Smith v. Nelson

The opinion of the court was delivered by Williams, Ch. J.

This is an appeal from the decision of the chancellor in the fourth judicial circuit. The facts, so far as is necessary to show the grounds of our decision, are as follows :

William Nelson, late of Ryegate, made his last will and testament *541 on the thirtieth day of September, 1830, and, among other bequests therein, was the following : — “As a testimony of my gratitude to the giver of every good and perfect gift, I farther will and devise the sum of one hundred and fifty.dollars, as a donation to ‘ The Associate Congregation of Ryegate,’ to be placed under the direction of the trustees of said society, and the interest thereof to be annually paid to their minister forever.” The testator died the twenty fourth of January, 1831, and the will was duly proved by the executors. In March, 1841, the defendant, John Nelson, was appointed administrator de bonis non, with the will annexed, the legacy before mentioned not having been paid, and, on a settlement of his administration account in May, .1842, the legacy, together with about seventy two dollars interest thereon, was found in his hands, and he was held chargeable therewith.

It appears farther, that there has been a society in Ryegate for a period of more than fifty years, of persons of the presbyterian denomination of- Christians, ascociated for the purpose of promoting the preaching the gospel, procuring preaching, &c., called the Associate Congregation of Ryegate, who have elected officers of the society, to wit, a moderator, clerk, treasurer and collector, or collectors, annually, and in March, 1843, in addition to these other officers, they elected three trustees. The Rev. Mr. Pringle was regularly settled and ordained, as minister of this congregation, as early as the year 1830, has officiated as such to this time, and still continues to be so, unless from the farther facts, which are in evidence, he was suspended, or ceased to be their minister, in July, 1840.

Previous to the year 1838 the ministers and officers of the congregations in Ryegate and Barnet belonged to and formed part of the associate presbytery of Cambridge, in the state of New York ; but in that year they were constituted by the Associate Synod of North America into a separate presbytery, called the associate presbytery of Vermont, and duly organized as such.

A difficulty arose in the presbytery of Cambridge in relation to Dr. Alexander Bullions, in consequence of his reflecting upon four members of the presbytery, to wit, Messrs. A. Gordon, David Gordon, James Miller, and Abraham Anderson, the result of which was, that he was, on the seventh of October, 1837, censured by the presbytery .and suspended from the ministry, and, by a vote on the *542 twelfth of April, 1838, deposed from the ministry. Between the times when he was first suspended and eventually deposed, to wit, on the twelfth day of November, 1837, there was a full meeting of the presbytery, on the petition of Dr. Bullions’ congregation in Cambridge, to take into consideration his case. All the members of the presbytery were present at this meeting, and a majority of two were in favor of restoring Dr. Bullions to the communion of the church and the full exercise of the ministry. But, before any vote was taken, a resolution was passed to exclude the Rev. Mr. Goodwillie and Mr. Pringle from their seats in the presbytery, in the case of Dr. Bullions, the two being embraced in the same resolution and vote ; and this was carried by the casting vote of the moderator, Mr. James P. Miller; and, after these two were excluded, Rev. Mr. Whyte was also excluded ; the two first on the ground of affinity and partiality, and the latter on the ground of partiality ; by connecting the two, Messrs. Goodwillie and Pringle, in one resolution and vote, they were both prevented from voting in the case of each other, and thereby a majority remained unfavorable to Dr. Bullions. The persons, who procured the ejection of these members of the presbytery, were Messrs. Anderson, Miller and Gordon, who, it appears, were the accusers of Dr. Bullions and the persons, aggrieved by his conduct. They voted to exclude Messrs. Good-willie and Pringle, above named; and, in all the subsequent procedsngs against Dr. Bullions, they were not excluded from, and did mot decline, voting.

At this meeting in November, after the gentlemen above named were excluded from sitting, Dr. Bullions was heard in explanation ; but his explanation was not deemed satisfactory. Commissioners, who attended in behalf of his congregation in Cambridge, wished ■to know what would be satisfactory.. The presbytery thereupon proposed seven requisitions, to which Dr. Bullions was to give his answer at an adjourned meeting, to be holden in December; but to ■one of these they required an immediate answer. Of the nine ministers who were present at this time, the case of Dr. Bullions being on trial, Messrs. Goodwillie, Pringle and Whyte being excluded, only five ministers were left to act, viz. Mr. Anderson, Mr. A. Gordon, Mr. D. Gordon, Mr. Miller and Mr. Stalker, the first four being the persons whom it was alleged Dr. Bullions had slandered, by his decía *543 ration, at a previous trial of Mr. Stalker, that they were unfit to sit in any court. That the requisitions would not be very likely to be either acceptable, or conciliatory, proceeding from the men with Whom it is evident Dr. Bullions had the difficulty, is to be inferred from the slightest acquaintance with human nature, and the operation of the feelings, passions and prejudices, to which all men are subject. Ac* cordingly we find, that, at the meeting in December, the answers, or explanations, of Dr. Bullions were not deemed satisfactory, and a vote was taken to that effect. At this meeting the only ministers present were Mr. Stalker, Dr. Bullions, and Messrs. Anderson, Miller and D. Gordon. Their first vote was, on motion of Rev. David Gordon, to exclude-Mr. Stalker from sitting in that case j thus leaving Messrs. Anderson, Miller and Gordon, the only remaining ministers, together with the elders, to decide and judge in the premises. This vote was subsequently reconsidered. At the meeting holden on the tenth, eleventh and twelfth of April, 1S38, the same members were present, except Mr. Anderson, who was absent with leave, and Mr. Stalker, also absent, who had been excluded from sitting, as before mentioned. The presbytery, thus constituted, unanimously deposed Dr. Bullions from the ministry, and prohibited him from exercising any part of the office of a minister. This decision was affirmed by a majority of the synod, at their meeting held in Philadelphia, in May and June, 1838. In the votes taken on this subject in the synod, Rev. David Goodwillie, who stood in the same relation to Dr. Bullions as Rev. Thomas Goodwillie, was permitted to sit and vote, without any objection from any quarter.

At the same meeting of the synod, on application of the presbytery of Cambridge, the presbytery of Vermont was erected and constituted by vote of the synod, and the ministers and elders within the bounds of the State of Vermont were required to meet at Bar-net, to organize the presbytery. The presbytery of Vermont accordingly held a meeting at Barnet in July, 1838, and was duly organized, according to the forms of the church, at which time Dr. Bullions applied to them to be restored to his former standing in the church, and, on submitting to a censure, it was voted, that he be restored to the communion of the church and the exercise of his ministry, — the presbytery considering him at that time as fully excommunicated. For this act of the presbytery of Vermont the *544 presbytery of Cambridge complained to the synod; and the synod, at their session in May, 1839, resolved, that the act of the presbytery of Vermont, in the restoration of Dr. Bullions, was a contempt of the authority of the synod; second, that it presented an instance of solemn mockery and perversion of the divine institution of church government; third, that the conduct of the Vermont presbytery was not only illegal and unconstitutional, but disreputable to the ministerial and Christian character of the bretheren themselves of that presbytery, and consequently calculated directly to injure religion; fourth, that it was a most disorderly and irregular attempt to usurp the prerogatives of a co-ordinate presbytery, and to destroy all order and government in the church; fifth, that it was trifling with and in direct violation of their ordination vows; sixth, that it was unbrotherly towards the presbytery of Cambridge, and directly calculated to disrupt all fraternal feelings : they therefore resolved, “ that the conduct of the presbytery of Vermont rendered it evident to the synod, that it was unsafe to commit to them the presbyterial oversight of that portion of the church, by the synod committed to their care; that the presbytery be suspended from the exercise of presbyterial authority until the next meeting of the synod, and that the brethren and all the congregations under their oversight be committed to the care of the presbytery of Cambridge until the next meeting of the synod,” and “ that the members of the presbytery be cited to appear at the Bar of the Synod, at its next meeting, to answer for their conduct.” This was adopted by a vote of sixty one to thirty six, to which there were several protests. It was then voted by the synod, “ that the deeds of the associate presbytery of Vermont, in restoring Dr. A. Bullions to the office of the ministry and the communion of the church, and admitting him as a member of that presbytery, are null and void from the beginning.”

At the time these resolutions were passed, no members of the presbytery of Vermont were present, nor had they been cited to appear, or had any previous notice, that such proceedings were to be had. A citation then issued to the presbytery of Vermont, whether regular or not is not important, and, at the synod in 1840, they did not appear, and it was voted they should be rebuked, should submit to the decision declaring their deed in restoring Dr. Bullions null and void, and, upon their compliance with these decisions, they be restored.

*545 A commission, consisting of Messrs. Abraham Anderson, James Martin and Joseph T. Cooper, was then appointed to meet in Bar-net, call the presbytery before them, and execute the decision of the synod, and with farther instructions, in case of non-submission, to dissolve that presbytery, to suspend the members of it from the exercise of the ministry and communion of the church, until they acknowledge their sin and return to their duty ; to refer them to the presbytery of Cambridge for farther dealing, and to place their congregations under the care of the latter presbytery. This commission accordingly, in July, 1840, proceeded to Barnet; and one of them, Mr. Martin, being sick, the other two executed the commission, dissolved the presbytery of Vermont, suspended the ministerial members from their office, referred them to the presbytery of Cambridge for farther dealing, and their congregations to the care of the same presbytery. The congregation of Ryegate, however, June 30, 1840, voted, nem. con., to join in a protest against the decision of the synod, and to stand by their minister.

The presbytery of Cambridge afterwards, in January, 1842, proceeded to depose Mr. Pringle and Mr. Goodwillie from the office of the ministry, and from exercising the same, and declared their congregations vacant.

It appears farther, in the examination of the testimony, that, as early as 1823, an association was formed, called the Associate Society of Ryegate, for the purpose of holding lands, or other property, whereon to build a meeting-house, or house for the minister, or for the benefit of the spciety; that this society was re-organized from time to time, and, among the officers provided for in their by-laws, was a trustee, or trustees. In 1841, after the divisions had arisen in this society, a spirited contest was had for the election of trustees, which ended in their declaring John Nelson, the defendant, John Gibson and Alexander Gibson trustees of the society. There was evidently, however, an irregularity in that election, in permitting persons to vote who were not legal voters.

The defendant, however, as administrator of William Nelson, paid over this legacy to these trustees, the principal in May, and the interest in November, 1842. The legacy, or the interest, was demanded of the defendant, as administrator, by the attorney for the orator and Associate Congregation, and was refused, unless on his *546 signing a receipt to the before named persons, as trustees. This was declined on the part of the orator, though he offered to execute a receipt to them for the money, but not acknowledging their character as trustees. There are also some objections to the organ* ization of the latter society, to which it is not material to advert, as they have no effect on the decision.

It farther appears, that the presbytery of Vermont, several other members of the congregations of Vermont, Mr. Whyte and others from the presbyteries of Cambridge and Albany sent memorials to the synod, which met at Washington, Penn., in 1841, praying them to review their case and to reverse the decision; but this was utterly refused, was considered as a repetition of their contumacy, the memorial of the presbytery was returned to the person presenting it, and, to the memorial of the Rev. Mr. Whyte, a committe, consisting of Messrs. Anderson, Miller and Martin, were appointed to report an answer. After this, in the same year, on the fifteenth of June, 1841, the exscinded brethren in Vermont and of the Cambridge and Albany presbyteries assembled at Cambridge, formed a new organization, and claimed to be the true Associate Synod of North America.

A minority of the members of the church and congregation in Ryegate, who still adhere to the synod, joined by some members of the church in Barnet, who are in the same situation, have since ^given a call to the Rev. Isaac Law.

In the consideration of this question my mind is not embarrassed by the considerations, which have been presented, arising from the organization, or constitution, of the associate church, or from the consideration of the proceedings, or sentences, of any ecclesiastical tribunal whatever. ( The bequest, or the trust declared by the will, does not appear to me to be equivocal in the least; It is a legacy to the society called The Associate Congregation of Ryegate. This society, under our constitution and laws, is capable of receiving and holding a legacy. By the constitution of this State, all religious societies, or bodies of men, “ united or incorporated,” are to be protected in the enjoyment of their estates, &c. The object of the legacy is sufficiently explicit, as ú donation to the society, “the interest thereof to be annually paid to their minister forever.” I should consider this, and all similar donations, as a gift or grant to *547 the society ; and the only inquiry, to be made in relation to it, would be, whether the society still existed, and whether they have a minister, chosen and appointed by the majority and regularly ordained over them, agreeably to the usage of the society, or church, to which they profess to belong; and in this view I should clearly recognize! the right of such society to elect such minister, as they thought proper.

Not having any religious establishment in this country, and our" population continually varying and shifting, one denomination of Christians being at one time the most numerous, and in the course of a few years another, unless this right of the majority is recognized, and a gift, or donation, is to be construed as having reference to this state of our society, and as being intended, by the donor, to be controlled by a majority, property given, devised, or bequeathed, to a religious society, and for a religious purpose, might, in the course of a very few years, be wholly locked up and secluded from any useful or beneficial purposes; and we never ought to give such a construction to a legacy, or gift, unless imperatively called on so, to do by its explicit terms. However strange it may sound to the ears of an Englishmen, as was observed by the Lord Chancellor, in the case of Leslie v. Birnie, 2 Russ. 114, that a minister is to be elected by “the elders, members and seat holders,” yet I apprehend that the very spirit of our institutions does explicitly recognize this right of electing or employing a minister, as vested in the corporate body, or the majority of the individual members. In conformity with this principle have been our decisions in relation to meetinghouses, or churches, erected for public worship. The society may repair, take down and rebuild its meeting-house, with or without compensation to the pew-holders, as the case may be, and erect another, without any particular regard to the way, or manner, in which it was first built, or the religious tenets of those who first erected it, or made donation therefor. Kellogg v. Dickinson, ante p. 266, and cases there referred to. Baker v. Fales, 16 Mass. 488 . Baptist Church v. Witherell, 3 Paige 296 . In this latter case the learned chancellor very ably and fully expresses my views of the nature of a grant to a religious society, the jurisdiction of a court of equity, the effect of a sentence of a church judicatory, and the rights of a majority of the members of a religious society. The terms of a *548 deed of trust, or of a legacy, however, may be so explicit as to control this right of a majority, or compel a court to declare a trust ineffectual.

In the case of Milligan v. Mitchill, 1 Mylne & Craig 433, Mylne & Keen 446, the chancellor found, upon the evidence, a trust and a breach of trust, and upon that decreed the relief prayed for ; and, inasmuch as the by-laws of a society may constitute and become a part of the donation and of the trust, the inquiry may be had, as it was in that case, whether their by-laws may be altered, without forfeiting the gift. It is to be observed, however, in that case, that the religious sentiments of Mrs. Drake, who made a will in 1730, did not enter into the consideration of the decision, nor was the right of a majority to repeal any of the by-laws, when it did not affect any right of property, questioned. There is nothing in the legacy of Mr. Nelson, which brings the case within the principles decided in that case, or which requires us to examine, how far that decision is compatible with “ the local situation and circumstances ” of this State, or “ with the laws and constitution of the same.”

These views, already expressed, would be'sufficient in my mind to warrant a decision, that the orator is entitled to this legacy for the benefit of the Associate Congregation of Ryegate, and that they may appropriate it for the payment of the salary of Mr. Pringle, as their minister, who was duly constituted such in the life time of the testator, was such, when he made the will, and who continues to be such, if the wishes and votes of a majority of the society are to be regarded. And this relation, I apprehend, is not to be dissolved against the will of Mr. Pringle and of a majority of the congregation, by the proceedings of any ecclesiastical tribunal. The court, however, are not disposed to rest their decision on this ground, but have examined the positions which have been taken and urged in the argument, and the result has been the same, in whatever attitude the case is presented.

In recurring to the proceedings of the congregation, different presbyteries, and synod, which have been brought to our notice, as well as the effect they are to have on the subject in controversy, and the authorities which have been read, it becomes necessary to examine the foundation of ecclesiastical law, the powers of their judicatories, the effect of their sentences in this country, as com *549 pared with the same in Great Britain, and also the striking difference, which exists between them in that country and this, which will necessarily require different determinations on subjects apparently similar, when brought before the courts in Great Britain, or in this State.

In England the ecclesiastical law and the ecclesiastical courts are established by legitimate authority and become a part of the law of the land. By the common law, the King is the head of the church ; which means, that all ecclesiastical power and authority is established by him, and by and under law. No canons can be made, except by his consent. Ecclesiastical courts and ecclesiastical law are adopted, as part of the common law. Their proceedings are according to the forms of the civil law, and the King may pardon all offences, within the jurisdiction of the spiritual courts. The courts of common law have and exercise a superintendence over their proceedings, and may keep them within their jurisdiction, and control them by writ of mandamus, prohibition, &c. The authorities for this may be found in Caudrey’s Case, 5 Co. 1; 3 Com., Tit. Ecclesiastical persons; 7 Com., Tit. Prerogatives, D. 8-10, 17; Bishop of St. Davids v. Lucy, 1 Ld. Raym. 447, 539. The sentences of these courts are there entitled to the same consideration, as the sentences of any other inferior tribunal. Their decisions are final and conclusive on all subjects within their jurisdiction ; but, as I have said, they may be controlled and examined into by the courts of law. Thus a prohibition will issue, when they take cognizance of matters clearly within the jurisdiction of the temporal courts, and also when they proceed on matters not sufficient to justify proceedings, either in a temporal or spiritual court. 39 E. C. L. 548. The government and jurisdiction of the church in Scotland are also established by authority of parliament. Abridgment of Acts of Parliament, Pardovan 225.

In this State the case is wholly different. We have no religious establishment, no ecclesiastical law, or courts, established by any authority. All their laws are wanting in this essential requisite, to give them any authority, that they are not “prescribed by the supreme power in a State.” And though they may form constitutions, enact canons, laws, or ordinances, establish courts, or make any decisions, decrees or judgments, yet they can have only a voluntary *550 obedience, cannot affect any civil rights, immunities, or contracts, or alter or dissolve any relations, or obligations, arising from contracts. When their proceedings are to be examined by ordinary tribunals of justice, their power is a phantom, and they can receive no other consideration, than the regulations of any other voluntary associations, formed for trifling, or grave and important, purposes. Obedience to the requisitions of any ecclesiastical societies may be required, under the penalty of spiritual censures; but this is the only penalty incurred by disobedience; and whether one submits to, or defies, the proceedings of any ecclesiastical court, or any censures passed by them, depends on his conviction of the regularity, or irregularity, of their proceedings. In short, they can only affect the conscience of the individual; how far they affect this, he must be the judge.

It is not to be inferred by this, that I am indifferent to the subject of ecclesiastical organization, government, or discipline. As an individual I should be disposed to submit to all regulations, not inconsistent with my duty to a higher power, and should examine their proceedings with great consideration and care, before I should venture to question their propriety. But in a court of justice, sworn to administer justice according to law, I cannot recognize any constitution, laws, ordinances, or sentences of any ecclesiastical tribunal, or of any voluntary society, as having any efficacy or power over the civil rights, immunities, or contracts of individual?. In Cullen v. Duke of Queensbury, Lord Thurlow said, of a voluntary society, that he would convince the parties, they had no laws and constitutions. And Lord Eldon spoke with contempt and alarm of a lodge of freemasons, who affected a corporate character, and exhibited their laws, forms and constitutions upon record. And of these voluntary associations, though they frequently make constitutions and pass by-laws, which they declare are not to be altered, except in a certain way, or manner, as by the concurrence of two thirds, or at two different meetings, &c., yet their constitution and laws may at any time be altered, or abrogated, by the same power which created them, and the vote of any subsequent meeting, abrogating, or altering, such constitution, though passed only by a majority, has as much efficacy, as a previous vote establishing them. A constitution for a voluntary society may be proper, as an organization, but it has none *551 of the powers or requisites of a constitution in political bodies, which emanates from a higher power than the legislature, and always is supposed to be enacted by a power superior to the legislature, and hence is unchangeable, except by the body which established it; but that body can change it at pleasure. It is idle, however, for such societies to talk of constitutional restrictions, or absolute or unlimited power, either in conventions, associations, presbyteries, or synods.

There cannot, in this country, be attributed to the decisions of a synod, or the'decisions of any ecclesiastical judicatory, either infallibility, or freedom from error, nor can they claim rightfully unlimited obedience; and when it is attempted to give to their adjudications the same effect, as is given to the sentence of ecclesiastical courts in England, or the superior courts of common law, the attempt must be unavailing ; even the limits of the obedience which is due to the church courts of the associate church, to which all these parties belong, from the members of the denomination, and for a disobedience to which the party may be subject to church censures, is by no means accurately defined. Mr. Goodwillie, in his testimony, says, the church courts have not sovereign, arbitrary and absolute power; that if their decisions are not agreeable to the word of God, they are not to be received ; and that every man has a right to judge for hiniself concerning their determinations. Mr. Reid considers the decisions of church courts as binding, provided such decisions are not contrary to the word of God. He makes a distinction between such as affect personal cases, and such as affect doctrines and matters of faith. Mr. Anderson considers them as absolutely binding, and rejects the distinction between decisions on matters of faith and doctrine, and decisions in personal or public matters. In the declaration and testimony of the Associate Presbytery, adopted in 1784 and revised in 1813, Art. 10, sec. 5. par. 3, it is expressly declared, that their decisions, if not agreeable to the word of God,, are not to be received ; and the right of every man to judge for himself, concerning the determinations of church judicatories, is expressly recognized. In the proceedings before the Vice-Chancellor of the State of New-York, between Stevenson and Dr. Bullions, I< find Mr. Anderson claimed, that, if Dr. Bullions had a seat in the' presbytery in a trial then pending, he should claim, in the event off *552 the decision being against him, that the proceeding was vitiated by Dr. Bullions’ having a seat; and at the time of the secession of the Associate Church from the General Assembly in Scotland, in 1733, by Erskine and others, in their review of the proceedings of the judicatories against them, they say, “We are indeed bound at our ordination to subject ourselves unto the judicatories of the church ; but it is not an absolute subjection that we engage unto,” not a “blind and implicit obedience;” and they proceed to declare, that the same vows, which bound them formerly to communion, equally bound them to secede. Non nobis tantas componen lites. We can only observe, that the doctrine of passive obedience and non-resistance, which was exploded in the last century, cannot find favor, at this day, in a court of justice. These different and discordant views of the duty of submission, and indeed the whole controversy in this case, show how impossible it is for a court of law to endeavor to fix any standard, by which to determine and regulate the duty of obedience to the proceedings of any voluntary associations, whether for civil or ecclesiastical purposes, and how unsafe and improper it would be, to consider any church as vacant, and the relation of minister and church, or congregation, dissolved, against the consent of both, by the sentence, or decree, of an ecclesiastical court, to which, at the most, only a voluntary obedience can be required.

It is, however, claimed, in this case, that there is an implied contract between a minister and his people, that he should continue in the same ecclesiastical connection; and that, Mr. Pringle having been suspended from the exercise of his ministry, the contract between him and his people is dissolved, and the congregation cannot be entitled to any funds, given or appropriated for the support of a minister.; that the intent of the testator was to give this legacy to the congregation at Ryegate, as a part, or branch, of the associate church of the United States; and that, as the associate church have, according to the rules of discipline, deprived Mr. Pringle of the character of minister, no benefit can be had from this legacy for his support. This involves the consideration of the subject of such implied contract, the intent of the testator, and the proceedings of the different presbyteries and of the synod, according to their rules of discipline and church government, and,'as a branch of the first inquiry, the right of secession.

*553 With respect to any implied contract between a minister and his people, it may be remarked of this, as well as of any other contract, that we cannot add any thing by implication to the express terms of the contract itself. The parties may make conditions and qualifications, as they deem necessary. It may be true of this, as of all other agreements for future services, that there must continue and remain an ability to perform, or the party failing may be subject to the consequences attached to a breach of an obligation. When a minister ceases to be able to perform his ministerial duties, in consequence of any immorality, or a church censure for such immorality, it may afford a sufficient reason for the parties mutually to dissolve the relation, or for one of them to treat the contract as forfeited and rescinded by the other. But when both parties to the contract are satisfied, and neither desires the relation to be dissolved, it is not for this court, at the instance of others, not parties to the contract, to seek for understandings and implications, by which to avoid it, or to inquire, whether it would conduce to the satisfaction of others, to have a more acceptable minister, or one more closely connected with the denomination to which he belongs.

The church and congregation in Ryegate, before the settlement of Mr. Pringle, and indeed the associate church itself, was founded on the principle, that it is both the right and duty to secede, as was done by Erskine and others in 1733, from the prevailing party, who may obtain a majority in the judicatories, synods and assemblies, when, in the opinion of the seceders, such majorities have departed from the word of God, and the received and approved standards of doctrine, worship, government and discipline. Gib’s display, sec. 7, p. 36. The congregation in Ryegate and Mr. Pringle still profess to be presbyterians, and to adhere to the doctrines, government and discipline of that denomination. We can, therefore, discover, in this case, no implied cofitract violated, which should have the effect to dissolve the contract between him and the congregation of Ryegate, — more especially, as that congregation do not complain of any such violation.

2. In relation to the intent of the testator, that the legacy should be given to the congregation of Ryegate, as a part, or branch, of, and connected with, that part of the presbyterian denomination of churches called the associate church. It has already been remarked, *554 there is nothing ambiguous in the terms of the legacy; nor do we perceive any thing in any rule of law, which requires us to consider the testator, in this bequest, as having any regard to the connection of the congregation with any other body, or to any future divisions, which might happen in the congregation ; nor are there any means of ascertaining, to which of the parties, which now exist in that congregation, the testator would have adhered, if he had lived. Most probably, considering the times in which he lived, the free and liberal institutions of the government, under which he had been protected in his religions belief, and the tendency in all communities to divide into parties, one of which may prevail over the other for a longer or shorter time, he may have contemplated, that time, which witnesses changes in all things, might witness a change in that congregation, even in great and important matters, and took no pains to guard against such changes, by limiting, or clogging, the legacy with any conditions or stipulations, which should prevent the congregation from having the benefit of it at all times to come, while they had a pastor of their own choice. In relation to the argument, which has been drawn from the fact, that Mr. Nelson was a member of the congregation, while they adhered to the associate church, and that the legacy must be appropriated according to the rules of the church, of which he was a member, as it was constituted at the time of his death, — this position must receive the same answer, to wit, that the intention of the testator is sufficiently plain, and it is not necessary to revert to any source to ascertain that intent. It may be proper, in some cases of trust, to resort to the religious tenets of the founder, as evidence, when a breach of the trust is complained of, and when it is doubtful what was intended.

It could not, however, be tolerated in this country, to adopt, to their extent, the principles laid down in the case of Attorney General v. Pearson, 3 Mer. 411, and 7 Sim. 290, or the principles laid down by the Chancellor, Lord Lyndhurst, in Attorney General v. Shore, in a note to the latter case. The answer of the defendants in the former case contains reasons much more satisfactory to my mind, than the opinion of Lord Cottinghara, or Lord Lyndhurst. No satisfactory answer was, or has been, given to the inquiry proposed by the counsel in that case, that, if the chancellor could decree what doctrine should not be taught, he might, with equal pro *555 priety, declare what doctrine should be taught. I apprehend it would not be a question of easy solution, on the doctrine of those cases, to determine what deviations from the creed of a founder of a charity for religious uses should be considered a violation of the trust. Most religious societies have been, at times, divided on questions arising out of their articles of faith, and have altered them in many particulars, — by some deemed unessential, and by others essential. The situation of our country, our constitutional provisions in relation to religious freedom, forbid, that the authority of those cases should be here recognized. In the present case, however, as I have already remarked, we see no reason to doubt, but that the testator might have adhered to either of the parties, which now divide this congregaticm ; and there is nothing, either in the will, or the testimony, which can lead to any doubt, or uncertainty, as to his views.

There is still remaining a question of importance in this case, which has been elaborately argued, and to which the attention of the court has been directed, that is, whether, according to the rules of discipline of the associate church, Mr. Pringle has been properly suspended and deposed from the ministry. It seems to be necessary, that the court should decide this question, as it may be and has been claimed, that, if he is regularly deposed, the avails of the legacy in question ought either to be decreed to the minority adhering to the synod, or divided between those who adhere to him and those who adhere to the synod. The court approach this question with some diffidence, as we have not the aid of previous acquaintance with the rules of church government and discipline recognized in this denomination of Christians and as the cases, which may be found in our English reports, have no relation to ecclesiastical organization and proceedings, as they exist in this country.

But examining the proceedings of the judicatories, which have been had in the case under consideration, by the rules applied to ecclesiastical courts in Great Bridan, we should, without much hesitation, come to the conclusion, that the proceedings, which have been had in relation to the presbytery of Vermont and Mr. Pringle, are irregular, arbitrary and wholly void. To excommunication in England certain civil disabilities are attached. To aid in carrying into effect a sentence of excommunication, a writ de ex- *556 communicato capiendo may issue out of chancery, which has been said by some to be a writ grantable ex debito justitice, by others ex gratia. This writ is said to be a liberty, or privilege, peculiar to the church of England, above all the realms of Christendom, as being more sure and effectual, than any other aid of the secular power afforded elsewhere. When a person was taken and in custody on such writ, the regularity of the proceedings of the court passing such sentence might be inquired into on habeas corpus; 1 Salk. 293; and the party be relieved, if the proceedings were irregular. In 12 Co. 76 it was held, that, if a man be excommunicated by the bishop wrongfully and against law, he shall have a writ out of chancery, directed to the bishop, commanding him to assoil him, that is, to release, or absolve him. Tn the case of Beaurain v. Scott, 3 Camp. 388, the defendant, as Vicar General of the Bishop of London, had excommunicated the plaintiff for not appearing as guardian ad litem to his son. For this excommunication an action was sustained against the defendant, notwithstanding he acted as judge of the ecclesiastical court, because the court had no authority to compel the plaintiff, against his will, to be guardian ad litem, and also for some irregularity in their proceedings. On these questions evidence was given, and the effect of the evidence left to the jury. In Beaurain’s Case, 16 Vesey 346, the court of chancery sustained jurisdiction of a motion for a writ to issue to the bishop, commanding him to absolve a person, who had been excommunicated for a cause, for which, by the law, they had no authority to excommunicate. These cases show, that the proceedings of an ecclesiastical ■court in England may be examined into collaterally, and that the sentence of such court is not as conclusive, as has been claimed for the adjudications of the synod in this case.

The effect of the sentence of church courts, in eases evidently within their jurisdiction, has lately been much discussed in cases arising out of the acts of the General Assembly in Scotland. The Kirk is the established church of Scotland, — the jurisdiction of their judicatories was conceded, or confirmed, by act of the Scotish Parliament, at an early day, and was confirmed by the act of Union. If a person disobeyed their order, the aid of a civil‘court, the Lords of Sessions, might be obtained, to put him to the horn. Stewart of Pardoyan 227.. The decisions of these church courts like the *557 decisions in common law reports, form a body of ecclesiastical law, which would be recognized in the other courts. The collection of Stewart of Pardovan, so often referred to, like the writings of canonists, would be received as authority, probably, in those courts. These judicatories derive their authority through the acts of the civil legislature; and in this respect they stand on the same foundation, as the church in England. It was claimed for them, that their General Assembly was a superior co-ordinate ecclesiastical court, — that they had a right to judge absolutely and without control, and exclusively, on all subjects, which they held to be within their jurisdiction. Their claim, however, was rejected and entirely repudiated, both in England and by the courts of Scotland. In the case of the Presbytery of Auchterarder, which came before the Lords of the Sessions, and, on appeal, to the House of Lords, in 1839, the act of the presbytery, in rejecting a person presented to them to be ordained, in pursuance of what was termed the veto act of the General Assembly, was declared to be ultra vires and consequently void. In the Strathbogie case seven ministers were deposed by a presbytery, for having, among other things, applied to the civil courts for redress against an illegal and incompetent sentence of suspension, pronounced by the General Assembly; the seven deposed ministers instituted proceedings in the court of Sessions, to test the validity of this act of suspension. The power and jurisdiction of the ecclesiastical courts was much examined, and the claim to have their sentences ultimate and final, or, in the language of Lord Karnes, “ in case of illegality that sentence is ultimate,” was declared to be exploded, and the court proceeded to examine the acts of the General Assembly, and pronounced them illegal and void, and afforded redress to the deposed ministers. Indeed, it is of the highest importance, that it should be so, and I can very cheerfully adopt the language made use of by the Lord President, “ that the doctrine, that courts of the church may exercise co-ordinate jurisdiction with the superior courts of justice, is one of the great engines, by which the power of the papacy was upheld, and its spiritual despotism extended over Europe” — “ the spiritual courts unite the legislative, judicial and executive functions,— the uncontrolled exercise of such a power would invest them with an authority the most irresistible and appalling, and consequently can never be tolerated in a free country.” *558 These cases show, that the proceedings of an ecclesiastical court in England and Scotland may be inquired into collaterally, and that, when they proceed illegally, even those who pronounced their decrees are not exempt from responding for any damages, which an individual may sustain in consequence of their illegal acts. And surely, if the proceedings of an ecclesiastical tribunal, known to the law, may be a subject of inquiry in the courts of Great Britain and Scotland, and the parties injured may have redress in the civil courts by action, the proceedings of any self-constituted ecclesiastical tribunal, not recognized as a part of our jurisprudence, may be examined, disregarded and declared void, whenever the subject comes before our courts of law, whether directly or collaterally. The proceedings of the synod, or of any other ecclesiastical tribunal in this country, as a court of the last resort, are not to be held conclusive and absolute, when they come in question in courts of law. Notwithstanding, therefore, the synod has affirmed a decision deposing Dr. Bullions and others, dissolving the presbytery of Vermont, and suspending their ministers, the regularity and effect of their proceedings may be examined, and be determined in courts of justice, upon the same principles, which subject the proceedings, either of inferior courts, or voluntary associations, to inquiry and adjudication. A very respectable portion of the ministers of the associate church consider, that the presbytery of Cambridge have proceeded illegally and arbitrarily in relation to Dr. Bullions, and in relation to the presbytery of Vermont, and on that account have felt called on, as a matter of duty, to withdraw from them, or rather, to consider the synod as departing from the standards of the church. Their opinion on this subject is entitled to a respectful consideration.

3. As to the proceedings of the presbytery of Cambridge in their dealings with respect to Dr. Bullions, which was the origin of all this difficulty. We do not consider it necessary to examine this subject very critically, as it may not be necessarily involved in the decision of the question before us; but yet, as it laid the foundation for the subsequent proceedings, we cannot entirely pass it over. The case of Dr. Bullions is before the courts of a neighboring State; the vice chancellor has made a decision, and though that decision may not accord with our views, yet it is not expedient, that we should examine the grounds, on which he proceeded, with critical *559 nicety. It is clue, however, to those who judged those proceedings erroneous and have brought themselves into difficulty in consequence thereof, and whose conduct in that particular is questioned in this case, that we should not withhold our opinion. There appears to us to be a radical defect in the conduct of the members of that presbytery in the trial of Dr. Bullions, and such a departure from judicial propriety, as must render their acts invalid, and no action of the synod can make them valid. To any and every court there must be actor, reus andjudex. If the judge becomes actor, or reus, it is plain there can be no impartial or regular judgment. In every trial for an offence, however trivial, the person accused is entitled to an impartial trial, by unbiassed judges, who have no hostility, or prejudice, against him, and whose judgment is unfettered by previous conceived opinion. This impartial trial by unprejudiced judges was not had in the case of Dr. Bullions ; but the rules of judicial propriety and fairness were wholly lost sight of by the presbytery.

It appears, that in October, 1837, the presbytery of Cambridge consisted of Rev. Messrs. Whyte, Stalker, Dr. Bullions, Anderson, Miller, A. Gordon, D. Gordon, Goodwillie and Pringle, nine in all, together with their ruling elders. At a meeting of that presbytery in October, 1837, at South Argyle, there were present Mr. Stalker, Dr. Bullions, A. Gordon, D. Gordon and Mr. Anderson. A complaint of Mr. Stalker against two members of the presbytery, viz. Rev. Messrs. Miller and Anderson, was heard. Dr. Bullions at that time made a remark, in which he insinuated, that some members present were unfit to sit in any court, or in this court, as understood by some of the members. In the course of their meeting Dr. Bullions may have made, and probably did make, some remarks and observations, which prudence would have required him to withhold. He was, by the moderator, silenced and deprived of the privilege of debate, and a censure of rebuke was voted against him, — three members of the presbytery not voting. The presbytery then voted,, that the execution of the rebuke be postponed, until the sentence imposing silence be removed. After a recess they removed the sentence imposing silence, and proceeded to inflict the censure of rebuke, — to which Dr. Bullions refused to submit; and, as he had a right to do, he protested and- appealed to the synod ; and thereupon he was suspended. It appears, that the members, of whom Dr. Bui *560 lions complained, were Messrs. Anderson, A. Gordon, D. Gordon and Miller, and the names were stated by him, before sentence was pronounced. At this meeting, these four ministers, together with Dr. Bullions and Mr. Stalker, were the only ministers present; and there were present four or five ruling elders. One of the ministers, Mr. Stalker, and two of the elders did not vote to censure Dr. Bullions ; the only persons, then, who voted to censure and suspend him, were the four individuals, of whom he was accused of saying, that they were unfit to sit in court, and two of the ruling elders. It appears from their minutes, that the vote, on the resolution to suspend him, was six for, and two against. Dr. Bullions protested against this decision, appealed, &c. To me it appears there was a decided objection to the vote, as it was passed by the very men, as to whom the insinuation by Dr. Bullions was made, and whose feelings, it is to be supposed, were, on that account, hostile to him. A sentence of suspension, passed under such circumstances, cannot be said to be pronounced by impartial judges, and to be deserving of consideration as a valid and effectual sentence. I will not say they were unfit to sit in that court, but it was highly improper, that they should sit in the case of Dr. Bullions; and no verdict of a jury, or sentence of an inferior tribunal, rendered by men situated as they were, would be sustained in any court in this State.

The congregation of Cambridge, over which Dr. Bullions was pastor, it seems, was not satisfied with these proceedings, and petitioned the presbytery to take into consideration the affair of Dr. Bullions; and accordingly a pro re nata meeting was called, and held on the fourteenth of November, 1837, at which all the ministers of the presbytery were present, and seven or eight ruling elders. At this meeting, we learn from the testimony, there was a majority in favor of restoring Dr. Bullions, agreeably to the prayer of the petition of the congregation of Cambridge, and, but for a proceeding wholly unwarranted and unprecedented in a regular court of justice, would have done so. A resolution was proposed, that Messrs. Goodwillie and Pringle should not have a seat in the proceedings of that meeting, on the ground of affinity <md partiality. To support the charge of partiality a most frivolous reason is offered. In order to carry this vote, it was attempted to exclude Mr. Whyte from voting, which failed. It was proposed to them to put the vote as to *561 Messrs. Goodwillie and Pringle, separately, and this was denied, though it is apparent their cases were not alike. In my opinion, Mr. Goodwillie was not then related by affinity to Dr. Bullions. The question was put on the resolution jointly, and, by the casting vote of the moderator, Mr. Miller, before named, the resolution was carried. By the exclusion of Messrs. Goodwillie and Pringle a majority was obtained, and a vote was then taken to exclude Mr. Whyte, which was also carried. Mr. Anderson says in his deposition, that he made the motion to exclude Messrs. Goodwillie and Pringle; that the proceedings against Dr. Bullions arose out of his allegation that four persons were unfit to sit in any court; and those same four ministers voted to exclude and did accordingly exclude Messrs. Goodwillie and Pringle from voting on that trial. After these votes, thus excluding three members, it is easy to anticipate, that the vote would be against the prayer of the petition of the congregation of Cambridge, and against restoring Dr. Bullions. These proceedings appear to me to be wholly unwarrantable.

Whether affinity is good ground for excluding members of a church judicatory from sitting in any case is a question, about which the witnesses differ ; and the practice has not been uniform. Stewart of Pardovan, p. 195, says, there may be á warrantable declinature against particular members, who are related by affinity. In the synod Mr. D. Goodwillie voted without objection, though standing in the same relation to Dr. Bullions as Mr. T. Goodwillie. But the objection should not proceed from the court, but from either the accuser, or defendant. Whatever may be said on the subject of Mr. Goodwillie’s and Mr. Pringle’s voting, the objections are stronger and more forcible against Messrs. Anderson, Miller, and the two Messrs. Gordon. However they may have satisfied themr selves of the distinction between an informer and accuser, so as to justify them in voting in this case, the distinction is too subtle, if not jesuitical, to receive countenance herd. They were truly actor and judex.

■ I have no hesitation in saying, that these proceedings, by which1 the minority transferred themselves into a majority, and that major-' ity consisting of the persons against whose sitting in that case there were such strong and unanswerable objections, vitiate and render void the proceedings of the presbytery of Cambridge in relation to, *562 Dr. Bullions. There is more similitude to the proceedings of parties to obtain political ascendency, than to the sanctity and deliberate judgment of an impartial judicial tribunal. In my opinion these proceedings and determinations in regard to Dr. Bullions were not warranted by the books of discipline of the associate church, are void, and none the less so, though they are confirmed by the synod, where, as we may reasonably suppose, parties would be formed on this very subject. If the other five members of the presbytery, including Dr. Bullions, had availed themselves of their ascendency, and on their own motion, and not at the request of the accused, voted to exclude the four members above mentioned, it would have been an unwarrantable and unjustifiable proceeding; but not more so than the exclusion of Messrs. Goodwillie, Pringle and Whyte. For Rev. Mr. Stalker’s proceedings in this trial of Dr. Bullions, and the speech he delivered in his defence and against the presbytery, it appears, from the evidence filed in this case, that, by the same presbytery, he was deposed from the ministry at a subsequent sitting. The presbytery of Vermont would have been justified in treating Dr. Bullions as a regular minister from another presbytery and receiving him, as such, without inflicting any censure.

The proceedings in relation to the presbytery of Vermont are, in our opinion, still more unwarrantable. In examining them we must look, for the power of the synod, to the book of discipline marked K, established at Pittsburgh in June, 1817, as the only book then formally adopted by the Associate Synod. The whole power of the synod is stated in the fifth article. The book of discipline marked C C was not then in force, nor was it adopted until 1843, (Anderson’s deposition,) after this suit was instituted and after the secession of the presbytery of Vermont. It is a principle of universal jurisprudence, that laws, civil and criminal, must be prospective and cannot be retro-active. Dash v. Van Kleeck, 7 Johns. 477 . Hence, if an act is committed, which is not criminal by the existing laws, or which cannot be tried and adjudicated upon by reason of some defect in the organization or constitution of a judicial tribunal, or if an evil is of ever so great magnitude, yet, if, through defect of legal provision, or want of power, it cannot be reached by the existing laws, this defect cannot be aided by any legislative procedure whatever; and,, if this, is true of civil or criminal proceedings, it is *563 more necessary, that it should be so in any ecclesiastical proceedings, — more especially, as they have no other power, or authority, than what is voluntarily conceded to them. The book of discipline adopted in 1843, marked C C, may be referred to in proceedings for things which may have transpired subsequent to its adoption, but not for any thing previous.

According to the conceded power of the synod to erect new presbyteries, — Book of Discipline (K) art. 5, p. 13, — in June, 1838, on the application of the presbytery of Cambridge, and not on the application of the members residing in Vermont, as testified to by Mr. Reid, a new presbyter}'' was erected in Vermont, including all the ministers and elders residing within the bounds of the State of Vermont. This decision of the synod was acquiesced in by the members residing in Vermont, and accordingly the presbytery was organized and constituted according to the forms, rules and regulations of the associate church. This power of the synod to erect new presbyteries is rather a legislative than a judicial power, but one which the increase of the church may render necessary ; and accordingly it is conceded to them ; but no such power is given to dissolve a presbytery against their consent, and it is of so dangerous a'character, and so fatal to the freedom and independence of churches, as well as destructive of individual, freedom, that it ought not tobe granted, or exercised. It, in effect, enables the synod to exercise uncontrolled authority, and to do acts of the greatest injustice and oppression, without any possibility of redress. If they can dissolve one presbytery, they may dissolve all but one.

Nothing but a clear and explicit grant of such a power could warrant any attempt to exercise it. This grant is wanting in their adopted book of discipline ; and it will not do to found it on necessity, which is the tyrant’s plea, or on the doctrine of development, or implied power, which has been made the ground of introducing great errors in other churches, both in faith, doctrine and discipline. The power given them of erecting new presbyteries was necessary and proper; but I cannot conceive that it implies a right to annihilate a presbytery, and transfer its members to the jurisdiction of another, with whom they might not be connected by State limits or cordiality of feeling. It was well observed in the argument, that the Congress of the United States, who have power to admit new *564 states into the Union, might as well call a refractory State before them and annihilate and dissolve it, as for the synod to’annihilate the presbytery of Vermont, and transfer its members to the presbytery of Cambridge, ut agnem lupo committere. The presbyterj of Vermont may have proceeded illegally in restoring Dr. Bullions, while he resided without the territorial bounds of their jurisdiction, although I do not pretend to say, that territorial limits are always to be regarded in licensing to the ministry, or receiving a minister from another jurisdiction, or from a foreign one; and it is not necessary that I should investigate it here; but, if they exceeded their powers, the act was void, and Dr. Bullions remained as before.

By virtue of the authority in the synod “ to redress whatever was done contrary to order,” they might say, that this deed was null and void from the beginning, and if so, it did no hurt to any one. This, I apprehend, was all, which the synod was required to do in the case, in the absence of the presbytery of Vermont.

We consider, therefore, that the presbytery of Vermont have not been regularly dissolved by any power authorized so to do, and Mr. Pringle has not been lawfully deposed. There are other errors and improprieties in the proceedings of the synod which would prevent its having any binding obligation/ Their resolution on the relevancy of the complaint, denouncing the act of the presbytery of Vermont as a solemn mockery, a violation of their ordination vows, &c., in terms of virulent and unmeasured severity, when the presbytery had no notice to appear, and when they were not present, was irregular and cannot be countenanced in any court of judicature, professing to do equal and impartial justice. The impropriety and injustice of their deciding on the relevancy of the libel, without the parties being heard, is too apparent to require any elucidation. A libel, like an indictment, involves necessarily a question of law, as well as a question of fact; of law, whether the acts done constitute an of-fence ; of fact, whether the person accused has done those acts with such an intent as to render him guilty. On both these questions the accused may be heard; the Book of Discipline (K,) p. 47, is very explicit on this point, and those who are to try, must have the power to decide both. Any attempt to separate these questions, and abstract either from the tribunals who are to determine the guilt, <or innocence, of the party accused, or to prejudge either, must meet *565 with a signal rebuke, as was the attempt made in the last century to separate the question of law and fact in courts of law on trials for libels. The right as well as the duty of a jury, to decide the law and fact in criminal cases, has been established unalterably, in my opinion, except by the legislature.

The synod, in 1839, when they adopted the resolutions in relation to the presbytery of Vermont, evidently lost sight of this plain principle of jurisprudence, that no person is to be condemned unheard ; and, by prejudging the conduct of the presbytery and its members, rendered themselves incompetent to sit in judgment upon them. It was as palpable a departure from judicial usage, and as great an infringement of private right, to prejudge and determine the law of an individual case, as it would be to prejudge and determine the facts. The presbytery of Vermont, if they erred in their determination in relation to Dr. Bullions, may have acted on good motives and erred without any intention to be disorderly. The resolution condemned their acts as a contempt of the synod, as a solemn mockery, and attributed to them the intent to be disorderly, and, in effect, decided and declared their guilt and contumacy, without any trial. Their authority to sit as a court, after this, might, with the strictest propriety and according to the rules of justice; be declined.

The act of the synod in 1840, which was but a continuance of the proceedings of 1839, can stand upon no better foundation, and was in fact a necessary result from the former proceedings. I think proper to remark in relation to their farther acts, that I can find no authority for the appointing a commission to receive the submission of the presbytery of Vermont. It was transferring to this commission the duties and the powers which properly appertained to the synod only. A committee might be appointed to execute the decrees of the synod in some cases, as we learn from the book before mentioned, Stewart of Pardovan. Whether this commission was of the character required in that book, is more doubtful. There were, in this, committed to the commissioners, judicial and legislative powers, — that is, to call the presbytery of Vermont before them, and to restore or dissolve them, as they might judge proper; they of course were to judge, whether their submission was satisfactory, or not. This was a delegation of judicial authority, which, I appre *566 hend, was not warranted by any known rules of discipline of the associate church. Neither do I find any authority in the synod to suspend, or depose, ministers, unless it be in a case, which comes before them by appeal, — when it is said they have authority to end the controversy. Here was no offence committed in the face of the synod ; the presbytery, or its ministers, had done an act declared by the synod to be null and void from the beginning, — whether from an error in judgment, or from bad motives, did not appear, — when the synod suspended them. Moreover, I think, from comparing the power of the presbytery, as found in the Book of Discipline (K,) art. 4, p. II, with the article concerning process against ministers, art. 7, p. 53, that all proceedings against ministers must commence and be first determined by the presbytery, and that the synod has only appellate jurisdiction. If the book of discipline was not sufficient to meet a case, where all, or a major part, of the members of a presbytery were involved in a complaint, the synod might make provisions for such cases in future, but not to have any effect on the past. No action was had against Mr. Pringle in the presbytery. In every view, which we can take of the proceedings, we consider the act of the synod in dissolving the presbytery of Vermont, setting its members over to the jurisdiction of the Cambridge presbytery, suspending the ministers, and finally deposing them, by the presbytery of Cambridge, as void and inoperative from want of authority and from the irregularity of their proceedings, and that Mr. Pringle still remains a minister in regular standing, pastor of the congregation of Ryegate.

Whether the act of the presbyteries of Vermont and Albany, in the meeting which was held in Cambridge, in June, 1841, was expedient, or not, is not for us to determine. The synod had excluded and dissolved them. In no other way could they proceed. They could not compel the synod to receive them again. By thus forming a new association, they did not thereby forfeit their presbyterian character ; and the reasons for secession from the prevailing party in the associate synod are certainly powerful; and the right thus to separate, acting according to the dictates of their own consciences, and on the principles of the word of God, cannot be questioned, when we remember the origin of the associate church, in 1733. To us, as a court of law, the synod, which met in Cambridge, in 1841, *567 was as legitimate a body, and as regular a church judicatory, as the synod, from which they were driven. It is fortunate in this country, that persons may thus separate without forfeiting any civil right.

As a result of the whole case, we come to the conclusion, that this legacy was for the benefit of the Associate Congregation of Rye-gate ; that Mr. Pringle is their regular ordained minister, and has never been regularly deposed, or suspended, from the ministry, by any tribunal having authority so to do ; and that he has forfeited no right, or privileges, which he acquired by virtue of and in consequence of his ordination. The congregation of Ryegate are entitled to this legacy, the interest of which is to be appropriated for the support of their minister.

In the decision of this case we have endeavored to conform our decision to the principles of law, as they are applicable to our State. If we have recognized no ecclesiastical jurisdiction, it is because none such exists here; and it certainly will contribute to our peace, that there is no such jurisdiction in this State. . Every one is at liberty to regard Dr. Bullions and Mr. Pringle as regular or deposed ministers, may receive or refuse the ordinances of the Gospel from them, and may submit to or decline their spiritual character as pastors. We consider Mr. Pringle as the regular minister of the congregation of Ryegate, according to the laws of this State, and do not recognize the proceedings of any of the church judicatories, as dissolving that relation ; and while he and the majority of his society are united, no legitimate power, or authority, has been exercised, to sunder that connection. All the persons, who have been actors in the transactions, which we have been called upon to review, were probably actuated by good motives and a-sincere desire to do their duty. Of those with whom we are acquainted, we know that they are sincere, devoted and pious men. The whole difficulty, which has' been so disastrous in its consequences, both here and elsewhere, has arisen from the attempt to exercise an authority., where none is possessed ; to assume powers of a legislative and judicial character, which are not given; and to claim for them attributes and effects, which can only belong to tribunals having a legal existence under the supreme power of the State, and which can in no way belong to any voluntary society or organization whetever. And, as is too often the case, when men feel power, though they have it not, they *568 forget right. Associations and societies become divided into parties and resort to any means, whether justifiable or not, to obtain an ascendency, and avail themselves of that ascendency, to bear down and annihilate all who do not submit to their authority. The various proceedings, upon which we have been called to animadvert, appear to have proceeded too much from a party ascendency, acquired by not the most laudable means. This view disposes of the material points, which are in controversy in this case, and entitles the orator to the relief prayed for.

There are, however, other objections, rather of a technical character, which have been urged, and which we must consider.

1. It is contended that the orator, as treasurer of the society, cannot maintain this bill; the bill, however, is brought for the benefit of the Associate Congregation of Ryegate, and in their behalf. We think any members of the congregation, in behalf of the whole, and particularly the treasurer, whose duty it is to receive and disburse the moneys appropriated for the support of their minister, may institute a suit in their behalf, if the suit is recognized by them. As this objection is only in the nature of a dilatory plea, we should not be disposed to decide against the orator at this time, when the parties have prepared themselves and been fully heard on the main subject in controversy. The interest of the legacy should of right have been paid to the treasurer of the congregation. If there were any difficulties, or doubts, on this part of the case, the decree might be so framed as to obviate them.

2. It is urged, that the legacy had been paid by the defendant, before the commencement of this suit, to the trustees authorized to receive it. We, however, find the fact to be otherwise. The interest, at all events, should have been paid by the defendant to the orator, as the treasurer of the congregation, the principal only to be paid to trustees. The trustees, to whom the payment was made, were not the trustees of the Associate Congregation, nor the persons designated in the will as the trustees, in whose hands the legacy was to be placed, but the trustees of another incorporated society. The legality of the election of these trustees of the society is more than doubtful. The society had become divided into parties, in relation to this subject in dispute. Before the appointment of trustees was made, there was a motion for an adjournment, which was nega *569 tived by three or four votes at most; and it is manifest, that, at that time, several votes were received from persons, who had not become members. Of the thirteen persons who signed the articles on that day, who were opposed to Mr. Pringle, and who evidently were procured, to give a party ascendancy in the election of trustees, none had become members by signing the articles, when the question of adjournment was put; but for their votes, the meeting was adjourned by a majority of the then existing members. The court could not, with propriety, commit the execution of this trust, and permit the payment of the funds, to persons thus elected, and evidently hostile to those, for whose benefit it is to be secured. The legacy should be paid either to the trustees elected by the congregation on the 15th of February, 1843, or to others to be selected by the chancellor.

The decree of the chancellor is reversed, and a mandate will issue to him to enter up a decree according to these views.