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that they might withdraw, retain their property, and re-establish the minister who had long and faithfully served them. But what was their astonishment and grief, when they found that even this last resource of the afflicted was denied them? They could not withdraw, but as individuals ; and in doing this, they must commit ecclesiastical suicide, and leave their inheritance to their persecutors. And the legacy of their dear brother, on whose grave the grass had scarcely begun to grow, must, in any case, be perverted to the support of a ministry which he would have abhorred.
We hope indeed, that instances like those here supposed, will not often occur in this country, under any civil regulations. But why should they ever? And especially why should they, under the sanction of judicial decisions, which have the force of law ? Better have no laws on the subject, than laws which hold out, not merely license, but encouragement to wrong.
It is an aggravation of the evil, that, in all the instances, like those we have given, which can occur, the injury will invariably fall upon the more conscientious and religious part of the community. The man of easy principles and conscience, who can slide along any way, as his convenience, his interest, or his passions may dictate, will always escape; while those who feel their obligations to God, and who dare not violate them, must be left to suffer for their integrity.
In reply to what we have here offered, it will no doubt be urged, that cases of great hardship would be likely to occur, were the sole power of electing a minister, and of managing parochial funds, to be vested in the church. But we repeat here, for the last time,—and whatever else may be forgotten, we hope this will be remembered,—that we do not claim or wish for the church the right to choose a minister for the parish, or the right to hold or control parish property. We only ask, that the church may be allowed to choose its own pastor, and to manage its own funds; and, in case of inevitable disagreement between church and parish, that it may be permitted to withdraw, and support such worship as it can approve. Is not this a reasonable demand? Is it not conformable to all our ideas of Christian liberty and propriety? Can any cases of injustice or hardship possibly grow out of it? We appeal again to the candor of the community.
5. It may be necessary to observe, although it should be making but a small advance, that the decisions in question are inconsistent with Scripture, and with the institution of Christ. On a subject such as this, express declarations are not to be expected. It will be sufficient if we shew, that they are manifestly inconsistent with the general spirit of the sacred writings. And is not this abundantly evident, from what has been already said? If these decisions are inconsistent with the independence of the churches, and with their dearest natural rights, taking from them that which Christ and the apostles gave, and opening the way for their oppression and plunder ; then they must be inconsistent with the Scriptures. What Scriptures can be found, to give their sanction to proceedings such as these? The churches of Christ are invested by their divine Lord with certain necessary powers and rights, such as that of admitting and excluding members, electing their own officers, and managing, in the general, their own concerns; and no man can wrest these from them, and be guiltless. They are exhorted to “stand fast in the liberty wherewith Christ hath made them free;" and wo be to the hand which attempts to bind them.
6. We object to the views expressed in the decision of the Dedham case, that they are too evidently of a sectarian character. We do not complain, on the ground merely that this case was decided in favor of Unitarians. But we do complain, that the highest judicial officer in the State, while seated on the bench of justice, should allow himself to go into a discussion of theological questions, and make them a ground of his decision, in a way to favor one religious denomination, and to prejudice others. The Constitution wisely provides, that “no subordination of any one sect or denomination of Christians to another, shall ever be established by law.” We would inquire, then, whether it can be constitutional for an officer of the government, whose decisions are to have the force of law, to attempt determining points of theology which are at issue between different denominations of Christians. What would be thought, if such points were brought before the Legislature, to be decided by literal enactments? But they might as well be decided there, for aught we see, as on the bench, since the decisions of the bench, until reversed, are much the same as laws. Why, then, did Chief Justice Parker, in the decision, to which we have referred, take it upon him to say, that “ the practice of the Episcopal churches,” in regard to the sacrament, “is more conformable to the practice of the primitive Christian churches, than that of most who dissent from their form of worship”? And why did he decide, in exact conformity to the religious views of Unitarians, * and in as exact opposition to those of the Orthodox, that there was no distinction, in primitive Christian times, between the church and the congregation, but all the assembly were considered the church, and all were invited, without distinction, to come to the “communion table, and receive the sacrament.”+ The learned Judge will pardon us, if we think these subjects not a little out of his professional sphere. To be sure, as a man, he has the same right as
• The views of Unitarians on these subjects may be gathered from the Christian Examiner for January and February, 1826, and from the Christian Disciple for July and August. 1820. This number of the Christian Disciple contains a Review of the Dedham controversy, and was published but a short time previous to the decision now before us. We think no person can read the Review, and the decision, without discovering a striking resemblance in opinions, is not in the language, of some parts of the latter, lo those of the former.
+ Term Reports, vol. xvi. p. 499.
any other man, to form his opinions, and to express them, on all religious subjects; but, as the highest judicial officer in the Commonwealth, sitting on the bench of justice, and acting the part, not only of a Judge, but, in some sense, also of a legislator, we really think he may better leave disputed points in theology to be determined in their proper place.
7. The late decisions of which we complain, are inconsistent with other and previous decisions. In the case of Burr vs. Sandwich, we have the following sentiments from the late Chief Justice Parsons. “We have to decide," says he,“ upon the nature and powers of a Congregational church, as distinct from a parish.”—“A parish and church are bodies with different powers. A regularly gathered Congregational church is composed of a number of persons, associated by a covenant or agreement of church fellowship, principally for the purpose of celebrating the rights of the Supper and baptism. They elect deacons; and the minister of the parish is also admitted a member. The deacons are made a corporation to hold property for the use of the church, and they are accountable to the members. The members of a church are generally inhabitants of the parish; but this inhabitancy is not a necessary qualification for a church member."*
Chief Justice Parker tells us, that “the only circumstance which gives a church any legal character, is, its connexion with some regularly constituted society," and, indeed, “ that a church cannot subsist, without some such society to which it is attached.” But Chief Justice Parsons decides “ upon the nature and powers of a Congregational church, as distinct from a parish,” and tells us, that “a church and parish are bodies with different powers.”
Chief Justice Parker tells us, once and again, that the church is a mere trustee for the parish, and holds its property for the use of the parish. But Chief Justice Parsons says, “ The deacons are made a corporation to hold property for the use of the church, and they are accountable to the members." .
Chief Justice Parker tells us, (what every clergyman in the State knows to be incorrect,) that those "who withdraw from a society, cease to be members of that particular church” with which the society is connected.f But Chief Justice Parsons says, “ The members of a church are generally inhabitants of the parish; but this inhabitancy is not a necessary qualification for a church member.”
Chief Justice Parker insists that the property of the church in Dedham was designed to be appropriated for the support of a minister; and, as such, is rightfully entrusted to the care of the deacons, to be held by them for the benefit of the parish. I But it was decided by Judge Sedgwick, in the case of Boutell and * Mass. Term Reports, vol. ix. p. 277. Ibid. vol, xvi. pp. 504, 605. Ibid. p. 495. others vs. Cowdin, that “the deacons of a Congregational church are not a corporation for the receiving and managing a fund for the support of a minister."* We pretend not to determine which of these decisions is nearest the truth ; but, really, we not do see how they can be reconciled, the one with the other.t
8. The doctrine that a church can have no “legal character," and, indeed, “ cannot subsist,” unless in “connexion with some regularly constituted society,” is calculated to introduce the utmost confusion and uncertainty into the ecclesiastical concerns of the Commonwealth. A legitimate inference from the doctrine is this, that when a parish, for any cause, ceases to exist, the church must go out of eristence with it. Certainly, if “a church cannot subsist,” but in connexion with some religious society, then it can subsist no longer than such society, and when the society is dissolved, both must die together. Now, in the progress of things in this changing world, how very often have societies and parishes gone out of existence? How often in this Commonwealth have they found it expedient, with a change of circumstances, or a change of laws, 10 shift their form of organization, i. e. to dissolve, and organize aneic ? Here is a town, which for many years has sustained a parochial character, and has had a church associated and connected with it. But at length the town drops this character, ceases to act as a parish, and a religious society is organized to take its place. In this change of affairs, what becomes of the church? If it dies, in the dissolution of the parochial character of the town, then how can it revive, and become united with the new society, but by a new organization ? But, in the progress of things, it is found that the new society is not established in the most desirable way. It is therefore dissolved, and another is established. Again we ask, What becomes of the church? Dying, as it must, in the dissolution of the first society, how does it revive, and become united with the second ?
Changes, such as are here supposed, are of frequent occurrence in this Commonwealth. Many are known to have taken place, since the adoption of the Constitution. Yet the churches have not been regarded as dying, in the dissolution of societies, nor have they been re-organized, in accommodation to such parochial changes, we venture to say, in a single instance. How, then, are such churches to be considered? Have they, or have they not, any legal existence? They retain their covenant, and records, and
• Mass. Term Reports, vol. ix. p. 254. + It may be interesting to know the history of the doctrine that a Congregational church ean bave no legal existence but in connexion with some regularly constituted parish. It was first broached in this case of deacons Boutell and others vs. Cowdin, in 1812, by the council for the defendant; but no opinion was expressed by the court. It was mert decided in the case of "the deacons of the first church in Sandwich vs. Tilden;" but the case was not reported. It was again decided in the Dedham case, by Chief Jus. uce Parker. It is but about sixteen years, since this strange doctrine was invented; and itaas now, for several years, been confirmed as a law of the land,
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2. In support of the doctrine of the late decisions, it has been alleged, that, in holding and managing property, the church is merely a trustee for the parish; and, consequently, were the church allowed to disconnect itself from the parish, and remove its property, the trust would be violated. But how does it appear that the church is merely a trustee for the parish? Taking, for example, the church in Dedham, on which the decision before us was made; how does it appear that this church was no more than a trustee, for the benefit of the parish with which it was connected? Is it so said, in any of the ancient purchases, or grants, or gifts to this church? No, in not one of them (and they are many) is any such trust expressed or intimated. On what, then, does the conclusion rest, that the church is no more than a trustee for the parish? Why, it is said, that the property of the church must have been intended for “the support of a minister, building or repairing the meeting house, or some other object connected with, and promotive of the public worship of God;" and, since all the parish must be benefitted by such an appropriation of church property, therefore the parish have an interest in it, and the church hold it merely for their benefit.*
In reply to this argument, it may be observed, that the property of the church might have been intended for the support of public worship, or it might not. In either case, it was the church's property, and, as such, was at the church's disposal; in promoting the objects for which it was held, they might do with it as they pleased : · and it seems they always had done with it as they pleased. “It was proved," says the reporter, “that the church in Dedham have always had the crclusive control and management of the property and the funds, raised from the sales of land before mentioned.”+
But it is said, the church did apply some part of their funds, from time to time, as they were needed, “to the support of the minister, and to defray other charges relating to public worship.”I Very well-suppose they did. They applied them to the support of their own pastor—the officer of their choice and institution. And suppose this officer were also minister of the parish, and that the parish itself was benefitted by the appropriation. Because the church frequently gave money, by which the parish was benefitted, does the parish thereby become entitled to all the benefit of the church's money? And does the church eventually sink into a mere trustee, for the benefit of the parish ? Apply the same reasoning to the case of individuals. I have contributed, for a numher of years, towards the support of a certain poor family. But has that family now a legal claim to the continuance of my contributions? And has it come to this, that my property is no longer
* Mass. Term Reports, vol. xvi. p. 496.
Ibid. p. 491.
Ibid. p. 501.