control. But it did not. It went rather to confirm than to diminish their existing rights. The act, to be sure, incorporated the deacons; but it virtually incorporated the churches over them with (as C. J. Parker expresses it) "supervisory powers."* For, in the first place, the deacons are but the servants of the church, who can be appointed or removed at pleasure. And then, while in office, they cannot "alienate any lands belonging to the church" without its consent; necessarily implying that the church still retains a legal hold upon its lands. And besides, the church is expressly empowered "to choose a committee to call the deacons to an account; and if need be, to commence and prosecute any suits" against them; and also "to advise and assist them in the administration" of the church's affairs.-This act was obviously intended, as it actually goes, to confirm the corporate powers of the churches; to protect them in the exercise of their legal rights; and to increase, if possible, the security and certainty, that their property shall descend in uninterrupted succession, and never be wrested from their hands.

The act of which we have been speaking, constructed with so much care and wisdom for the security of the churches, was revised and re-enacted, Feb. 20, 1786, and is now a law of the Commonwealth. Its operation was uniformly happy, and (so far as we know) entirely satisfactory to the churches, affording them all the security they desired, until interrupted by some late decisions of the Supreme Judicial Court-the same to which we have already referred, as depriving the church of its right in the choice of pastor. See number for February, p. 73.

Says

These decisions bear upon the rights of the churches, in both cases, in the same way, viz. by denying their independent exis-' tence, and making them the mere appendages of a parish. Chief Justice Parker, "The only circumstance which gives a church any legal character, is its connexion with some regularly constituted society." "A church cannot subsist, without some religious community to which it is attached." "As to all civil purposes, the secession of a whole church from the parish would be an extinction of the church; and it is competent to the members of the parish to institute a new church, or to engraft one upon the old stock, if any of it should remain; and this new church would succeed to all the rights of the old, in relation to the parish." "If all the members of a church should withdraw, leaving not even the deacons, or members enough to elect them, it might be necessary to apply to the Legislature, to appoint some new trustee of the property, until a new church should be organized within the parish. But where members enough are left, to exe

* Mass. Term Reports, vol. xvi. p. 501.

† Is not the power here given to churches complete proof, of itself, of their corporate existence? They may, by their committee, “commence and prosecute any suits."

cute the objects for which a church is gathered, choose deacons, &c., no legal change has taken place; the body remains; and the secession of a majority of the members would have no other effect, than a temporary absence would have upon a meeting, which had been regularly summoned."*

These quotations, to which others of a similar import might be added, are sufficient to exhibit the doctrine which is now held, and which has the force of law, in relation to this subject. It is substantially this: A church, when once connected in public worship with a town or parish, cannot, but by extinction, be disconnected. It cannot, as a church, withdraw. It may become, in conscience, dissatisfied with the connexion; may vote to dissolve it; and its members, in a large majority, may leave the parish; but they leave it only as individuals; the church, with its property, remains. Indeed, the members may all go, and go by solemn vote; but in this case, they die as a church; their property, however expressly given and secured to the church, is left to the parish; and this "is competent to institute a new church," which may be more obsequious to its wishes, and "will succeed to all the rights of the old."

In examining the doctrine here stated, we shall, first, notice the arguments, by which it is thought to be supported, and, secondly, those which go, in our opinion, to refute and overthrow it.

1. It assumed by Chief Justice Parker, that in the early settlement of this country, "there was no very familiar distinction between the church and the whole assembly of Christians in the town. Almost, if not quite all the adult inhabitants were, at this time, church members; and a grant to the church, under such circumstances, could mean nothing else than a grant to the town." “A person, intending to give property to pious uses, within the first half century after the migration of our ancestors, would denominate the donees the church-meaning the whole society of worshipping Christians."+

In support of the opinion here expressed, Chief Justice Parker adduces several considerations; as,

(1.) The practice of the primitive churches, which our fathers, he says, designed to imitate. But is Chief Justice Parker sure that there was no distinction in primitive Christian times, between the church and the congregation? We have proved, conclusively, that there was such a distinction, (see number for February, pp. 57-60.) and the proof of it need not be here repeated.

(2.) He refers to the practice of Congregational churches, "before the migration of our fathers to this country," intimating that in them, the distinction between church and congregation did not exist. We have inquired particularly into this subject, and have

shewn, that in the first Congregational churches of England and Holland, the distinction in question did exist. See Feb. number, p. 63. These churches were formed by covenant, and consisted of such, and such only, as made a public profession of their faith.

(3.) In support of the opinion under consideration, Chief Justice Parker quotes some sentences from Mr. Wise. It is remarkable that the authority of Mr. Wise should be relied on, as he wrote almost a hundred years after the settlement of the country. But the testimony of Mr. Wise will be duly appreciated, when it is known, that the avowed object of his work was to vindicate and enforce the Cambridge Platform. Accordingly, he quotes from the Platform, with high approbation, the following definition of a church. "A Congregational church is a company of saints by calling, united into one body, by a holy covenant."*

(4.) Chief Justice Parker infers, since church membership was essential to the rights of a freeman, that "almost, if not quite all" the early settlers of Massachusetts were members of the church. We have shewn already, that all the first settlers were not members of the church; and in some places, not even a majority were such. See Feb. number, p. 61. But suppose they were so. This would not make the church the town, nor the town the church. The town was a civil body, established for municipal purposes. The church was an ecclesiastical body, established for strictly religious purposes. All who lived within certain prescribed boundaries, were inhabitants of the town. All who entered into solemn covenant, and made a public profession of their faith, were members of the church. Never, in this country, was the distinction wider between church and town, than during the first fifty years after its settlement. A grant to the church, at this period, would mean anything, rather than a grant to the town. No person in his senses, intending to give property for pious uses, could mistake

the one for the other.

It is the more remarkable that Chief Justice Parker should hazard the assertions he has made on this subject, since the distinction between church and town is expressly recognized in the grants to the church in Dedham-the very grants on which he was commenting. In a grant of the proprietors, made in 1642, "forty acres at the least, or sixty acres at the most, were set apart for public use, viz. for the town, the church, and a free school." And in 1660, there was a grant made from the town "to the church.”+ Yet the Judge would have us believe, that, in the early settlement of our country, "there was no great distinction between the church and the town," and that "a grant to the church, under such circumstances, could mean nothing else than a grant to the town."!!

* Wise's Vindication, &c. p. 8.

+ Mass. Term Reports, vol. xvi. p. 489.

VOL. I.

16

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 exclusive 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."‡ 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 number 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 Ibid. p. 501.

* Mass. Term Reports, vol. xvi. p. 496.

+ Ibid. p. 491.

my own, but merely held in trust, for the benefit of the objects of my previous bounty?

But we will admit, for the sake of argument, what is probably more than the truth, that the property of the church in Dedham was originally and exclusively designed for the support of public worship. Still, it must have been designed to be expended under the direction of the church, and for the support of such worship as the brethren should approve; and the parish would receive benefit, only as they were willing to unite in the worship of the church. This, undoubtedly, was the way, in which the parish originally came to be benefitted by the church's appropriation of its funds. The church instituted their worship, and others came and united with them in it, and consented to assist them in supporting it. But this furnishes not a particle of evidence that the church is a mere trustee for the parish. Indeed, the whole proceeding implies the contrary.

To the supposition, that the church is, and was designed to be, a trustee for the parish, there are, in our view, insuperable objections; and especially so, on the ground taken by Chief Justice Parker, that the church is not a corporate body, and "not capable of holding property in succession."* If the property of the church was originally intended for the benefit of the parish, why, we ask, was it not given to the parish? The parish, certainly, is a responsible body; and what need of any trustee in the case? And if a trustee was needed, why, in the name of reason, was such a body as Chief Justice Parker conceives the church to be, constituted the trustee? Why trust one body with property, for the benefit of another which is incorporated, when the body trusted has no corporate powers, and is "incapable of holding property in succession?" This is like making the minor trustee for his parents, or the ward for his guardian, or the woman for her husband. Nor is this all the absurdity of the supposition. By the statute of 1754, the deacons are undoubtedly put in trust for the church, and the church may call them to an account for the manner in which the trust is executed. Here, then, according to the doctrine of the Judge, we have the deacons. trustees for the church, and the church a trustee for the parish! A most singular state of things truly! Especially, when we consider that the parish is a perfectly responsible body, capable of holding and managing property to any reasonable amount, and of all others least needing a trustee of any kind.

3. Chief Justice Parker insists that his views of the church are "conformable to the usages of the country; for," says he, "although many instances may have occurred, of the removal of church members from one church, or one place of worship, to another, and no doubt a removal of a majority of the members has sometimes

* Mass. Term Reports, vol. xvi. p. 497.