectly consistent with that meaning, so far as the express terms reach. Let us assume that the latent meaning really was, that God is only one being, revealed in the Scriptures in three distinct characters or relations. The residue of the section asserts, that these three relations are “ inseparably connected with one another, possessing the same essence, and equal and alike immutable in all natural and moral perfections.” All this follows of course, if they are three relations or characters of one divine being. It may be said to be a very unnecessary outlay of words to express it. But all these words do not necessarily express any greater meaning. Then take the 4th section of the Franckean declaration, which relates to Jesus Christ and Redemption, and read it with the hypothesis that he is but a relation or character of the one living God as revealed in the Scriptures, and it is consistent with that hypothesis. And so of section 7, “ Of the Holy Ghost.” As virtues or emanations of the Deity, Jesus Christ could, on this assumption, be manifested in the flesh, ascend into heaven, and be exalted at God’s right hand, to intercede for our race; and the Holy Ghost more especially, might be “ given to quicken and renew the hearts of men.”

Undoubtedly, these clauses are all perfectly consistent with the Trinitarian construction of the Article. And if the word “persons” had been inserted, they would, in so much at least, have harmonized with the Augsburgh Confession. In short, it may be conceded that the Franckean Article is capable of a Trinitarian construction, and still the case will not be relieved. It then becomes merely equivocal, accommodating itself to the consciences of both Trinitarians and Unitarians. In order to avoid the conviction that it is a departure from the faith of the Lutheran founders, it should have propounded the doctrine of the Trinity in plain and explicit language, which construction could not pervert or circumvent. And I cannot forbear connecting the omission of such language with the obviously defective declaration of 1837, and am thus directly led to the conclusion that the Articles of 1838 were not intended to declare or express that there are three individuals or persons in the Godhead.

Jt would seem that like the “ Disciples of Christ,” better known as Campbellites, the Franckean Lutherans were unwilling “ to use those scholastic terms and phrases which the wisdom of men” has provided; and perhaps will say with that sect, that “ although they use not the words Trinity, Triune, &c., they receive every thing whiph the Seripture affirms of the Father, the Son, and the Holy Spirit, giving to every expression its full and obvious meaning.” This is all well iq establishing a new or better sect. But when a church or synod of Lutherans or Presbyterians, brought up amongst ancient standards which express in the strongest terms the doctrine of the Trinity, announce that they have adopted such a declaration of their faith, carefully eschewing these terms of mere human learning, and such declaration is vague, reserved and inexplicit on this point, what can we infer, except that such church or synod no longer believe or mean to profess the doctrine as contained in the old standards ?

And when, as we are informed by the Franckean ministers, this article of faith was amended in 1838, and published in its present form, for the express purpose of stating the doctrine of the Trinity more fully and explicitly than it was stated in 1837, is it possible to believe that the framers of the amended article, intended to profess or declare that doctrine in the full and unequivocal manner in which it is set forth in the Augsburgh Confession ? Is not the difference the more marked and emphatic, when we consider the two successive efforts of the Franckean Synod to make their belief plain and explicit?

The Franckeans appear to have patterned, in some respects, after a new sect denominating itself “ The Church of God,” which sprung out of the German Reformed Church in Pennsylvania, and first assumed a distinct organization in 1830. This sect set out to establish “ spiritual, free and independent churches, consisting of believers or Christians only, without any human name, or creed, or ordinances or laws.” I quote from their founder and principal minister, the Rev. John Winebrenner, who, notwithstanding they were to have no creed or laws, furnishes for publication “ The Faith and Practice of the Church of God,” in no less than 27 articles or heads, which he says is an outline of their avowed principles and practice. The 18th and 19th of these articles are against the manufacture, traffic and use of ardent spirits as a beverage, and against slavery as impolitic and unchristian ; therein stopping far short of the Franckean declaration. They renounce the doctrine of unconditional election and reprobation, and thus depart from their German Reformed standards. Their article as to God is in these words: “ She” (the Church of God) “ believes in one Supreme God, consisting .of Father, Sop, and Holy Spirit, and that these three are co-equal and co-eternal.” And there is nothing in the separate articles relative to Jesus Christ or the Holy Ghost, which award to them either Divinity, powernor glory.

This creed, coming from one who once professed the Canons of Dort or the Heidelbergh Catechism, appears exceedingly barren and unsatisfactory in reference to the doctrine of the Trinity in Unity, if we are to understand from it that the writer believes that doctrine.

The words “ consisting of,” and “ these three,” go farther in this respect than the Franckean Declaration. Consisting of is used by many theologians as synonymous with “ composed of,” or “ having being concurrently and in that sense would, in connection with “ these three,” go much farther to express a distinct personality of three in the Godhead.

The similarity to which I have alluded, and the apparent reserve in expression in the two creeds, is certainly a coincidence which deserves attention.

There is another defect, which it is alleged, distinguishes the Franckean declaration in respect of Jesus Christ and the Holy Ghost. The Augsburgh Confession declares that the three persons in the Divine Being called God, are equally powerful, equally eternal; and that all three are one Divine Being of Unmeasurable power, Avisdom and goodness.

The' doctrinal standards of the other Trinitarian Christians which I have cited, affirm the same truth in distinct, and some of them in very emphatic terms.

Let us assume, for this part of the argument, that the Franchean declaration does assert the existence of three persons in the one true God. Does it assert that the Son and Holy Ghost are equally powerful, and equally eternal with th e Father ?

It will not suffice to answer this by saying that as they are one with the Father, they must necessarily be equally powerful. Luther, Melanchthon and the German Protestants in 1530,- deemed it essential to declare this equality in express terms. The principal Christian denominations, adopting the Trinity, have all deemed it necessary. Accordingly the defendants insist that the Article in question, does avow and express this doctrine. They find it in the words, “ equal and alike infinite and immutable in all natural and moral perfectionsJ’ The first words, “ equal and alike infinite,” are limited 'to those which succeed, and qualified by them. The whole point therefore turns upon the meaning of “ natural and moral perfections.”

The Campbellites would have rejected these words at once, as savoring too much of human wisdom.

To illustrate and enforce their meaning, the defendants read from the Theological Class Book, by W. Cogswell, a small publication issued at Boston in 1840, in the form of question and answer. This book divides God’s perfections into Natural and Moral; and says that the natural perfections of God are “eternity, immutability, omniscience, omnipotence, omnipresence, independence, unity,” and the moral perfections of God are, “goodness,- wisdom, holiness, justice, mercy and truth.”

It cannot be denied, that if the Franckean declaration is to be construed by this book, it does declare the equality in power of the Son and Spirit with the Father, and that they are equally eternal. As I could not find these words defined thus, in any other book, I have taken much pains to learn the standing of the Class Book. On inquiring of some of the professors in our theological seminaries, and several doctors of divinity,-1 did not meet with one who had ever heard of the work. This fact/ and its standing alone,- so fa'r as my researches have extended, induce me to allow to it no further influence than I would to any biblical critic, or professed lexicographer/ whose reputation and accuracy has not received the sanction' of the literary and scientific world. And it imposes upon me the unpleasant duty of criticising the words in question:

The division of G'od’s perfections into natural and moral, is manifestly for the purpose of illustrating the subject by our human nature. Because, strictly speaking, God’s moral perfections, as defined by the defendants, are as much his nature, and as natural to-him/as any of those which they call natural. All his perfections and his attributes are his natural attributes and perfections.

We are therefore to ascertain God’s moral and natural perfections, by comparison or contrast with those of mankind, and we cannot understand by the term natural perfection, when applied to the Deity, any thing which would not be esteemed a natural perfection,- when applied to a man. And the point is then distinctly presented, is power a natural perfection of man ?

It at once occurs to every mind, that men possess different kinds of power; they have physical power, mental or intellectual power, and moral power which last embraces of itself a great field of influence. Some have one of these, and not the others. Some possess one or more, or the whole, in an infinite diversity of extent and combination. The physical power may be termed natural; the moral power never can be so termed; and the intellectual is more an acquired, than a natural perfection. It is evident, that to say of power, that it is a natural perfection, when applied to a human being, is a confusion of ideas. It conveys no clear or definite object to the mind.

Is the idea any more clear or definite when applied to the Supreme Being ? We all agree that power is an attribute of God. He is omnipotent. But when the defendants assert that God has all natural perfections, without further illustration, would any person who had not studied W. Cogswell’s Class Book, understand by it, that they intended to declare that he was omnipotent?

If the word 11perfections” had stood alone, the meaning would have been more intelligible, at least in respect of the equality of the three persons constituting the Godhead, as it is a word sometimes used to express an attribute of God. But this equality is limited to natural and moral perfections, and we are assured that omnipotence is one of the former. So if the expression were, “ all divine perfections,” to my mind the language would have conveyed much more than the article now does. The distinction taken in the article refers us to our ideas of human nature for an explication of the meaning of the words. On recurring to those ideas, we find a third class of perfections, the intellectual; and we also find that power is deducible from each class, and all the classes combined.

I must presume that the Franckean Lutherans, when putting forth a declaration of faith for the information of their own people and the world, the unlettered as well as the learned, intended to use language in no technical or professional sense, but in its ordinary and every day meaning.

Receiving it in that sense, although I speak with great diffidence on this point, I cannot understand by the Article in question, that the defendants believe the Son and the Holy Ghost to be equally powerful with God the Father. And when I contrast the language of this Article, with the positive and explicit language used by other Christian denominations, and the pointed words of the Augsburgh Confession; I cannot help expressing my surprise that the Franckean Lutherans should have failed to use similar language, if they really believed in the doctrine indicated thereby.

The doubt whether they do so believe, is strengthened by a consideration of the subsequent articles relative to Jesus Christ and the Holy Ghost. The one affirms no attribute of power in the Son of God, nor the. other in the Holy Ghost. And these articles too, stand out in strong relief, when compared with the similar articles of faith in the standards of other churches.

I have examined this point at great length, because I desired to avoid expressing any opinion upon the fact that the defendants claiming to be Evangelical Lutherans, have established a new declaration of faith, which is alleged to be a departure or secession from their church. Conceding that the mere reforming of the language of the old standards, or wholly remodelling them, is unobjectionable; there can be no doubt of the secession when the change extends to essential doctrines.

The testimony of other Franckeans, that they believe in the Trinity, and so understand the declaration of their faith, is unavailing to the defendants. They must stand or fall by the declaration itself, the solemn act by which they presented themselves to the Christian world as a new synod, more evangelical and scriptural than their brethren who remained behind. In that declaration they have set forth what they deemed to be “esssential doctrines of the bible, while they avoided stating those points which they did not believe as set forth in the Augsburgh Confession.” {Mr. Lawyer’s testimony.) They do not now repudiate it, but claim a construction of it which I am unable to derive from its language.

Next. In regard to the divinity of Jesus Christ, and the alleged omission in that behalf in the defendants declaration.

Article 3d of the Augsburgh Confession is in these words, as translated by Dr. Lochman.

a Of the Son of God." “ We also teach that God-the Son, became man, born of the virgin Mary ; and that the two natures, divine and human, inseparably united together in one person, are one Christ, who is true God and man, who was truly bom, who was crucified, dead and buried 5 that he was a sacrifice, not only for original sin, but also for all other sins, and reconciled the wrath of God. Also that the same Christ descended into hell, truly arose from the dead on the third day; that he ascended into heaven, and sitteth at the right hand of God; that he eternally rules over all his creatures and governs; that he sanctifies, strengthens and comforts, through his Holy Spirit, all who believe in him, and gives unto them life and various gifts and blessings, and that he defends and protects them against the devil and against sin. Also that the same Lord Christ will publicly come to judge the living and the dead.”

The fourth section of the Declaration of Faith of the Franckean Synod, is as follows: “ Jesus Christ and Redemption.” 4. (We believe,) “That Jesus Christ, the only begotten Son of God, in the fulness of time, was manifested in the flesh, and is the only Redeemer—that he was crucified, dead and buried— that he arose from the dead, ascended into heaven, and is now exalted at God’s right hand, to make intercession for the whole human race.”

And section 11th, “ Final Judgment and Future State.” 11. (We believe,) “ That Jesus Christ will come the second time, when he will judge the world in righteousness; that there will be a resurrection of the dead, both of the just and unjust, and that he will receive the righteous into life eternal, but the wicked will be sent into endless punishment.”

It is not claimed by the defendants that the sections just quoted, affirm the equality of Christ with God the Father, although the fourth declares his divinity. They however contend that his equality is fully expressed and declared in the second section, “ Of God and Creation and in their answer they allege that Mr. Wieting has always taught and preached the doctrine of the equality of Jesus Christ with the “Father in its fullest extent, and his preaching has been so received, and approved of by the members of the two churches in question.

I have gone so fully into this subject in speaking of the Trinity, that it is unnecessary to enlarge upon it. It is involved in the doctrine of the Trinity. The belief in the divinity of the Saviour is not any mark of a belief in his equality with God the Father. All Socinians, and most of the Unitarians believe in Christ’s divinity, and could subscribe to his attributes as set forth in both the 4th and 11th sections of the Franckean Declaration. Therefore, unless the second section proclaims the equality of Jesus Christ with the Father, it is not to be found alleged in their creed.

My conclusion upon this has been already stated. The section fails, in my humble judgment, to convey the idea distinctly that there are three persons in God, all three one Divine Being; and even if that difficulty were obviated, it does not declare clearly or explicitly, that the Son and the Holy Ghost, are equally powerful with God the Father.

The first article of the Augsburgh Confession is positive in this respect; and the various creeds of Trinitarians from which I have quoted, are equally direct and explicit.

III. The remaining ground upon which the complainants insist that they have shown an essential difference between the Augsburgh Confession, and the declaration of the Franckean Synod, is in reference to original or inherited sin.

The second article of the Augsburgh Confession is as follows :

“ Of Original or Inherited Sin.” “ We teach that after the fall of Adam, all men, who are naturally born, are conceived and bom in sin; that is, that they are all, from their infancy, full of bad desires and dispositions, and can have no true fear of God, nor faith in God, by nature; and that this innate disease and inherited sin, is really to be accounted sin and condemneth all who are not bom again of water and the Holy Ghost.”

The third section of the Franckean Declaration of Faith, is in these words, viz. “ Primitive State of Man and his Apostacy.”—3. (We believe,) “ That man was created in the image of God, free from sin and every moral imperfection ; that he fell by disobedience from this state, and became morally depraved in his nature, and that in consequence of this sin, he transmitted his moral pollution and sinful propensities to all his posterity.”

Section 5.—“ Of the way of Salvation and the Atonement,” it is true, declares “ that those only who repent and believe in the Lord Jesus Christ will be saved.”

The difference between the two creeds on this point is nevertheless, too manifest to require extended remark. The Augsburgh Confession declares that the sin inherited from our first parents, is really to be accounted sin, and condemneth all. The Franckean declaration declares nothing of the kind. The answer does not admit or deny the difference, but the defendants counsel did not dispute it at the hearing. One of their two clerical witnesses, testified that it was a doctrine of the Franckeans that no person is punished for original sin alone. The other said, that in every sense of the phrase, original sin, it is not a cardinal doctrine among Lutherans, that original sin condemneth all who are not bom of water and the holy ghost. Both say that as expressed in the second article of the Augsburgh Confession, the doctrine is not held by a great majority of the Lutherans in the United States.

The grounds of defence, therefore, on this point are, that the doctrine itself is not essential or cardinal; and that it has been abandoned by the Lutherans generally.

1. As to its being an essential and vital article in the Confession of Faith presented at Augsburgh, I can entertain no doubt. It stands next in order to the declaration of the Protestants as to God, the Creator of all. It is the foundation of the great atonement, of its necessity; in short, of the Christian religion itself; and in every creed and declaration of Christian doctrines, the dogma of human depravity, by the fall of our first parents, in some form, occupies a prominent position, and is made the basis of the belief in Christ’s coming upon earth, and man’s redemption. From the decrees of the Council of Trent, to the declared belief of the Universalist, this doctrine is made essential and cardinal. The total depravity of mankind in consequence of the fait, was one of the Five Points established by the Synod of Dort, on account of the disbelief of which the Arminians were persecuted; and which points, to this day are of commanding influence in the creeds of Calvinism. And in reference to the tenets of other denominations, the Lutheran creed in the Augsburgh Confession, that inherited sin is really to be accounted sin, and of itself condemneth all mankind, is an essential doctrine, and not a difference of opinion on a minor particular, or a minutia, within the acknowledged leniency of the Lutheran Church in respect to human creeds.

2. In order to derive any benefit from the alleged abandonment by the Lutherans of the doctrine of Inherited Sin as contained in the second article of the Augsburgh Confession, the defendants must establish the changed belief to have existed in these churches when they were endowed with the temporalities in controversy. The history of the Augsburgh Confession with which I set out, shows that no such abandonment had taken place at that period. The testimony respecting it adduced by the defendants, and the publications on the subject, are far from establishing that the Lutherans generally in this country, at the present day, do not believe that article ; although they undoubtedly show a wide latitude of construction among their theologians, in regard to human depravity by nature and its consequences. But I have no evidence before me that any of the donors of the property in question dissented expressly or by construction, from the second article of the Confession, or that they intended their gifts for the support or teaching of a modified or different doctrine.

The complainants have, therefore, in my opinion, established that the defendants have adopted a rule or standard of faith which is different from the Augsburgh Confession of Faith, and the other standards of faith and doctrine of the Evangelical Lutheran Church, as held and maintained by the founders of the two churches in controversy; and that they have diverted the churches and church property from the purposes and objects for which they were erected and bestowed, and perverted them ' to the preaching, teaching, and support of an essentially different faith and doctrine, in violation of their duty as trustees of that property and those edifices.

IY. There is another ground which forms an important portion of the complainant’s bill, and which relates solely to the government and discipline of these churches, and the severance of their connection with the Hartwick Synod.

The government of the Lutheran Church in Europe, differs in different countries. In Germany, the sovereign or rulers of the state appoint the consistories, or highest councils of the church. Ordinations are made by the superintendent, appointed by the civil authority, and hé usually presides in the consistory ; or by any clergyman commissioned for that purpose by the civil government. In Sweden and Norway, Episcopacy still prevails, and also, in a modified form, in Denmark.

In this country, the Lutherans, relieved from the shackles of state control, adopted a parity of ministers, and the free voluntary convention of synods. How far the consistories in Europe, and the synods in the United States prior to the present generation, were judicatories, in the sense claimed by the complainants, I have not been enabled to satisfy myself from the testimony of the witnesses or from books.

It is, however, undeniable, that the early Lutherans in this country regarded an ordained ministry as an essential part of their church, and that no different opinion on this point has ever been promulged. They looked to Germany for pastoral aid, and from the arrival of the zealous and intellectual Muhlenberg, the pupil of Francke, until this time, they have recognized none but regularly ordained or licensed ministers. This, of itself, without reference to judicatories, or appellate jurisdiction, exhibits the absolute necessity of a government by synod, consistory, or ministerium; a union of ministers of their church, for the purpose at least of regulating the admission and licensure of preachers of the gospel. The Franckean constitution itself contains full provisions for continuing an ordained ministry in this mode. Therefore, although these churches in Sharon were, in 1789, attached to no synod or ministerium, there can be no doubt that the pious donors of the land in question, fully expected and intended that the churches should unite with and form a part of such an ecclesiastical body, whenever their convenience and the growth of the country would permit it to be accomplished. And we are bound to infer, that a synod connection was as much within the intention of the donors, as the preaching of the Word by an ordained minister.(a)

The subsequent connection formed with the New-York Ministerium, was thus the performance of a legitimate duty by those who were then clothed with the administration of these churches. The union of the same churches with others, in forming the Hartwick Synod, was, so far as it appears, an unexceptionable act, further carrying out the intention of the donors, with greater convenience and advantage to the churches.

Whether the connection of this synod with the General Synod of the United States, with appellate powers of discipline, was also proper, I am not prepared to say. Without those powers, I perceive no objection to it. Without reference to that question, the Hartwick Synod including these churches, adopted the Doctrine and Formula of the General Synod, and thus made its discipline and government, as adapted to local synods, a part of the system of the Hartwick Synod, to the benefits of which the complainants, as members of these churches, were entitled.

This Formula provides the series of judicatories, as set forth in the bill of complaint, and Lochman confirms their existence to the extent of the local synods.

The inquiry remains, whether this synodical connection was indissoluble without the consent of all the parties on both sides; or was separable by the act of a majority of those entitled to a voice in the government of the two churches, against the wishes of the minority, and without the consent of the other constituent members of the synod.

The decision of the Chancellor in the ■ German Reformed Church case, Gable v. Miller, before cited, appears to establish that the attempt of the defendants to cast off the authority of the Hartwick Synod, was a departure from their duty. And the founders of the Franckean Synod seem to have entertained the same opinion of such a secession ; for they make it irregular for any minister or church to withdraw from the synod, without a regular dismission therefrom. (Article 6th, section 2d.)

I prefer, however, to rest my conclusion on the more important points relating to the faith and doctrine of these churches.

On these points, the defendants are convicted of a violation of their trust. It is true, they called witnesses to prove that there was no difference in the preaching and teaching of Mr. Wieting in these churches from that pursued by his predecessors. So in Gable v. Miller, it was said that the Lutheran clergymen employed in that Reformed Church, instructed the church and people from the Heidelberg Catechism. The Chancellor, in his very learned and conclusive judgment in that case, effectually exposed! the fallacy of this ground of defence.(a)

The courts in their jurisdiction over these religious trusts, do not interfere with the right which every man has to interpret the word of Cod according tó his view of its plain import. They fetter no' man’s conscience, they bind no one to the dogmas of a creéd, ancient or modem. The defendants by the decree which I am required to make, are not restrained from believing or rejecting, as much or as little, of the Augsburgh Confession of Faith, as they deem reasonable or proper. If they consider it antiquated, obsolete,- or contrary to Scripture, they are at entire liberty to preach" and to hear accordingly. But the law does not permit them to use the property of others, to sustain their views. They are trustees of this fund; and neither justice or honesty will tolerate them in taking the fund given by others, (their ancestors it may be, but given for the support of the doctrinés of that Confession,) and using it to attack and destroy those doctrines.

Fifthly. It remains for me to' ihquire whether the complainants are entitled to any relief in this suit, by reason of the defendants breach of trust, and the nature and extent of such relief.

The section of the Revised Statutes which excludes religious corporations from the provisions therein enacted in the Article relative to Proceedings agairist Corporations in Equity, (2 R. S. 466, § 57,) does not divest this court of its common law jurisdiction over the subject of charities. The doubt which was raised in regard to the existence of the jurisdiction of the court of chancery over charities prior to the statute of Charitable Uses, 43 Elizabeth, ch. 4, by the dictum of Lord Loughborough, in the Attorney- General v. Bowyer, (3 Ves. Jr. 726,) has been most effectually dispelled by subsequent investigations and decisions. The publications of the English Record Commission, have thrown a flood of light upon this question. In the Calendars of the Proceedings in Chancery in the reign of Queen Elizabeth, containing also examples of proceedings in that court from the time of Richard 2d, the instances of bills filed for relief in such cases are numerous. Two of these in the reign of Henry 6th, (who died in 1460,) are to be found in vol. 1st, page lvi. and lvii. and two in Edward 4th, in vol. 1st, page lxii, and vol. 2d, page xliv. And distributed throughout the three volumes, there are nearly fifty bills filed.for relief, relative to charitable uses during the reign of Elizabeth, before the passage of the Act of 43 Eliz. in relation to that subject. See them from vol. 1st, page 81, (a charity which was before the same court again after the lapse of 260 years,- in 1 Mylne and Keen’s R. 376;) to vol. 3, page 319. There are also several reported cases of bills and decrees respecting charities made before the 43d Elizabeth. See Messenger v. Mayor &c. of Gloucester, (Tothill, 58, in 36 to 38th Henry 8th.) Parrott v. Paulet, (Carey, 103; 20 Eliz.;) Elmer v. Scott, (24 Eliz.; Practice of the Court of Chancery Unfolded, or Choice Cases in Chancery, 155;) and several cases- contained in Duke’s Charitable Uses, pages 131, 136, 163, 360, 361. Of the numerous opinions and decisions on the point, conflicting with that of Lord Loughborough, I will refer to Lord Hardwicke in Attorney General v. Brereton, (2 Ves. Sen. 425,) and in The Same v. Middleton, (2 ibid. 327; Lord Northington in The Same v. Tancred, (1 Eden’s R. 10;) Lord Wilmot, in The Same v. Downing, (Wilmot’s Opinions, 24;) Sir John Leach in The Same v. Brentwood School, (1 M. & K. 376;) Lord Redesdale, in Corporation of Ludlow v. Greenhouse, (1 Bligh, 61;) and finally, to the express decision of the House of Lords, and the concurring opinions of Lords Redesdale, Eldon, and Lyndhurst, in Attorney General v. Mayor of Dublin, (1 Bligh, 347.) And see Orphan Asylum v. M'Cartee, (9 Cowen, 440, per Jones, Chancellor;) Dutch Church v. Mott, (7 Paige’s R. 77, per Walworth, Chancellor;) and Vidal v. Girard’s Executors, in Supreme Court of U. S., January Term, 1844, per Curiam.(a)

Our first statute enabling churches and religious societies to become bodies corporate, passed April 6th, 1784, (1 Greenleaf’s Laws, N. Y. 71,) sets forth in a preamble the evils to remedy which it was enacted; and some of these would be greater than they were before, if equity retained no jurisdiction over the trusts vested in such corporations.

In Lawyer v. Cipperly, (7 Paige’s R. 281,) the Chancellor virtually assents to the power of this court to correct a breach of trust like the one in question, by removing the trustees from their office.

In his recent decree in Gable v. Miller, heretofore cited, he sustained the bill on similar grounds, and declared that the complainants who had been elected trustees, but by a minority of the church, were the true and legitimate board of trustees, and that the defendants who had introduced Lutheran ministers into a German Reformed Church, and were chosen trustees by a majority of the congregation, who approved that course, should deliver up the property in controversy to the complainants and no longer intermeddle with the same. The decree also provided for an account of the rents and income of the church property.

In the case of Lady Hewley’s Charity, the Vice-Chancellor of England made a decree to the effect that the defendants be removed from being trustees of the charities, and referring it to a master to appoint proper persons to be trustees in their room and to take an account of the rents and profits of the charity estates received by the defendants. (9 Clark & Fin. 373; 11 Simons, 592; 7 Lond. Jur. Rep. 783.)

This decree, as I have already mentioned, was affirmed by the Chancellor and the House of Lords. In that, case it is however to be observed, that the charities ryere not vested in any corporate body ; and the trustees therefore in respect of removal, stood upon the same footing as the ordinary trustees of an estate. My only difficulty on this head, is in reference to the mode and limitations of the selection of neyr trustees, where regularly the choice of trustees is vested in the cestui que trusts, and to be exercised by an election, and qn this point the views of the respective counsel are solicited on settling the decree. The decree will of course preyent any further perversion of the trust, even if any of the defendants, or their adherents, should continue in office, and so far there is no difficulty. But the trusts were designed to be actiye, and they should be vested in persons who will apply the property with diligence and fidelity to the pious uses for which it was bestowed. This may be secured by directing an election of trustees in the place of the defendants who are removed, by the respective congregations, under the direction of a master, excluding from such election those who have adhered to the defendants and the Franckean Synod. Or it may be competent to have a master of the court select trustees to officiate until the termination of the current year, and a regular election by the churches. And the decree may direct the trustees to employ a pastor who adheres to the Augsburgh Confession and the Hartwick Synod.

There must be a decree, removing from the office of trustees the defendants who held that office when the bill was filed, declaring that their offices are vacant, and that the complainant, Marcus Brown, is a trustee of St. John’s Church at Durlach. There must be a new appointment of trustees, and the defendants and their successors, and those claiming under them in the respective churches, must deliver up to Brown and the new trustees, all the real and personal estate of the two churches, and the books, papers, and records of the same. And they are to account for the rents, income, and profits of the property since the commencement of this suit. The defendants must be perpetually enjoined from interfering with the property, except in accordance with the decree, and from using or appropriating it for any different purpose.

The decree will declare that the temporalities in question are held by the two corporations in trust for the support of divine worship by an Evangelical Lutheran Church, and for the teaching of the doctrines of the Augsburgh Confession of Faith, and such other standards as were held and recognized by the Lutheran Church in this country, in the year 1799, and in connection with the Hartwick Synod of the Evangelical Lutheran Church, with such other provisions on this subject as will carry out the decision of the court.

The defendants must be charged with the costs of the suit.

The following decree was entered.

This cause having been duly brought to a bearing on th.e pleadings and proofs therein, and Samuel Stevens having been heard on the part of the complainants, and Henry Hamilton and Marcus T. Reynolds on the part of the defendants, and due deliberation being thereupon had, it is ordered, adjudged, and decreed, and this court, by virtue of the power and authority therein vested, doth order, adjudge, and decree, that the two church edifices or meeting houses mentioned in the bill of complaint in this cause, as having been erected and built by the members of the two religious societies in the bill mentioned, one of which was subsequently known by the corporate name of “ The Evangelical Lutheran Congregation of St. John’s Church at Durlach, in Sharon,” and the other of which \yas then a religious corporation, known by the corporate name of “ The Ministers and Trustees of the Lutheran Church in Rhinebeok,” in the county of Schoharie and state of New-York, were so erected and built by the members of said churches or congregations, as places of divine worship, by an Evangelical Lutheran Church, according to the principles,-doctrines, and tenets of said church, as established, expressed, and declared in and by the Augsburgh Confession of Faith, and for the purpose of having the faith and doctrines of the said Evangelical Lutheran Church, as expressed and declared in and by that confession, and no different faith or doctrine preached, taught, and inculcated therein, and that the real and personal estate mentioned in the said bill of complaint, as belonging to the said churches or congregations, and by them held in common, were obtained, bestowed, and given by the members of said churches, or congregations, and by other persons, for the sole and only purpose of having the same appropriated and applied to the support and maintenance of the preaching, teaching, and inculcating, in said church edifices, and to the members of said churches or congregations, the doctrines, tenets, and principles of the said Evangelical Lutheran Church, as established and declared in and by the said Augsburgh Confession of Faith, and that all and singular the said two church edifices, with their appurtenances, and the other temporalities of said two churches or congregations, ever since the incorporation of said churches or congregations, as mentioned in the said bill of complaint, have been and still are held by the said^two corporations herein before mentioned, in trust for the support of divine worship by an Evangelical Lutheran Church, and for the preaching, teaching, and inculcating the doctrines, tenets, and principles of such church, as established and declared in and by the said Augsburgh Confession of Faith, in said church edifices, and to the members and adherents of said churches or congregations; and for no different purpose whatever. And it is further ordered, adjudged, and decreed, that the declaration of faith established and promulgated by the Franckean Synod, and adopted by the defendants in this cause as their rule or standard of faith, and by them sought to be preached, taught, and inculcated in said two churches, and to the members thereof, as the true rule or standard of faith for said churches or congregations, is essentially different from the rule or standard of faith and doctrine established and declared by the said Augsburgh Confession of Faith, which was accepted and received by the members of the said two churches or congregations as their standard of faith and doctrine at the time of the erection of the said two church edifices, and the endowment of the said two societies or corporations before mentioned ; and that the use by the said defendants of the said two church edifices, and the other temporalities belonging to said two churches or congregations, for the purpose of preaching, teaching, and supporting the doctrines and tenets established and promulgated by the said Franckean Synod, as their Declaration, or Confession of Faith, was a diversion, of the said two churches and church property, from the purposes and objects for which they were originally intended, and a perversion of the same to the support and maintenance of a rule or standard of faith and doctrine essentially different from and fundamentally at variance with the rule or standard of faith and doctrine of the Evangelical Lutheran Church, established and declared by the said Augsburgh Confession of Faith; and that such diversion and perversion by the said defendants, of the temporalities of the said two churches or congregations, was and is a violation of the trust under and by virtue of which said temporalities were held, as herein before specified and declared, and a breach of duty on the part of the said defendants, as trustees thereof. And it is further ordered, adjudged, and decreed, that the act of the said defendants, in severing the said two churches or congregations from their connection with the .Hartwick Synod, and uniting them to the said Franckean Synod, as in the said bill of complaint mentioned, was wholly illegal and void, and the connection of said two churches or congregations with the said Franckean Synod is hereby dissolved. And it 'is further ordered, adjudged, and decreed, that Michael Marcley, John C. Shultz, and Marpus Borst, three of the defendants in the said bill of complaint named, who were the trustees of the said church or congregation, known by the corporate name of “ The Ministers and Trustees of the Lutheran Church in Rhinebeck,” and that John Wise and Asaph Roberts, two of the defendants in the said bill of complaint named, who were two of the trustees of the said church or congregation known by the corporate name of “ The Evangelical Lutheran Congregation of St. John’s Church at Durlach, in Sharon,” at the time of filing the bill of complaint in this cause, be and they hereby are removed from the office of trustees so held by them respectively, and the offices so held by them are hereby decreed and declared to be vacated by the said last named defendants. And it is further ordered, adjudged, and decreed, that the said defendant, Philip Wieting, and the other defendants in the said bill of complaint named as adhering to him and the said Franckean Synod, and their successors, and those claiming under them, deliver up to the trustees elected, or to be elected and chosen, and who shall be reported by the master, as hereinafter provided, all and singular, the church edifices, and real and personal estate and effects of the said two churches, or congregations and corporations, and the books, papers, and the records thereof. And it is further ordered, adjudged and decreed, that the said defendants render a just and true account of the yearly value of the use, rents, income and profits of the said real and personal estate of the said two churches or congregations so diverted by them, as hereinbefore stated, from the time of such diversion down to the time they shall deliver over the possession of the same' to the trustees elected, or to be elected and chosen, and reported as hereinafter provided, and pay the sum reported upon such account, with legal interest thereon, to said trustees, for the use of said two churches, or congregations and corporations respectively; and for the purpose of ascertaining the yearly value of the use, rents, income and profits of the said real and personal estate, and the amount due therefor ; it is hereby referred to one of the masters of this court, residing in any county in this state, to take and state an account thereof; and in taking and stating such account, the said master is to charge interest as shall be just; and on the coming in and confirmation of said master’s report, the amount reported to be due for the use, rents and income of the said property, together with interest thereon from the date of the said report, may be collected from the said defendants (except the said corporations) by execution, according to the course and practice of this court; and it being suggested to the court, that the complainants, and the other members of the said two churches and congregations, who adhered with them to the Hartwick Synod, and the said Augsburgh Confession of Faith, have kept up a corporate organization in the said two churches, and have elected trustees thereof from year to year, until the present time ; it is thereupon further ordered, adjudged and decreed, that it be referred to one of the masters of this court, residing in any county in this state, to inquire and ascertain whether the said complainants, together with those adhering with them, as aforesaid, have kept up such corporate organization in the said two churches, and have elected trustees of the said two corporations, from year to year until the present time, or otherwise, so that at the present time there are such trustees, representing the said complainants, and those adhering with them, as aforesaid, in such churches and corporations, or either of them, and that the said master report thereon to this court without delay; and: if he finds such existing organization, that he set forth and declare in his report who are the trustees of the said respective corporations at the date of his report, under or in pursuance thereof; and upon the confirmation of his report, the said persons therein reported as being trustees, shall be from thenceforth deemed to be the only lawful trustees of the said two corporations respectively, and as such entitled to the possession, custody and control of the said church edifices, and of all the real and personal estate of the said two corporations. And it is further ordered and decreed, that if the said master shall find that there are no trustees of the said two corporations chosen under such organization, who are in office, and representing the said complainants and their adherents, as aforesaid, then the said master shall cause an election of such trustees to be held in the said churches respectively, giving, such previous notice of the time and place of holding the same as is prescribed by the statute relative to religious incorporations and elections therein, (as far as such notice is practicable,) and the said master shall preside at and superintend such election, in the said respective churches, and shall report thereon, with the names of the trustees, then and there chosen, to this court without delay; and upon the confirmation of his report thereof, the persons therein reported as having been elected such trustees, shall be, and they are hereby adjudged and declared to be the lawful trustees of the said churches and corporations respectively, and entitled to possess, keep and control the said church edifices, and all the estate, real and personal, of the said two corporations, in the same manner as if they had been duly elected at the last preceding annual election, in the said two churches, according to law. And it is further ordered, adjudged and decreed, that the said defendants, (except the said corporations,) and ali other members of the said two churches or congregations, who adhere to the Franckean Synod and the declaration of faith established and declared by that synod, be and they hereby are, and each of them is, perpetually enjoined and restrained from intermeddling, or in any manner, interfering with the temporalities of the said two churches or congregations, and from using, or in' any manner appropriating the same, or any part thereof, for any purpose or object whatever, except in accordance with the provisions of this decree, and- also from hindering, delaying or preventing the said complainants, and the other members of the said two churches who adhere to the Augsburgh Confession of Faith and the Hartwiek Synod, in the free use and enjoyment of the said two church edifices, in the said bill of complaint mentioned, for the purpose of divine worship, according to the doctrine and faith of the Evangelical Lutheran Church as established and declared by the said Augsburgh Confession of Faith, and preaching and teaching the doctrines, tenets and principles of that confession therein. And it is further ordered, adjudged and decreed, that the said defendants, in the said bill of complaint named, except the said two corporations, pay to the complainants, or their solicitors, their costs of this suit to he taxed, and that they, the said complainants, have execution'therefor, &c.

And that the said complainants be at liberty to apply for such further order and directions in the executioh- of this decree, as they may be advised.

Now reported in 10 Paige’s R. 627.

See The Attorney General v. Munro, (9 Lond. Jurist Rep. 461, April 22, 1845;) before Sir Knight Bruce, Vice-Chancellor.

The case of Keyser v. Stansifer, (6 Ohio R. 363,) may perhaps be classed with the one in North Carolina. See also, Methodist Church v. Price, (4 ibid. 515, 542;) The Same v. Wood, (5 ibid. 205, 286;) Shotwell v. Henderson, in Chancery in New-Jersey, (Judge Ewing’s Appendix, 40-1, 51-2, 76-7, and 84-5.)

The bill was passed, July 19, 1844. Stat. 7, 8 Vict. sess. 4, ch. 45. (8 London Jurist Misc. 339.)

Commentarius Historicns et Apologeticus de Lutheranismo, Lib. 2, Sect. 23, § 58, fol. 159, Editio Secunda; in whch book the author reviews the Jesuit Maimbourgh’s History of the- Reformation.

Since this decision was made, I have met with some further historical evidence. The great and revered Lutheran Missionary, Dr. Muhlenberg, in his reports to the Orphan House at Halle, (1 Hallische Nachrichten, 363 to 367,) writing in 1750, says of the Lutheran Church in the city of New-York, (Trinity Church, the Low Dutch Lutheran foundation, now the United German Lutheran Church,) “ that the church had been, built and dedicated with their own mites and friendly aid from Europe, for an Evangelic Lutheran congregation, according to the unaltered Augsburgh Confession.”

Dr. Kunze in the same work, (vol. 2, p. 1508 et seq.) giving an account of the Lutheran Church in this state, speaks of Mr. Schwerdtfeger, above Albany, Mr. Moeller in Albany, Mr. Iiiess in Stone Arabia, and Mr. Gray in Eastcamp ; and adds, “ further up an old gentleman of the name of Sommer, who cannot see any more.”

These be names as the regular evangelical preachers at that time stationed in this state. lie was writing in May, 1785. He says, “ Entirely vacant, are several fine congregations, such as Rhinebeck, Wurtemberg, and many others in Tryon county, which is entirely settled by Germans.”

а) Berriman’s Historical account of the Controversies concerning the Trinity, 70.

б) History of Early Opinions concerning Jesus Christ, vol. 4, Appendix, p. 391. The author of the Clementines, he says, was an Unitarian.

In the same work, Dr. Priestley says that Justin Martyr was the first writer that can be proved to have advanced the doctrine of the permanent personification of the logos. (Vol. 1, p. 269.) And that Justin was the first writer who publicly maintained the pre-existence and divinity of Christ. (Vol. 3, p. 277,8.)

See the note, ante page 521, from the Hallisehe Nachrichten.

See his argument as now reported in 10 Paige, 645, 646.

This case is now reported in 2 Howard’s U. S. Rep. 196; and Judge Story ip his opinion says, there is no longer any doubt on the subject- The very able, elaborate, and profound argument of Horace Binney Esq., in the Girard Will Case, exhausts the learning on the subject of charities; and the bar has reason to regret that it was not more fully reported by Mr. Howard.