Miller v. Gable

2 Denio 492 | N.Y. Sup. Ct. | 1845

Hoffman, Assistant Vice Chancellor.

The elaborate and able arguments on behalf of the complainants, which have been made upon the hearing and rehearing of this case, may be arranged under the following positions. 1. That the union of the church in question with the Reformed Dutch Church was indissoluble ; that it involved permanent submission to the ecclesiastical jurisdiction of that church ; and that the property could only be used by those who submitted to that jurisdiction, as well. as held the same tenets. Of course, the success of this proposition would settle the case in favor of the complainants, the law and facts being then very plain. 2. That the union with the Dutch Church, after its resumption at a given date, has never been legally dissolved ; that a majority of the trustees and congregation were in 1837 actually in favor of its continuance, and that the alleged rescisión by the congregation was illegally obtained. 3. That the property is to be treated as dedicated by the founders to the support of the tenets of the Dutch Reformed Church ; if not in express language, yet necessarily, inasmuch as the tenets of the Dutch Reformed and this German Reformed Church were the same; and as a branch of this proposition, it is contended that at least it must be treated as dedicated to the teaching of undoubted Calvinistic doctrines, which obligation the defendants have violated. 4. And lastly, that at least a portion of the property, being equal to the avails of the Nassau-street lots, must be decreed to belong to the complainants.

1. As to the first point, the case is this. An independent congregation, under the style of the “ German Reformed Congregation of New-York,” existed and worshipped in the city of New-York prior to the year 1763. It had its pastor, elders and deacons. When it was first established, and in whose name its property stood, does not appear in evidence. It had incurred debt, and had voted to a previous pastor the sum of £150 per annum, when such debt should be removed. In the year 1763, this congregation decided to ally itself with the Dutch Reformed Church then established in the city, and to be subject to its ecclesiastical jurisdiction. They thereupon, by a formal vote, united themselves with the Classis of Amsterdam, or Synod of North Holland, to, which the Dutch Reformed Church in this pity was subject. In 1772, the Dutch Church in the United States separated, so far as absolute authority is concerned, from the ecclesiastical jurisdiction of Holland, and established a general system of church judicatories in this country. The church in question was represented at that assembly, and assented to its acts. It became attached to the Classis of New-York, and was represented in it from that time to the breaking out of the war.

I pause at this point—because the complainants’ case in the aspect now considered, is vastly stronger than at any subsequent period. "What would be the decision if the cause had arisen in 1782 upon these facts, or was now to be decided upon them ? I think there is a plain distinction in sound reasoning, and supported by authority, between the dedication of property to support peculiar tenets, and its dedication to support such tenets in connection with and subjection to a particular church government. The union in 1763, and its continued connection under the new organization of 1772, could not of itself so‘bind the property to a connection with that government, as to render a rupture a forfeiture. The distinction which meets the argument of the complainants’ counsel is this: A regular Dutch Church, tuiginally formed as a branch of the main body, or in subordination to its church government, as a Dutch Church, cannot weak off from that government arid discipline without losing the /ery character of a Dutch church. A church avowedly independent in its origin, may form a union, the breach of which inly restores it to its former position. But the decisive answer is this—property may be given to the support of tenets, without subjection to any ecclesiastical power which upholds these tenets. It must be shown, that it was given for promulgation of the one, in subordination to the other. Supposing in this case, that it was dedicated to the support of the identical tenets of the Dutch Church, it was not given to those only who should obey the Dutch Church’s judicatories. Suppose property given to support a succession of pastors, belonging to the Reformed Dutch Church of North America—a pastor who disobeys or disclaims the ecclesiastical power "of that church, is as clearly excluded from the gift, as if he preached Arminianism or Unitnvianism. Suppose property given to A. and B. and their successors, trustees for the Dutch Reformed Church situated in a particular place, or, as in The Dutch Church v. Mott, (7 Paige. 78,) to trustees for the common use of the ministers, elders and deacons, of the Low Dutch Church in the city of New-York. If those claiming to share the fund do not submit to the government of the church as it then existed, or as changed by legal authority, their very identity, the character which alone gives them a right, is lost. But take a case, such as the provisions of the deed in the case referred to"supplies, of a grant to trustees for the support of the ministers who shall have charge of a church in a given place, and shall hold the canons of the Synod of Dort. Even if that congregation was then a regular Dutch Church in full subjection, but not so designated in the deed, I apprehend that a separation would not avoid the gift for those who adhered to the tenets. But, unquestionably, if it had been an independent church, and had formed an union with the Dutch Church for its better government, an union in its nature dissoluble and repeatedly broken, not a doubt could exist. The property never has been given, so far as any dedication is shown, to trustees of a German Reformed Church, or for its use, in subjection to an ecclesiastical body. That subjection indeed existed, but not a word of express language, and nothing of just inference, indicates the intention of the givers, that it should be perpetually held in that subjection.

But how irresistible does this argument become, when yve regard the acts of this church, and the passive submission almost amounting to assent, of the classis in 1784. The very property now in dispute was purchased, when the congregation had solemnly declared its alliance with the Dutch Reformed Church at an end; when the body which held and governed its tempor ralities was organized contrary to a material regulation of that church, making its officers as to spiritual and temporal matters nearly identical; and when the deed, under which this property is held, vests it in “ Trustees of the corporation of the German Reformed Church in the.city of New-Yórk, and .their successors. trustees as aforesaid.” • It must be remembered that after the war an application was made for a resumption of the Union. The classis did not pretend that this connection had subsisted during the war in right and law, though in fact interrupted, but they invited a restoration of the alliance, and the church deliberately refused, and avowed the intention to hold itself forever independent. This was followed by a marked and material deviation from a regulation of the Dutch churfch. By its constitution, the minister, elders and deacons in one board have charge of the temporalities. Accordingly, the appointment of trustees under the first act of our legislature respecting religious societies, was, it is stated, almost unknown, and esteemed irregular. Indeed it necessarily must have been so. And both in this state and New-Jersey, a special act was passed, out of respect to this regulation, constituting the minister, elders and deacons the trustees, and making them a corporation upon their filing a certificate of their name and title. (3 R. S. 207; 7 Halst. Rep. 206.) Now this church, at the very time of declaring its independence of the classis, proceeded to elect trustees under the general act, who have always since remained a body distinct from the consistory. I need but glance at the subsequent relations of the church as to ecclesiastical supervision. From 1784 to 1799, it remained disconnected and independent of the Dutch Church. From 1799 to 1805, the union was kept up. It was interrupted entirely or partially, until 1812. From that time to early in 1823, it subsisted. Then difficulties arose, and at the very period when part of the proceeds of the sale of the Nassau-street church were used in building the present church, this severance existed. In 1825 a committee of classis reported that an attempt to re-unite the church with that body would be unavailing. From that time until 1837, the connection was severed. Then the difficulties arose from which the present suit has sprang.

There are two cases which bear strongly upon the"question now discussed, and one of them appears td me to be decisive. In The Presbyterian Church v. Johnston, (1 Watts & Serg. 1,) the terms of the grant were “ in trust for and as a site for a house of religious worship, and a burial place for the use of the religious society of English Presbyterians and their successors in and near the town of York,” &c. The congregation of York subsequently became incorporated. The ecclesiastical connection of the congregation was with the Carlyle Presbytery up to about 1838. After the breaking up of the Presbyterian church into two organized bodies, each claiming to be the general assembly, a resolution was adopted, declaring it inexpedient for the present to recognize the jurisdiction of any of the conflicting church judicatories. A minority of the congregation thereupon withdrew, and elected the plaintiffs in the suit, trustees, who brought the action to recover the lands. The majority remained in possession, and also elected trustees, who were the defendants. In the court below, Hays, president, delivered the opinion. He says, “ The only guide as to the rights of the members or the corporation, are the deed and the charter. In the deed there is not one word pointing to the ecclesiastical connection of the persons for whose use the land was conveyed, with the Carlyle Presbytery or any other. The congregation must enjoy the land granted in subordination to the uses described in the deed. The charter cannot change the effect of the grant. The grant is a contract, the obligation of which cannot be impaired by any authority.” The court then examined the legality of the election of the defendants as trustees, and held that it was according to the charter and lawful, and that no others could regularly be trustees. And it held distinctly, that the want of an ecclesiastical connection and superior church government, did not impair the rights of the trustees; there being no recognition in the deed of any special or particular church government. I have stated the main points of the opinion of the court below. The affirmance in the supreme court was substantially on the same- ground, viz. that no particular Presbyterian connection was prescribed by the founders. Chief Justice Gibson observes, that subjection to a particular judicatory may be made a fundamental condition of a grant. He refers to the case of Duncan v. The Ninth Presbyterian Church, in which a trust was declared “ for such congregation of persons as shall belong to the present Reformed Synod, to which the Rev. Robert Amand’s church in Spruce-st. belongs.” He says the case was settled; but he had differed from some of his brethren who thought the congregation had not lost the property in the trust, by putting off its distinctive character, and merging itself in the mass of the Presbyterian church. Even without an express condition, it might be a breach of a compact of association, for the majority of a congregation to go over to a sect of a different denomi nation; the majority of Seceders could not carry the church property into the Presbyterian connection, although these two sects have the same standards and plan of government.

The decision and able opinion of the court in Den v. Bolton, (7 Halst. Rep. 205,) support the distinction I have taken. The land in that case had been conveyed to the “ Minister, Elders and Deacons of the Dutch Reformed Church in the English Neighborhood,” then incorporated. In 1824 a body of the corporators withdrew from the Classis of Bergen and the General Synod, with which the church had been connected, and went into union with what was termed -the true Reformed Dutch Church. The court showed that this secession was illegal, and the new judicatory unconstitutional. The trustees who sued, were chosen according to the established forms and regulations, and were the true and lawful representatives of the corporators. The defendants therefore could not be such. The chief justice in his opinion says: “ Simply holding the same faith, without submitting to the government and discipline of a church, cannot make or keep a man a member of that church'.” Thus we see that the property was expressly given to those who legally answered the description in the deed, and they were at the time necessarily subject to a particular judicatory, and could not legally exist but in such subjection. The deed itself as plainly requires the particular ecclesiastical connection, as the support of the doctrines of the church.

It is said by one of the clerical witnesses, that a church has no more right to withdraw from ecclesiastical jurisdiction than a county from the authority of the state. But what is the consequence of a refusal to obey, or a withdrawal front the supervision of such a body? Can it.ordinarily be any thing but ecclesiastical • censure, suspension, excision, excommunication, or such other punishment as is constitutionally prescribed ? The fourth chapter of the constitution of the Dutch Church has provided for such cases with judgment, caution and firmness. Forfeiture of property will also follow, if that property has been actually given so as to he dependent upon the union. I may here refer to the language of Chief Justice Tilghman, (2 Serg. & Rawl 543,) “ Every church" has a discipline of its own. It is necessary that it should he so, because without rules and discipline, no body composed of numerous individuals can he governed. But this discipline is confined to spiritual affairs. It operates on the mind and conscience without pretending to temporal authority.” See also Justice Duncan’s opinion (7 Id. p. 556.)

My opinion upon this first point is therefore clear. Whatever were the uses for which the property was given, it was not given to be held by those, or for the use of those, who should be in connection with, and subordination to, the ecclesiastical government of the Dutch Reformed Church. The existing union was wholly insufficient to bind the property to that use. That union was voluntarily assumed for spiritual support and guidance; most beneficial in its existence, and hurtful when abandoned; but it was suspended or renounced at different times, and for the larger part of the time, and was repeatedly treated by the classis itself as voluntary and dissoluble.

2. The next material ground taken is, that the act of dissolution or separation in 1837, was not legally passed by a body duly representing the church. It is to be remembered that an actual separation existed from 1825 to 1837, the ministers being called without the sanction of classis. Then an attempt was made by one body to have a formal dismission agreed to by classis. This was refused; and there were at that period,' four trustees for, and five against it. It is insisted that the majority of the congregation were also opposed to the separation. Whether this was the" case or not is immaterial. At the next election a majority of these five- trustees were removed, and others elected favorable to the dissolution. That settles the question as to the will of the congregation.

3. Perhaps the conclusions now arrived at are sufficient to dispose of this bill as it is framed. It proceeds upon the ground of subjection to the judicatory and discipline of the church, as well as adherence to its tenets. But it would be a narrow and technical view of the case, to confine it to this. And I think also, that under a bill like the present, the question of a deviation from the tenets- of founders, may be entered upon. And in this inquiry I shall first seek to ascertain what principles of law have been settled to guide me in my judgment, and then apply theto the facts.

The equity tribunals of England have often passed upon these questions. Their doctrines may be substantially stated thus. They disclaim all power to canvass or determine the scriptural truth of any tenet, held by individuals or congregations- They have steadily adhered to the principle that they can only inquire into the tenets promulgated in a church, in connection with a right to property, or a trust to be administered. The limit of the inquiry is this: was there an appropriation of property for the. support of a church in which certain religious doctrines should be taught, or a trust created for the promulgation of such doctrines? If these objects are not contrary to the law of the land, then the next inquiry is, has there been an attempt to withhold the property from the uses to which it was dedicated, or to apply it to others of a repugnant character; and hence, sometimes, whether those who participate in the avails of the property, adhere to the doctrines it was given to sustain. I shall advert to some of the leading cases upon this important subject. Lord Eldon, in The Attorney General v. Pearson, (3 Meriv. 409,) says: “It is clearly settled, that if a fund, real or personal, be given in such a way that the. purpose be clearly expressed to be that of maintaining a society of Protestant Dissenters, promoting no doctrines contrary to law,” “ it is then the duty of this court to carry such a trust as that int execution, and to administer it according to the intent of the founders.” Again, (p. 415,) “I agree with the defendants that the religious belief is irrelevant to the matters in dispute, except so far as the king’s court is called upon to execute the trust.” And again, (p. 400,) he says: “ Where a congregation becomes dissentient among thenlselves, the nature of the original institution must alone be looked to as the guide for the decision of the court. And to refer to any other criterion, (as to the sense of the existing majority,) would be to make a new institution, which is altogether beyond the reach, and inconsistent with the duties of the court. If the deed bear a decided manifestation that the doctrines intended to be inculcated in this chapel were Trinitarian, and if any number of trustees are now seeking to fasten on the institution the promulgation of doctrines contrary to those which were intended by the founders, I apprehend that they are seeking to do that which they have no power to do, and which neither they, nor all the other members of the congregation can call upon a single remaining trustee to effectuate.” The cases of Cragdallie v. Aikman, (1 Dow's P. C., 1;) Foley v. Wontner, (2 Jacob & Walk. 245;) Leslie v. Birnie, (2 Russel, 114;) Davis v. Jenkins, (3 Ves. & Bea, 156;) and Milligan v. Mitchell, (3 Mylne & Craig, 72, and 1 Mylne & Keen, 446,) recognize the same principles. In the last case, the bill sought a decree that a certain lease and chapel were held in trust for religious worship, according to the institutions and observances of the Church of Scotland, and prayed certain directions to carry this declaration into effect. Lord Cottenham stated that the questions to be considered were, first, whether the property in question was held upon the trusts alleged in the bill; secondly, whether there had been a breach of such trust; and thirdly, whether the complainants were entitled to relief in the suit as instituted. The evidence satisfied him that the chapel was built, and the lease obtained for the purposes of worship according to the doctrine and discipline of the Scotch Presbyterian Church, and that it was held upon trust for that purpose. It appeared that a Mr. Scott had been called as pastor, and upon an application to moderate his call, he declined to sign the confession of faith of the church; and the Scotch Presbyters of London would not approve the call. Subsequently he was again elected by the congregation, in opposition to a remonstrance of the Presbytery, and thereupon his license was withdrawn, and the sentence upon appeal was confirmed by the general assembly. They continued, to employ him, and the Lord Chancellor held that this was a direct departure from the trusts of the lease. It may be observed, that it is a fundamental ordinance of the Scottish Church that no minister can be appointed as pastor of a congregation, unless he has been licensed to preach by the superior church judicatory. The congregation had, in 1803, adopted resolutions, one of which was “ that no minister receive a call who had not been licensed to preach" the gospel according to the established regulations of the Church of Scotland.” Certain members passed a resolution in 1833, annulling these resolves. The Lord Chancellor held that the latter meeting was irregular. He adds, “ If it were necessary to come to any conclusion as to the extent of the power of altering the laws, it might safely be assumed that such power did not extend to altering the fundamental principles upon which the association was framed, and destroying the trusts upon which the property was held.” The case of The Attorney General v. Pearson came again before the court in 1835, (7 Simon's Rep. 290.) and received a final decision. It is a very instructive case, and goes as far as any which can he found. The original deed was made in 1701, and it was declared that the meeting house was intended by the parties to the grant, and all who contributed towards the building of it, to be used "for the worship and service of Almighty God.” The toleration act, (1 Wm. & Mary, sess. 1, ch. 18,) was then in force, protecting Protestant Dissenters, but excluding from the act those who denied the Trinity. The original founders and contributors were dissenters of the Presbyterian denomination. There was evidence to show that they were Trinitarians. In the course of time, a change of opinions took place, so that the trustees, ministers, and a majority of the congregation, had ceased to be Trinitarians. The vice chancellor held, that as it was a fact not denied, that the opinions of Presbyterians at the founding of the charity were in favor of the Trinity, it might be reasonably inferred that they never would have meant that the Unitarian doctrine should be taught in the meeting house; and that, as it was illegal at that time to teach such doctrines, it might also be inferred that they did not mean such a trust as would include the promulgation of these illegal tenets.

The case of the Attorney, General v. Shore, (termed Lady Hewley's case,) has, I observe, been lately affirmed in the house of lords, and deserves particular notice. It is reported in 7 Simons, 309, n. and is stated by Lord Sugden in the Attorney General v. Drummond, (1 Connor & Lawson, 210.) It was first decided by Sir Lancelot Shadwell, Tice Chancellor; affirmed by Lord Lyndhurst, Chancellor, assisted by Baron Alderson and Mr. Justice Patterson, and lately (1842) affirmed in the house of lords. It comes therefore armed with, the whole judicial strength of England. The deed of foundation was dated in 1704. It gave property for the purpose of assisting poor and godly preachers of Christ’s Holy Gospel; to assist in the education of young persons intended for the ministry of Christ’s Holy Gospel, and other similar objects. It. was admitted that the terms used did not embrace ministers of the established church. No doubt, the fact of the. founder being a Presbyterian, and the other facts of the case, were the grounds of this. Then Lord Lyndhurst established that the tenets of the great body of. Presbyterians at the period of ' the grant were Trinitarian; next,, that Lady Hewley was shown to.have been one of that denomination. That the burthen of showing that she held Unitarian opinions was therefore upon the other side,which not being done, she must be assumed to be a Trinitarian, and a, believer in original sin— a Presbyterian doctrine—and one rejected by Unitarians. But again—the Lord Chancellor states the- toleration act of 1688, and the statute of 1699, declaring- a. denial of the three persons in tlie. Trinity to he- God, was blasphemy, and visiting it with heavy penalties. “ I am not justifying the law,” he says. “ I am. making no comment upon it-. I state, what it was. I cannot bring myself to the conclusion, that Lady Hewley intended to promote the preaching of doctrines contrary to law—that she intended to violate the law.” His lordship gives this, as.-a summary of the .aw. “ I agree entirely in. the. principles stated by the learned judges, upon which this case must, be decided. In every case of charity, whether the object b.e religious or purely civil, it is the duty of the court to give effect to the intention of the founder, provided that can be done without infringing any known rule of law.. It is a principle uniformly acted upon in a court of equity. If the terms of the deed of foundation be clear and precise in the language, and clear and. precise in the application, the course of the court is free from difficulty. If the terms used are obscure, doubtful, or equivocal, it becomes the duty of the court to ascertain by evidence, what was the intent of the founder. It is a question of evidence, and that evidence will vary with the circumstances of each particular case. It is a question of fact to be determined, and the moment the fact is ascertained, then the application of the principle is easy. These principles are founded in common sense and common justice,” This case has also been commented upon, and explained by Lord Chancellor Sugden, (Attorney General v. Drummond, 1 Connor & Lawson, 210.) The point decided by Lord Sugden was very similar. The deed was for supporting the protestant dissenting interest, for the education of youth designed for the ministry among Protestant Dissenters, and for assisting protestant dissenting congregations. Five meeting houses had been built by tire subscribers. The question was as to permitting Unitarians to share in the property. It is to be noticed that the Irish toleration act was not passed when, the deeds were executed, so that all classes of dissenters, were equally illegal. The case therefore is very important, as showing the eviden.ee which the Lord Chancellor treated as admissible to ascertain the meaning of the founders, and who were the obects of their bounty, or rather if Unitarians must not be supposed to. be excluded. He, in the first place, holds that parol evidence of declarations of intentions was. not admissible, if the parties, to the deed had declared the meaning they attached to the phrase “Protestant Dissenters.” No declarations could- be admitted against the deed; and if they agreed with it, they were- not necessary. He then, adverts to the arguments of the attorney general, in Lady Hewley’s case—that he. did not. complain of ‘ evidence showing the meaning attached to particular words at o particular time—nor to usage to show in what sense the words were used, when the deed was executed. But he did object that the court below had acted upon evidence given with a view ' to show in what sense Lady Hewley used particular words. He adds, “ The objection then was not to the general admissibility of evidence, but to such as went to construe the deed by expressions of opinion by Lady Hewley. And I will not act on evi dence of that kind in this case.” “ What I am prepared to d' in such cases is this—I shall admit, or if not tendered, see myself, in the writings of the period, in historical records, acia of parliament, and writings of persons of the different persut# sions at the date of the deed, for all helps to tell me what wan; the meaning of the words used; not to do violence to the deed,, but to put such an interpretation upon it as shall be consistent, an well with what appears on the face of the instrument as with the intention of the founder. I reject all evidence of what the founders thought, but I receive evidence of what their acts were, their circumstances, the places of worship they resorted to.” Thus clear and decisive are the doctrines-of the English law upon this subject. It is to be seen whether they have been denied or shaken in our own country.

In the case of St. Mary’s Church, (7 Serg. & Rawle, 539,) the learned chief justice thus speaks of the great question now before me. “ If such measures should be taken with regard tc the employment of pastors, as are incompatible with the fundamental principles of the Roman Catholic Church, it may be a serious question what will become of the real property of the congregation. From what appears, the ground on which the chapel stands is held in trust for a Roman Catholic congregation. The charter was granted to a religious society of Roman Catholics, and before the charter the ground and chapel was held in trust for a religious society of Roman Catholics. Now if a majority of this congregation should insist upon employing pastors contrary to the rules of the church, and the minority should choose to remain strict Roman Catholics, in the sense of the word at the time of their incorporation what is to become of the chapel and the ground ? That is a momentous question on which I have not formed an opinion.” In Field v. Field, (9 Wendell, 401,) Justice Nelson distinctly recognizes the rule of the English court, and cites and approves of the case of The Attorney General v. Pearson. After observing that a diversion of the fund from its original purposes was a subject of equity jurisdiction, and could not be corrected at law, he says: “ If the object of the original contributors of this fund was the instruction and education of their children in the faith and doctrine of the Society of Friends, as understood and believed at the time it was placed under the direction of one of their associations, it is quite clear, both on principle and authority, that such object should be strictly observed by those who have the management of it, and that an ample remedy exists against any perversion of the fund. The question is not which faith is the soundest or most orthodox, but for what purpose or object was the fund originally established by the founders of it. The court proceeds to enforce the observance of an ascertained trust, in which rights of property are concerned, not the peculiar doctrines of either party, though their existence and nature may be incidentally involved.”

In the Baptist Church v. Witherell, (3 Paige, 296,) there are, however, expressions of the chancellor casting much doubt upon the point. After citing the Attorney General v. Pearson, he says: “ I confess I have always entertained serious doubts whether any civil tribunal in the state could interfere to prevent the majority of the corporators in a religious society from introducing such changes in the doctrines or modes of worship in their churches as they might deem expedient. Neither am I prepared to say that it would be right and expedient to adopt the principle of Lord Eldon here, where all religions are not only tolerated, but are entitled to equal protection by the principles of the constitution. Upon Lord Eldon’s principle, a society of infidels, who had erected a temple to the Goddess of Reason, could not, upon the conversion of nine-tenths of the society to' Christianity, be permitted to hear the word of life in that place where infidelity and error had once been taught.” But, with great respect, such a case as the worship of the Goddess of Reason in a temple reared to her could not occur in England. While Christianity is recognized as part of the law of the land, there could be. no legal dedication or preservation of property for such a purpose. It would be broken up on an information of the attorney general. It could be destroyed by creditors, or assignees of the donors. I am strongly inclined to think that the donors themselves could overthrow it. Speaking with humility on so. momentous a question, I hold that no title, will ever be allowed to. stand in the tribunals of this state, founded upon avowed infidelity; no right to property can be created or employed to assail and subvert, the Christian faith. And it must be considered that if such a temple to falsehood as. the chancellor imagines, can be guarded and. perpetuated by the. law, equally may any Christian church built on property given.expressly for the. spread of the gospel, be. converted, at the will of the majority, into, a hall for teachers of apostacy, blasphemy, o.r. atheism. The argument: is as strong in the one aspect of the case as in the other. If. you cannot divert property from an infamous dedication, neither can you prevent its perversion from the uses of piety to those of infamy. I should be loath to say, in the present tendency to evil,, on which side, the greater danger lies; loath to estimate, the chances, whether the golden candlestick would remain upon the altar where it now shines gloriously, or be planted on the. places now reared to impiety. But this I know, that no. man in the land would more detest the consequences of casting religious truth, and the rights, of property at the feet of the, majority of the hour, than the eminent judge whose language has given the doctrine a. momentary countenance. Again, I apprehend, that, in the subsequent cases of The Dutch Church v. Mott, (7 Paige, 78,) and Lawyer v. Cipperly, (id. 282,) the chancellor has gone some length towards the adoption of the English rule. (See also Chambers v. The Baptist Education Society, 1 Monroe's. Law and Eq. Rep. 215.)

I come, to the conclusion, that the great principles of the English equity courts are in force in this state,, and must be my guides..

The case then stands thus: The defendants have possession; have been legally elected trustees of the church by which the property was purchased. They have every legal muniment. I am called upon as a judge in equity, to overthrow that legal title. I discard the factious doctrine that the majority for the time being is to govern. I hold that I am bound to interfere upon the complant of a single worshipper in the church, against a thousand others, Provided—First, that it is certain the property was dedicated to definite legal purposes; Second, that it is certain the possessors of the property are violating those purposes.

The first proposition is, that the will of the majority of the holders of the property is not to be regarded. It is needless to dwell upon this. It must be the law until courts of justice say, that if a man devises his property to one of several heirs, the majority may destroy his gift, and take it from him.

Then the next proposition is, that the property must be dedicated to definite purposes, and those must be legal purposes. We cannot say whether they are legal or not until we find what they are. Then the first inquiry is, are the purposes definitely pointed out 1 Property in England might be dedicated with the utmost precision, to the support of the dogmas of the Church of Rome. The law of England has declared this appropriation of property utterly illegal. A dozen statutes have been passed to declare and enforce this illegality. Property in the United States may be given to the support of Romish doctrines, and no law interferes with the appropriation. The inquiry then is merely, has it been so appropriated ? So property may be dedicated to the support of the tenets "of every sect down to the last shadowy point at which Christianity is lost in morality, or where rationalism destroys faith.. Still the law in this land cannot speak—cannot interpose. It must be submissive, until blasphemy, open and avowed blasphemy against Christianity, is to be supported through the agency of a court of justice; and 'then I hold that no deed, however solemn, can avail—no multitude, however great, can sanction the consignment of property to this deadly use.

In inquiring what were the tenets of the congregation in 1765» it might be sufficient to limit the investigation to this: What were the doctrines of the Reformed German Church, in 1784 ? Are they identical, or so closely allied with those of the Dutch Church as expounded at Dort, as to settle explicitly what are the tenets to be observed, and to leave only the question of deviation open ? Beyond a doubt, we have in the canons of the synod very explicit standards of faith—in the constitution very definite forms of government and discipline. But the case has been chiefly argued and considered with reference to the tenets held in 1765, at the erection of the church in Nassau-street; and cer? tainly it may be forcibly argued that if the doctrines were then distinctly marked, the presumption at- least will be that they remain unchanged. All the light which can be thrown upon this subject arises from the character of the church before its union with the Classis of North Holland; the declaration accompanying the foundation of the church in Nassau-street; and the effect of the alliance with the Dutch Church in 1763, and continued under the independent organization effected in 1773. The character and style of the body before the union was the “ German Reformed Congregation of New-York.” At the laying of the foundation stone, each person declared it was to be a German Reformed Church. The pastor declared that the word of God should there be preached according to the reformed doctrine of Heidelberg and Switzerland.

First, then, what were the prevailing scriptural tenets of Switzerland, or rather of the Reformed Churches of Switzerland, at that period? We have the testimony of one of the reverend witnesses that the doctrine of the Reformed German Church is Zuinglianism. It is certain that the 'foundation of the reformation in Switzerland was laid by Zuingle, and that the peculiar •character of his tenets and principles have been deeply impressed upon the churches, of that land. The reformation in Switzerland began in 1519. It is perfectly true, that the churches which embraced the tenets of Calvin, and the Swiss Churches, are treated of by Mosheim under the general title of the Reformed Churches; but this was in contradistinction to the Lutheran Churches. The Refomed Church, in the acceptation of the history of that period, does not mean the churches strictly Calvinistic, but those which differed from Luther on the dogma of consubstantiation; though great and substantial differences existed between themselves. The late translator of Mosheim, Dr. Murdock, justly observes, that the differences among the Reformed Churches, both as to doctrine and discipline, were very great. Upon some of the leading doctrines of the Christian faith, there were marked differences between the principles of Zuingle, and those of Calvin, and the Synod of Dort. As to the sacrament cf the Lord’s Supper, the former expressly taught that the elements were no more than external signs and symbols. Nil esse in cama quam memoriam Christi. (3 Mosheim, 274, n.) See also the passage cited by D’Aubigne, (History of the Reformation,| vol. 3, 316, and n.) “ Haud aliter hie panem et vinum esse pzito, quam aqua est in baptismo.” “ This opinion,” says Mosheim, “ was embraced by all the friends of the Reformation »n Switzerland, and by a considerable number of its votaries in Germany.” The subsequent attempts of Bucer to reconcile Luther and Zuingle upon this point, failed. Indeed it is stated, that the explanations which he gave, in his zeal to procure a oonformity, awakened the suspicions of the Switzers that he had departed from their opinion; and neither Zuingle nor Oecolampadius were satisfied with him. (14 Du Pin. Ec. Hist., 122, 134.)

With respect to the doctrine of Calvin, it is a matter of ecclesiastical history, that in his efforts to produce a union with the Lutherans, he used language so similar to that of Luther, as to make a difference scarcely distinguishable. He became subject to the remark of Bossuet, that his tenets did not vary much from the dogma of the popish real presence. At a later period, when he obtained such influence in Switzerland, and especially in his controversy with Westphall, he approached, perhaps adopted, the barren doctrine of Zuingle. Taking however his tenets to be fairly expressed in the Institutes, it would be difficult to point out a substantial difference between them, and the doctrine of the 28th article of the Church of England. See especially Calvin’s Institutes, (ch. 17, art. 18.) “ He com mandeth us to take [the Savior’s body.] I doubt not he doth indeed reach it, and I do receive it. It is a higher mystery than can be uttered in words.”

But the language of the Synod of Dort upon this topic is as explicit and decided as could be employed. The thirty-fifth article of the Confession of Faith, is much stronger than the language of the institutes. Consider this passage of that article of the Confession of Faith: “In the meantime we err not when we say that what is eaten and drunk by us, is the proper and natural body and the proper blood of Christ. But the manner of our partaking of the same is not by the mouth, but by the spirit through faith.” It is impossible that a conscientious man, who had engaged to teach the doctrine of that article, could teach the tenet of a figurative commemoration—the tenet of Zuingle. If, then, Calvin’s opinions are to be judged of by what he has stated-in the Institutes, they are wholly at variance with the sentiments of Zuingle. But if the opinions last promulgated by him are to be taken as his settled doctrines, then his views upon this great dogma of Christianity are wholly at variance with the canons of the Synod of Dort. And thus plainly a great and fundamental difference is made out between the faith of the Dutch Church and that of Switzerland. And thus also, a difference is made out between the faith of the German Reformed Church and that of the Dutch Church, so far as the reference to the faith of Switzerland throws light upon the faith of the German Church. Thus, then, when I am referred for an explication of the faith of the founders of this church to the faith of Switzerland, I find a fundamental variance from that of the Dutch Church.

Again, it is stated by one of the witnesses, that whatever Zuingle was, he Was no Calvinist. To a great extent, this appears supported by reference to his works, and the expositions of his followers. Mosheim states, (vol. 3, p. 278,) that the absolute decree of God with respect to the everlasting condition Of the human raee, an essential doctrine of the creed of Calvin, made no part of the theology of Zuingle. I have been furnished, however, with a translation of a German work printed at Chattibersburgh, in 1837, in which extracts are made from the works of Zuingle, supporting the doctrine of election. A careful reference to his works will prove that still very important differences existed. Zuingle held, undoubtedly, that every thing took place according to the predetermination of God. But he explicitly held that unbaptized infants were saved; that the heathen were as much within the efficacy of the atonement as others; and that the .death of Christ was an expiation of the,sins of the whole world, not confined to the elect to whom Christ is made known. In short, the doctrine of reprobation in its high sense was no part of his creed. That tenet is thus stated by Calvin: “ Ñeque enim, preevideri ruinam impiorum a Domino Paulus tradit, sed ejus consi! ¡o et volúntate ordinari, quemadmodum ut Solomo docet, non modo preecognitum fuisse impiorum interitum, sed impios ipsos fuisse destinato creatos, ut perirent.” (In Rom. cap. 9, verse 19.) As to infants, the language of Beza, one of the most celebrated followers of Calvin, is this: “ Idem in baptismo fit, quern multa millia infantum accipiunt, qui tamen nunquam regenerantur, sed in aetemum pereunt.” (1613. Acta Colloquii Montisbell.— Quoted Lawrence's Bampton Lectures, p. 443.) Dr. Lawrence thus states Calvin’s doctrine; that though all children are outwardly incorporated into Christ’s Church, some only are inwardly regenerated by the Spirit. (Bampton Lectures. See Institutes, cap. 16, § 17.) A few passages will show the views of Zuingle, and Bullinger his successor, on this head: “ Ista in hunc usum argumentad su mus, ut ostenderemus toto errare cáelo, qui damnationi astern02 solent adjudicare Christianorum infantes cum non sint baptismo tincti. Hoc enim, ‘qui non crediderit, condemnabitur,’ nullatenus est absolute intelligendum, sed de his qui audito evangelio, credere noluerunt. Unde infantes, et qui non audierunt evangelium, hac lege non tenentur.” (Opera vol. 2, p. 118, ed. 1581. Apud Bampton Lectures, p. 286.) In another place, after discussing expressly the question of the safety of the infants of the Gentiles, he says: “ Guanquam autem, ut ingenue fatear, mihi magis arridet ea sen-ten tia, quae virtute mortis Christi omnium innocentium salutem acceptam fert. Si quaeres quomodo possunt haec fieri? Hoc modo. Guicquid uspiam mortalium nascitur salvum est per Christum.” Builinger adopted the same doctrine. (See a passage Lawrence's Bampton Lectures, p. 288.) Above a.l, Zuingle explicitly held, that there were elect among the heathen, who never heard, or should hear of the gospel. I refer to the passages in his works, vol. 2, p. 118, 371, 559. His follower, Builinger, expresses himself thus: i: Certum est Deum et inter Gentiles habuisse suos electos. Si qua tales fuerunt, non caruerunt Spiritu sancto e,t fide. Idcirco opera ipsorum facta ex fide bona fuerunt, non peccata.” (Sermonum Decades, quinque, p. 174.) It appears indeed that the ability and exertions of Calvin, produced an union between the Swiss churches and that of Geneva, in relation to their fundamental tenets. This agreement was made in 1549—1554. But in a note of the editor, (p. 279,) it is said that the patrons and defenders of Zuingle are extensively numerous, and his doctrine is revived in England, Switzerland, and other countries, and acquires new credit from day to day.

Again, in the year 1675, the formula consensus was adopted at Zurich. Commotions ensued, aud in 1686, through the influence of William of Brandenburgh, the canton of Berne, and the republic of Geneva, in effect abrogated, it. (Mosheim, Book 5, Cent. 17, § 2, part 2.) In our day, says Mosheim, it has lost nearly all its influence. Dr. Murdock says, in a note, that the consensus retained its authority at Geneva until 1706, when it fell into disuse. It continued in some of the cantons, and was considered by the kings of England and Prussia in 1723, as an obstacle to their projected union of the Reformed and Lutheran Churches. Now this consensus condemned the doctrin'e of general grace, and established that of a special grace. And Mosheim writing, about 1756, says that the city of Geneva, the parent and nurse of the doctrine of absolute predestination and particular grace, had become itself so far Arminian, as to deserve a place among the churches of that communion.

With respect to the Heidelberg Catechism, it is admitted that it is susceptible of a construction at variance with the tenets of the Synod of Dort. The answer to the 37th question is capable of an Arminian interpretation'. If we look back to the discussions which took place at that assembly, and the documents presented by the remonstrants, we shall be convinced of the fact, and see the extent of this variance. From Brandt’s History of the Reformation, (vol. 3, p. 83,) it appears that a paper containing their sentiments upon the first article was read on the 13th day of December, 1618. The fifth position of that document is this: “ God hath decreed that Christ shall be an atonement for the sms of the whole world, and by virtue of that decree he hath resolved to justify, and save those who believe in him. But he hath not absolutely decreed to give Christ for a mediator to the elect alone.” Again, in the sixth proposition it is said, “ none are excluded from eternal life, nor from sufficient means of it, by any absolute decree which God hath passed beforehand, without respect to their unbelief or disobedience.” That this is Arminian doctrine will be clearly seen from the passages quoted by Mosheim, (vol. 4, p. 130.) Now compare this with the language of the. catechism in the answer to the 37th question, as well as the reply to the 20th, and the 23d. It is certain that under those summaries of doctrine, a" person might faithfully teach, in consonance with the catechism, the dogmas of the remonstrants.

Widely different from this is the exposition authoritatively pronounced^ by the synod. The 7th article is express upon a special irrespective election. Thus then on this deep theme— free will, fore knowledge—that inaccessible problem which the human intellect has toiled for ages to surmount, and has fallen back from defeated and abashed, the catechism gave great liberty. It was so felt by the eminent divines of the synod, and they restricted that freedom. There is one fact however of consequence, to be here considered. The Swiss churches and those of the Palatinate were represented at the Synod of Dort, and approved of the confessions of faith and canons as well as the catechism. (Brandt, 3, 280, 289.) But it is to be observed that the canons and confessions were adopted and enforced by the States general, as binding upon all the ministers of the United Netherlands; so that the placard against the remonstrants issued on the 15th of July, 1619, prohibited the inhabitants from meeting together to promote any doctrine, differing from the canons or decrees of the synodj upon pain of forfeiture of all benefices, or offices, and payment of a fine. The obtruding of any other doctrines as to the five points, was pronounced to be a defiance of all order and government, and to the destruction of the established religion. (See Brandt, vol. 3, p. 399, 400.) How actively this was followed up by the ejection of pastors, who refused to subscribe the canons, the history of Brandt exhibits. But I do not find in Switzerland or the Palatinate, any similar act on the part of the magistracy; and we must remember that the connection and submission of the church to the civil power, was as much a tenet of Zuingle as it was of Henry the 8th. We do find that the decrees were not submitted to by all the German churches. “ Those of Brandenburgh and Bremen, would never suffer their doctors to be tied down to the opinions and tenets of the Dutch divines.” (Mosheim, vol. 4, p. 80.) A learned divine of the Dutch church, informs me that Seúl tie and other deputies to the synod from Heidelberg were strongly opposed to Arminiauism, and that Parens, an associate of Ursinus, delivered an eulogy of the synod about the time of its close. The observation may naturally be made, that the more clearly it is shown, that the authors of the catechism held the highest Calvinistic doctrines, the more striking becomes the fact, that the catechism itself is so worded as to admit an Arminian construction. We are to remember that it was compiled under the auspices of the elector, and for the churches of the palatinate.

But it has been strongly urged, that as the catechism is susceptible of two meanings, that should be adopted as the faith of the founders which consists with the canons of the synod, because at that time there was an union'with the classis of the church of Holland. Beyond a doubt, as a piece of evidence, this circumstance has weight. It is obvious, however, that it does not conclude the question; because the submission to the Dutch church in matter of government did not necessarily involve the adoption :of its doctrines as expounded by the synod. And some facts may foe referred to tending to the opposite con elusion. The Rev. Mr. Foering came from Manheim, in Baden, in 1763. His call was only to preach the Heidelberg Catechism. It is to be remembered that every minister of the Netherlands was compelled to sign the canons. If the great body of this congregation had adopted that exposition, it is presumable that they would have expressed it in the call. This argument receives additional strength from the language of the calls made after the union with the Dutch Church. Every one of them is only to teach the catechism, without any reference to the canons. We find also, that the authorities in Holland pressed upon the Pennsylvania churches the necessity of sending their ministers to Holland to be examined, as the purity of doctrine in America had been in some cases impaired. It was not until 1775, that the pastor of the church, (Rev. Mr. Gebhard,) signed the formula of the Dutch Church, adopting the exposition of the synod. His call did not prescribe it. It is to be observed, indeed, that it was only in 1773 that this formula was adopted as it now stands. But the canons, beyond a doubt, had been subscribed by every regular minister of the Dutch Church in America. And the subscription of Mr. Gebhard certainly establishes his faith.

Looking then to the true question, viz: is it made out that the founders of this church in 1765, had adopted the exposition of the Catechism given by the Synod of Dort, it is impossible to answer in the affirmative. The presumption is rather the other way. Whether the majority of its pastors so expounded it is not the question, though if proven, it would have been a piece of evidence. I find the catechism now taught. I find it susceptible of an Arminian construction. If it now receives such construction, I am not able to say that the will and intent of the founders is thereby violated. Then limit the inquiry to this: what are the doctrines of the German Reformed Church? It has been deposed to that the doctrines and practices of the German Reformed Church, or Zuinglianism, and those of the Lutheran Church, are not wide apart. Reference is made by the witness to the union of the churches effected under the influence of the king of Prussia. It is in evidence, also, that in numerous instances members of the Lutheran Synods were admitted to a seat, and to vote in the. Synods of the German Reformed Church: and so interchangeably. And the Rev. Mr. Strobel, a witness for the defendants, states that he knows of no difficulty on the part of the Lutherans to prevent an entire union; that these, bodies as- a whole, have not yet obtained a sufficiently organized form to promulgate their sentiments to the world in an official manner; that there is a warm desire to effect an union here, as has been done in Europe. On the other side, several eminent and learned divines have stated that they understand the tenets of the Dutch Reformed and German Reformed Church of this country to be substantially the same.

It appears from a publication of the German Church, published at Chambersburgh, in .1841, that the churches in Pennsylvania were under the supervision, to a considerable extent, of the Synods of North and South Holland. The acts of the coetus appear to have been submitted to them. The Synods press repeatedly that all ministers should first appear before them to be examined. Writing in January, 1785, they urge this as all important, observing that sad experience proves that the doctrines of the Reformed Church are but too much departed from in many parts of Germany, and that they had heard that by certain teachers pushing themselves into several churches in New-York, the purity of the doctrine is in danger of being corrupted. In an address to the congregation in connection with the Chassis of Philadelphia, it is stated, that in the year 1792 the separation of the coetus from "the Synods of Holland took place, and the faith of the church i$ thus stated :—“ The doctrines of ¿he German Reformed Church are altogether evangelical: essentially the same as they were at the time of the reformation. Her doctrines are received from the Bible as the fountain, and are conveniently embraced in the Heidelberg Catechism. The Heidelberg Catechism, as the symbolical book of the German Reformed Church, was composed in the year 1562,” &c. That Zuingle and Calvin were its founders. Again they say—“The government and discipline of the church' may be learned from the constitution, liturgy, and the catechism.”

Here, then, is the only standard to which the doctrine of the church is referred—by which the adherence of a pastor and congregation is to be judged. And I find all the pastors whose admission is considered an intrusion, teaching that catechism. If they teach it with an Arminian construction I cannot interpose. It is not established that the property was to be held for those otherwise interpreting it. The fact that the pastors have received instruction in Lutheran seminaries, or have probably imbibed Lutheran opinions on some points, is not enough. I say not what would be the case if the Heidelberg Catechism was abandoned, and a Lutheran Catechism substituted; and if a regular connection was made with the ministerium. That would be a widely different case.

The consideration of the fourth point is rendered unnecessary by my views upon the others.

After an anxious consideration of the cause, I cannot satisfy myself that the present trustees are so breaking through the tenets prescribed by the founders in 1765, or involved in the trusts of the deed of 1784, as to warrant this court in depriving them of the property, held with the sanction of the congregation. But I feel called upon, and I trust without departing from my duty, to earnestly and warmly press upon these litigants a compromise. The propositions heretofore made strike me as equitable and fair; promising a termination to this sore controversy—the end of angry, profitless strife—and the source of Christian peace and spiritual blessing. The bill must be dismissed.

The complainants appealed to the chancellor, who in May, 1844, made a decree reversing the order of the assistant vice chancellor, and declaring the complainants and their successors the legal trustees of the corporation in question and entitled to the temporalities; which the order declared were held intrust for the support of the worship of God by a church and ministry in connection with the church judicatories of the Dutch Reformed Church, and for the teaching of the doctrines of that church as recognized in its standards. The decree contained proper directions to carry out its objects, and charged the defendants with costs. For a report of the case in the court of chancery and the opinion of the chancellor, see 10 Paige, 627. From this decree the defendants appealed to this court. The cause was argued here by

W. B. Lawrence & H. M. Western, for the appellants,

who maintained the following propositions:

1. The trustees of the corporation of the German Reformed Ghurch, with the concurrence of a majority of the congregation, had a right to make or authorize such deviations from the original doctrihes, Usages and government of the church as the founders could themselves have made. (Case of St. Mary's Church, 6 Serg. & R. 505; 7 id. 538; Dartmouth College v Woodward, 4 Wheat. 641; Baptist Church in Hartford v Witherell, 3 Paige, 296.)

2. Where a religious society is organized with reference to the doctrines of a particular denomination of Christians in Europe or in this country, such society may rightfully conform to any changes in doctrine or practice which have been adopted by the denomination at large.

3. The trustees of a religious corporation in this country have the sole charge and management, of the temporalities, and the courts cannot interfere with their acts on account of any departure from the faith of the founders. (Baptist Church v. Witherell, supra; Lawyer v. Cipperly, 7 Paige, 281; 3 R. S. 207, 208, §§ 3, 4; Const. U. S. Amendment, art. 1; Const. N. Y. 1777, art. 38; Const. N. Y. 1821, art. 7, § 3; 1 R. S. 92, § 1.) (1) The British cases relied upon for a contrary rule are based either upon the statute of charitable uses, (43 Eliz. ch. 4,) which is not in force here, or upon the visitorial power of the chancellor, which, as tó religious corporations, has no existence in this state; and these cases were moreover decided with reference to the act of toleration, (1 W. & M. sess. 1, ch. 18,) which placed certain dissenting denominations upon a similar footing in this respect as the established church, and are for that reason inapplicable here. And the deviations which were held to work a forfeiture were upon fundamental points, and. not upon metaphysical distinctions. (Attorney General v. Pearson, 7 Sim. R. 290; 3 Mer. 409; Same v. Shore, 7 Sim. R. 309, n.; Same v. Drummond, 1 Conn, & Law. 210; Shore v. Wilson, 9 Clark & Fin. 396; 2 Story’s Eq. 541, n.; Cragdallie v. Aikman, 1 Dow. P. C. 1; Foley v. Wontner, 2 Jac. & Walk. 245; Leslie v. Birnie, 2 Russ. 114; Davis v. Jenkins, 3 Ves, & B. 155; Milligan v. Mitchell, 1 Myl, & Craig, 511, and 1 Myl. & Keen, 446, S. C.; 2 Story's Eq. 541; Dutch Church v. Mott, 7 Paige, 78; 2 R. S. 466, § 57; Auburn Academy v. Strong, 1 Hopk. 278.) (2) The American cases, though they have sometimes disregarded the distinctions arising out of the English system, have generally awarded the temporalities to a majority of those interested in the trust; (Commonwealth v. Green, 4 Whart. 531; Presb. Cong. v. Johnston, 1 Watts & Serg. 1; Hendrickson v. Decow, Saxton’s R. 582; Field v. Field, 9 Wend. 394; Lawyer v. Cipperley, supra; Chambers v. Baptist Ed. Soc. 1 B. Monroe’s Rep. 215;) or (3) the case has turned upon a statutory provision recognizing the authority of a superior church judicatory. (Den v. Bolton, 7 Halst. 237.)

4. “ The German Reformed Church in the city of New-York,” whose temporalities are in controversy, was never a Reformed Dutch Church, and never constituted an integral part of that church. (1) The connection between them was of a temporary character, involving no pecuniary consideration, and was often and at long intervals interrupted. It was never sanctioned by the corporate authority of the German Church, but consisted simply in an association for spiritual purposes, and was definitely discontinued many years since. (2) The church was never incorporated under the provision for incorporating the Dutch churches. 13) It has always chosen its own ministers, and has never accepted a “ supply” from the Dutch classis.

5. There has been no deviation from the doctrines which prevailed at the foundation, or at the time of the incorporation of the church ; or if there has, it has been acquiesced in for such a length of time as to constitute a bar. ^

6. The appellants are the legal trustees of the corporation, and are in possession.

7. The respondents, if their pretensions are well founded, have an adequate remedy at law.

8. The corporation should have been made a party.

9. The decree in the former suit is a bar.

G. Wood, for the respondents,

insisted on the following points

1. The appellants and their associates and adherents abandoned the established religious faith and doctrines of this reli gious society. (1) This religious society was and always had been Calvinistic. in faith and doctrine, and adopted the faith and tenets of the Heidelberg Catechism, as held and interpreted by Calvinists. (2) The German Reformed Church, and the Dutch Reformed Church, held substantially the same religions faith and doctrine, which became the rule of faith for this religious society from its earliest infancy, and continued so till the appellants and their associates undertook to overturn it, to introduce Arminian doctrines, and to interpret the Heidelberg Catechism according to Arminian views, and seceded from the faith and doctrines of the society.

2. The respondents and 'their associates and adherents have and still do hold and maintain the religious faith and doctrines of the founders of this religious society.

3. The appellants and their associates have seceded from the rule and government to which this religious society was subjected. (1) Although this society continued for a short time in a state of independence, as every voluntary institution of the kind must at first, yet from their religious tenets and principles they were bound to come under subordination to a regular church government. (2) This society came under subordination to the chassis of the Dutch Reformed Church, and until then their government and discipline were inchoate and incomplete ; and such must have been the case, according to the religious tenets and principles of the members. (3) At the formation of this society, the greater part of the individuals comprising it, had, before said subordination, attached themselves to the Dutch Reformed Church, and all of them were identified therewith substantially as well in doctrine as in discipline. (4) After the American revolution, this society came under subordination to the newly formed judicatories of the Dutch Reformed Church in America. (5) The appellants and their associates were seceders, by departing from the rule and government of the Dutch Reformed Church.

4. The appellants and their associates were not, at the time of their secession, a majority in this religious society; and if they had been, it would not have authorized them to secede, either from the standard faith or doctrines, and from the government and discipline of the church.

5. This controversy is between two sets of trustees, each claiming to be the legitimate trustees, and denying the rights of the other set. The respondents must prevail, because, (1) They adhere to the faith and doctrines of the society. (2) They adhere to the government and discipline of the church. (3) Their organization is regular and perfect. (4) The appellants are defective in all these particulars. (5) All the property of the church, wherever acquired, must follow, and be under the control of the legitimate church judicatories having charge of the same.

6. Although a court of law would have cognizance of this case, and entertain an ejectment, yet equity has concurrent and collateral jurisdiction, because, (1) The settlement of the right to the property involves the investigation of important public and pious uses. (2) The relief in equity is much more broad, comprehensive and complete. (3) The appellants have not interposed the objection, but have submitted to the jurisdiction of the court.

7. The claim of the appellants is not barred by lapse of time, because, (1) Twenty years would be the bar, in analogy to the limitation at common law. (2) The respondents have not, by plea, or in their answer, set up lapse of time as a bar.

Gardiner, President. The questions in this case a re, first, as to the existence and character of the trust, and secondly, whether it has been violated.

1. Where the trust is declared in writing, and its nature and extent clearly defined, the court has no alternative but to carry it into execution. In gifts for charitable purposes, the donor may prescribe his own terms, and, if he declares the object of his gift to be to promulgate a particular creed or class of doctrines, or to secure a real or imaginary stability, by having those doctrines taught by a clergyman, and by a church in connection with, or in subordination to a particular ecclesiastical judicatory, his will, as in the case of a devise, stands for a reason and must be respected. But there is a class of cases, and 'this is one of them, where the founder of the charity in declaring the trust uses language, which, in its application to the subject of the trust, might be used in different senses by different individuals, and by the same individual under different circumstances. Parol evidence is not admissible for (he purpose of contradicting or varying the terms of the conveyance; for that would, in effect, be creating a trust in reference to real property by parol. The court are to construe the deed, and the only legitimate office of extrinsic evidence, is to place the court as near as possible in the situation of the contributors to the charity for the purpose of enabling it to determine the sense in which they employed terms susceptible of different interpretations. Thus in the case of The Attorney General v. Shore, (7 Sim. 810,) the language of the deed which raised the trust was “ to assist poor and godly preachers of Christ’s holy gospel.” The Unitarans were in possession and claimed the fund, and, among other things, evidence was received, that Lady Hexvley, the donor, was a Presbyterian, and a believer in the doctrine of the Trinity, The object of the parol proof was to show that she had not used the term “godly,” as applicable to a class of preachers who denied what she esteemed a fundamental doctrine of the gospel. The language in its application was ambiguous; -it would be used by a Unitarian in one sense, and by a Trinitarian in another. The one would deem it a part of Christ's “ holy gospel” to deny, the Other to assert the divinity of the Savior. If, however, in the case cited, the fund had been claimed by the Methodists or Congregationalists, or any other dissenting evangelical denomination, under the same circumstances, the -result, as I apprehend, would have been different. A Presbyterian could, with propriety, be supposed to apply the terms godly and pious to a sincere Christian preacher, whether attached to the same denomination with himself or not. The words being general and there being not!ling in the religious belief of the donor to restrict them necessarily to his own sect, they would receive a more general interpretation. I have referred to the case of Lady Hewley’s charity, not only because it received great consideration, but also for the reason that the judges, in their opinions affirming the decree of the lord chancellor in the house of lords, advert to and enforce the rule of evidence to which I have alluded. (See also The Attorney General v. Pearson, 7 Sim. 308, and Milligan v. Mitchell, 3 Myl. & Craig, 72.)

It is unnecessary to refer to all the cases which have been cited. So far as they arc of authority here, they will be found consistent with the views above suggested.

The following propositions may be fairly deduced from all the cases. 1. That in trusts for charitable^ or pious uses, the intention of the donor is to govern. 2. That in ascertaining that intention, the language of the trust, if clear and explicit, is conclusive evidence of the intention. 3. That where the language is ambiguous or equivocal, you may resort to extrinsic evidence, not for the purpose of ascertaining the intention of the donor, independent of the deed; but for the purpose of determining the meaning and application of the terms used by him. 4. As a corollary from the above propositions, that general terms are to be construed generally, unless the circumstances under which the trust was made, furnish decisive evidence that they were used in a limited or special sense.

Bearing these principles in mind, let us inquire what are the trusts upon which the property in question was granted, as claimed by the respondents. The substance of the allegation as stated in their bill of complaint and put forth upon the argument is, that the property in question is held upon the trust, that the same shall be applied to the teaching of the doctrines of Calvin, to a congregation or church in connection with and in subordination to the classis of the Reformed Dutch Church, exclusive of all others; and, of course, that a violation of the trust in matter of doctrine, or church government, entitles the respondents to.the relief which they claim in equity. The deeds under which the property was held prior to the year 1764 have not been produced. But a bond, or rather a declaration of trust bearing date the 30th July, 1765, has been made an exhibit, and is the only written evidence, having direct reference to the nature of the trust under which the property was held, upon which the church was first erected, and upon which it was rebuilt in 1766. This bond purports to have been executed by persons holding the legal title to two lots upon Nassau-street and runs to John Michael ICern, present pastor of the Calvinislic Church, in the city of New-York, worshipping in the German language, and to other persons described as elders and deacons of said church, in the penal sum of £3000. The recital in the condition is that “ whereas certain German and Swiss inhabitants of the city of New-York, have lately by contribution purchased a lot of ground, and with the assistance of divers charitable and well disposed persons, have begun and are carrying on the erection of a church thereon, for the worship of God and that the fee simple of the land had been vested in the obligors, in joint tenancy, by virtue of certain deeds executed by certain individuals, who are named. The date of the conveyance is then given with a description of the lots—and the condition concludes as follows : “ And whereas all parties are inclined to preserve the said estate in all times coming, for the pious uses aforesaid : Now therefore, know ye, tha the obligors are only intended to be trustees of said property.” I infer from other parts of the case, that the grantors referred to were the trustees to whom the property was originally conveyed, and that they, according to the recital, conveyed to the obligors upon the same trust with which it was charged in their hands. They certainly had no right to prescribe any other condition without a violation of duty which is neither proved nor pretended. Assuming that we have in the above recitals all the conditions which the parties interested in the property thought fit to prescribe, the only question will be as to the sense in which they used the terms from which the trust arises. These terms are of the most general character. The land had been purchased, and a building was to be erected thereon 11 for the worship of Godand all parties, as they expressly declare, were inclined to preserve said estate in all times coming, for the pious uses aforesaid. There is nothing in these terms relating to church judicatories or to any specific doctrine. It is true that the obligees are described as the present officers of the Calvinistic church worshipping in the German tongue, but this is no £>art of the trust. The declaration of trust is quite a different thing from the persons in whose names a legal obligation is to Be enforced, in case of a breach of duty upon the part of the trustees. No one doubts that the terms are sufficiently comprehensive to include Calvinists; but the question returns, whether the use is to be limited to them exclusively, or whether it may not extend to any other evangelical denomination. There certainly is nothing in the terms of the deed to prevent them from participating in the benefit of the fund. Is there anything in the circumstances under which this fund was created, to induce a belief that the expression “worship of God in the German language,” was used by the contributors in the limited sense contended for by the respondents? Who were they? The bond says, Germans, Swiss and other charitably disposed persons. Granting that they had been educated in the Reformed church, and were attached to its doctrines and discipline, is there, anything inconsistent in such a body of men establishing a fund upon principles sufficiently liberal to embrace all those who agreed with them, as to the essential truths of the gospel; more especially, when they sought aid from the whole Christian community without distinction? In the year 1765, could not the terms “ worship of God,” be applied writh perfect propriety by a member of the German Reformed church to the religious worship of the Presbyterians, Lutherans, Methodists, and so far as doctrine is concerned, of the Episcopalians, as well as of the Dutch Reformed. History assures us that Zuingl ius and the members of his church earnestly sought to be recognized as brethren by Luther and his followers. And it would require more proof than I have discovered in this case to satisfy me that when this property was purchased, the respective followers of these great and good men did not regard each other as Christian brethren. I agree with the chancellor, that the evidence shows that in 1758, a religious society was established, called the German Reformed Church, and that its first members were of that persuasion ; but this is far from satisfying me that the contributors to the fund for purchasing this property intended to limit their bounty to the teaching of the doctrines of. Calvin exclusively. They have not said so; and there is nothing in their situation or opinions which would necessarily induce them to confine their bounty to the promulgation of that class of doctrines.

Upon the subject of the church government, or ecclesiastical connection, the declaration of trust is entirely silent. We are not called upon to give a construction to an equivocal .or ambiguous phrase, but to add by a resort to extrinsic testimony a new condition to the trust, unless, indeed, we are prepared to determine judicially, that men cannot -worship God, in a house erected for that purpose, without the supervision of a bishop or synod. This certainly is not any belief, and I hope it will never be the doctrine of this court. It was not the belief of the founders of this church, if any reliance is to be placed upon their acts. From 1758 to 1764, they established their own discipline, called their clergymen, and dismissed them, without any connection with, or aid solicited or afforded by, any other ecclesiastical body whatever. The Dutch Reformed denomination had at that time a church in the city of New-York, the most influential and wealthy probably in the territory now constituting the Union, which was connected with the Synod of North Holland. Yet no application was made to them, during this period, by this church, for any purpose connected with their ecclesiastical organization. Their clergy were not consulted; they were not requested to moderate their call for their pastor, nor to do any other act which would be appropriate and necessary upon the supposition that this church was subject, or intended to subject itself, to the control of the judicatories of the Dutch Church. Indeed, the letter to the Classis of Amsterdam, and the resolution of the consistory procured by Dominie Kern, furnish conclusive evidence, that up to January, 1764, this church was to all intents and purposes independent. The letter and resolution state that to avoid the evils incident (in the opinion of Dominie Kern) to a state of independency, they had resolved to unite with the Classis of Amsterdam. The evidence, therefore, of the acts of this society is entirely consistent with the deed. That contains no.provision upon the subject of church government, and the history of the church shows, that from its foundation to the year 1764, it was in fact independent.

I am aware that great reliance is placed upon the declarations made at the time of laying the foundation of the-new church in Nassau-street. The members of the congregation then repeated the expression,—“ to be for a German Reformed Church,” and the clergymen declared that “ in the house to be built on this foundation stone,- shall be taught the word of God according to the reformed doctrine of Heidelberg and Switzerland.” This is certainly very satisfactory evidence of the religious creed of the pastor, and also that the congregation intended to establish at that time a German Reformed church, and nothing more. Nothing, it will be observed, was said by either as to the forms of church government. This ceremony was not a declaration of the trusts upon which the donors had contributed. It was neither intended to nor could it have that effect. It was a statement of opinion merely, that a German Reformed congregation worshipping in the house to be erected, and in which was taught the word of God according to the doctrine of Heidelberg and Switzerland, were within the purview of the trust theretofore created; and in this they were undoubtedly correct. There is, however, an-important fact in the case which takes from this ceremony, its whole effect, as evidence of a trust limited to a particular religious society, or class of doctrines. It is that the formal declaration of trust to which I have referred, and which -I have assumed to state the original conditions to which this property was subject, was executed upon the 30th July, 1765, three months after the ceremony above alluded to, and that the clergyman who made the above declaration is one of the parties to that instrument. This is satisfactory evidence to my mind, not only of the character of the trust, but that the same was adopted by the contributors to the new church, and that the property was to be applied in conformity with the design of the original founders, and not as the chancellor seems to suppose, to a new trust. If I am correct in this supposition, there would seem to be an end of the question. For I agree with the vice chancellor that if this church was originally independent, a union with the Dutch church, six years afterwards, did not merge the former in the latter so as to make that union indissoluble. It left the congregation free to dissolve that connection at such time as their sense of expediency might dictate.

I deem it unnecessary to refer to the subsequent history of this church. If, as I have attempted to show, the terms of the trust are silent upon the subject of ecclesiastical supervision—if the church, for the period of six years from its formation, was in fact independent—if the terms of the trust deed, providing “for the worship of God in the German language,” can, when construed in reference to the existing law, which comprised Christianity among its principles, and to the circumstances and opinions of the donors, be applied to a congregation unrestricted as to church government, and to the promulgation of doctrine at the time esteemed evangelical without regard to sectarian differences—I think we are bound to give the deed such construction. If we insist upon the precise faith held by the founders, it is difficult to say where we are to stop. If, because a German Reformed church was established, we infer that Calvinism alona should be taught, it must be that doctrine as then understood, including an idea regarding the eucharist which is now discarded by all the churches of this country; and the notion of a limited atonement, which is rejected by a majority of those taking the general name of Calvinist.

A rain, if we are to assume that a German Reformed Church implies subordination to the Dutch Reformed Church, under the government of a consistory, classis and synod, because this church was in that connection in 1763, then it is a part of the trust that such government be adhered to in all its parts as it then existed; and what then becomes of the act of incorporation under which the temporalities have been managed since 1784, and through which these respondents claim title ? The argument is that every thing relating to doctrine and practice must be as it then existed. The book of discipline of the Dutch Church must be deemed incorporated in the trust deed. That book declared that the pastor, elders and deacons, who were all necessarily communicants, should administer the temporalities; but by this act of the congregation they are deprived of that power. The legal title is vested in trustees chosen by the congregation, who, for aught the act prescribes to the contrary, may be infidels. (Baptist Church in Hartford v. Witherell, 3 Paige, 296.) This change, though certainly very important does not, it is admitted, prejudice the title to the property; but what authority have we for saying that the benefactors of the church regarded the system under which the property was managed as less essential than the ecclesiastical connection and government? Again, if the submission to church judicatories is indispensable, what will become of the property which was purchased while the connection was interrupted, or after it had actually ceased? The property acquired while the church was independent must, to preserve consistency, be held in trust for a.church under that system of government. The consequence of this would be, that from 1758 to 1763, and from the commencement of the revolution to about 1800, and again from 1823 to this time, we should have one class of trusts; and during the remaining periods of the church’s existence another. If, to avoid this difficulty, we determine that the donations made and property subsequently acquired were upon the same trusts indicated by the founders of the church in 1758, the church as we have seen being then independent must remain so; and the union with, not the secession from, the Dutch Church, would be the ground of complaint. We cannot escape these difficulties in ;ahy way, except by adhering to the trust as solemnly declared by the contributors; and, by supposing that within the limits ábove defined, they intended to vest a discretion in the congregation, or in the trustees as their representatives, upon the subjects of government and of doctrine, to be exercised according to the exigencies of the cáse.

This cáse is of great importance as a precedent. The grants to inost of Our'Churches, particularly since the act of 1784, are general in their terms, frequently nothing more than a conveyance to the'religious incorporation by name. In these cases the corporate or dendminational name in connection with the cotetiiporaneous "acts of "the corporators, may be "a sufficient guide as to the nature of "the trust in respect to doctrines esteemed fundamental. If "a Society incorporated by the name of "Unitarian, has for it's "pastor a Unitarian minister, "we could with safety infer froffi "that it was hot the intention of the founders that their "bounty should be applied to "the dissemination of Trinitarian doctrines. But beyond this, in all matters not deemed indispensable,"a discretion would be vested in the congregation and their trustees as the representatives of the "donors.

Although I do not sympathize in the doubt expressed by the chancellor in The Baptist Church v. Witherell, (which he has "ceased to entertain) whether the trustees of a religious society are not independent" of" all control,' in reference to doctrine and "modes of "worship, I do most cordially agree'with Ziim in opinion (that "it must be a plain and palpable abuse of trust which will "induce a "court of equity to interfere, respecting a controversy., growing out of" a difference'in religious and sectarian tenets/ Between that extreme which confers all power upon the congregation or "the" trustees, and the doctrine which subjects the property to forfeiture for departures from’"doctrine or forms of:government," in matters not indispensable to the great ends to be obtained by: religious organization, there is a wide interval where ‘"we may take óúr stand, sustained by the law" and by a sober and " enlightened- public sentiment. With: all my respect for the high '‘character and great learning of the chancellor,'! cannot but believe that" the principles applied by him to-this case, if adopted by this court, will cast doubt upon the title to. one half of the church property in this state—will be a source of discord—an incentive to controversies and feuds, not the less bitter because they are bloodless. If any class of our citizens ,are of opinion that spiritual blessings can only flow, in a particular channel; if the church or a creed in their minds.usurps the place of the revelation upon which they, suppose, them tp be founded, and if such persons found churches, they must declare their opinions explicitly, to have, them respected. Such was. not, the bel ief of the. plain men who established this church. They have left enough upon record to.show that, they were anxious.that the essential truths of Christianity, which were recognized by the great, body of the reformers of. that day, should be preached to them and to their children. This has been dpne. If we go farther and bind this church to a particular creed and compel a reluctant submission to a judicatory whose authority they have renounced, it will, in my opinion, be. the act of this court, and not that of the founders of the charity. I am of opinion that the decree appealed from should.be reversed.

Barlow, Senator, also delivered a written opinion, in favor of reversing the decree of the court of chancery, stating, and enforcing the following conclusions: (1) That where property is contributed to found or endow a church or religious society or corporation without an explicit declaration in the act of donation that it is to be held for. the support or advancement of any particular religious doctrines, a majority of the. members of such church or society, or the trustees if th.e church be incorporated, are at liberty to deviate from the doctrine which prevailed at the time of the donation, and that such deviation will not produce a forfeiture of such property, or entitle, a minority adhering to the faith professed when the donation was made to the enjoyment of such property, to the exclusion of the majority who have brought about or acquiesced in the change. (2) That where, property is in terms, conveyed upon trust to support a particular form of worship or to provide for the teaching of the doctrines of a particular denomination of Christians, the court of chancery will enforce such trust and prevent a perversion of the property to other purposes. And (3) That in this case no portion of the temporalities in controversy appears to have been conveyed or contributed upon any trusts relating to religious doctrine or church government; but if this were otherwise that there has been-no such material deviation from the former faith or practice as would authorize the interposition of the court of chancery.

Beers, Senator. The appellants in this suit it is conceded are the lawful trustees of the corporation of the German Reformed Church in the city of New-York. The respondents, who are members of this corporation, ask that the property shall be taken from the appellants’ control, because they are perverting it from the use to which as trustees they are bound to apply it. This proposition the. respondents must establish or their prayer cannot be granted.

The corporation of the German Reformed Church of the city of New-York, as known to the law, became such on the 11th of June, 1784, under the general act of the legislature for the incorporation of religious societies. The lots on which the church stands, were on the 2d day of November of that year, conveyed to Henry Whitman and others, trustees of said corporation, for them and their successors to hold as trustees as aforesaid. As the validity of this organization and deed are not denied by the respondents, it is conceived that the proceedings from which this corporation and its first trustees derived their legal existence will aid much in defining the object of the incorporation and the duties of those officers who were to effectuate that object, and this more especially if these proceedings, instead of being involved in doubt and characterized by haste, disorder or conflict, are on the contrary distinguished by harmony, order and mature deliberation, and recorded with perspicuity. Referring to those proceedings, it will be found that in the month of May, 1784, a church council was summoned upon request of Dr. Livingston, to consider whether the Reformed congregation would enter with the large or small ecclesiastical assembly of the Low Dutch Church, or would bo under its protection. After mature delibe* ration it was unanimously concluded, never to vote for such a union. And certain reasons were specified in a protocol as they declared, “for the information of posterity.” At the same council it was unanimously concluded to have the church incor porated, and that the property, except the alms which were declared not to he a temporality, should he delivered to the trustees. If these proceedings remain of any force, it would seem that the appellants should not be held guilty of a breach of trust in not recognizing the jurisdiction of the Dutch Reformed Church.

The only remaining question is, whether this court are to wrest the temporalities from the appellants because they are using them as a means to promulgate doctrines essentially variant from those which the property they hold was designed to advance. To solve this point, it is necessary to ascertain what duties were imposed upon the trustees in regard to doctrinal matters. All they could be required to do in this respect was to pay the salary of the individual who should by the proper authority be selected to minister to the church in word and doctrine, and to see that the church was open for his ministrations. They as trustees certainly had nothing to do in designating who this individual should be, and as trustees had no right to determine his orthodoxy. This latter right and duty rested in other hands. If, therefore, the spiritual teacher of this church and congregation has been designated by those upon whom that duty devolved, the trustees have no right to shut the doors of the church against him, or to withhold his pay because they may deem him unsound in the faith. They would be guilty of a palpable breach of trust by so doing. If the duty of choosing the shepherd of this flock be committed to the classis of the Dutch Reformed Church—or if to the judicatories of the German Reformed Church—or if to the flock itself, and that delicate trust has been performed by that one of these bodies to which it shall be determined to belong, then it is the duty of the trustees to use the temporalities of this corporation in such manner only as shall aid the shepherd thus selected to feed the flock in his own way. If he shall prove a mere hireling, and lead them to sterile mountains and" among wolves,- instead; of "green- pastures by- the side of peaceful-waters, he must answer for it-to his spiritual superiors* and-not to-the trustees;

Being convinced that those-pastors of the German Reformed Church in the-city of New-York of whose tenets the-respondents complain, were-selected- by those to whom that duty- belonged, and that- the- appellants as trustees of the temporalities only have used them to sustain- the- pastors thus properly- designated—it follows- that the decree-of the chancellor• in this case should be reversed, and that of the vice chancellor affirmed.

Folsom, Senator, delivered a- written opinion in favor of reversing the decree appealed1 from, on the grounds, (1) That the deviation from the faith and practice prevailing in the church at former- periods, if indeed there was any such deviation proved, was too slight-and unimportant to warrant the, interposition of the court- below; even- if - such interposition on account of an alleged departure from- the belief of the founders or benefactors of1 a church would-ever-be justifiable, which was considered to be a matter’of doubt. (2) That the connection formerly subsisting between the church in question, and the Reformed Dutch Church-was-voluntary and-was never binding on the former, and was now at-an end. (3) That the court of chancery is deprived-"of'jurisdiction by the provisions of the statute. (2 R. 466, 157.) And (4) that the order of the vice chancellor in the former suit mentioned in the pleadings and- proofs was a bar to the, relief sought in this suit.

Porter-, Senator. There is-involved in the decision of" this case, the very grave question, whether property, originally given by the founders of a church, for the use of that-particular church, shall forever thereafter-be devoted to the teaching of the particular religious doctrines and tenets, and be subjected to the particular form of church «government, which were establishéd in the church by its original patrons- and founders. The principle involved must necessarily take a wide range, and affect a vast amount of property held-for religious and charitable uses; and, what is perhaps oft far.-more consequence, exert an extensive, influence upon the peace and good government of the various churches in this:country. All denominations of Christian worshippers have an- interest in the. question; for unless the title to property held in trust for religious and charitable uses is to he determined by the. courts, as intimately, connected with the doctrines and: faith and form, of'church government, established by the patrons, apd: founders of each church, there can be no stability in the churches, nor even a faithful execution-of the trusts, But the character, and integrity of the government is concerned in seeing all such trusts protected- and faithfully executed.

Much theological learning has been employed by the chancellor and vice chancellor, in the examination they have given of certain religious tenets, and in exhibiting the points in which eminent theologians of past centuries have agreed or disagreed, and in applying the results of their investigations to the. case, before the court; but it appears to me that the question between these parties does not depend upon the.point, whether- the doctrines and, practices of the German Reformed Church and those of the Lutheran Church are, or are not, wide.apart; or whether or not the Heidelberg Catechism is so worded as to be susceptible of an Arminian, construction. These nice points may be appropriate subjects for religious- controversialists, and they perhaps furnish the occasion, for the. division of churches; but from the view I have taken of the law and the facts of the, case, the only questions that seem to me necessarily to arise, are these: 1. Was this a Calvinistic church in its origin, within the views, and objects of its founders, as contradistinguished from Lutheranism ?

2. Has. it been converted into a Lutheran church by the appellants, or those to whom they have succeeded in its management?

3. Was it in its origin, and by. its. founders, placed trader the government and judicatories of the. Reformed Dutch Church? and if so, has any-thing since taken place that could legally absolve this church from its subjection to the judicatories of the Dutch Church?

Before discussing these questions I will advert to some principles of law applicable to the case, which I think should be borne in mind while drawing our conclusions from the facts which are given in evidence. It is unnecessary to refer to particular parts of the proofs to show that from about the year 1758 to 1766, considerable sums of money had been contributed by the founders of the German Reformed Church in New-York for the purchase of a site for a' church, and towards the erection of a church edifice. It was these benefactions by individuals who worshipped in that church, and belonged to that religious community, and perhaps by others who felt a desire to promote the same object, that laid the foundation of that religious charity, the possession and administration of which forms the subject matter of this controversy. Those who bestowed their bounty in this direction had an object in building up a society of religious worshippers, and in contributing to the establishment of a church which professed the doctrines and tenets, and submitted to the goverhment which that church professed, and by which it was controlled. It is not material now to inquire and decide what those doctrines were, nor what the government was; but only to determine, that up to about 1766 when their new church was built, there were certain doctrines, and rules of faith and practice in matters of religion, as connected with that church, which were recognized and established, and by which that community of the German Reformed Church regulated the rights of membership and of participation in its privileges. Those were rights which the law protected. There is no evidence in the case that during the period I have mentioned there had been any variation in the articles of faith adopted in that church. What they were in 1766, they therefore had been from the time when, prior to 1758, a few “ German Reformed members ” first made a subscription to ascertain whether they could “ support a preacher,” of their own particular faith. This society then had property, held by trustees for the spiritual use of its members; and it was at that time stamped with the impression of the faith of its founders. Here was an appropriation of the property of this religious society for its support, and for teaching the religious doctrines which were there professed. We have then at that time a religious society, which has its own articles of faith which distinguish it from other religious denominations. It has property charitably bestowed and held in trust for the pious use of promoting the spiritual prosperity of that society, and for the perpetuation of the same faith. The inquiry then arises, Will the law permit those who have the management of the fund, to use that fund to promote the teaching of another faith ? It is very clearly established that it will not. In the case of The Attorney General v. Shore, (7 Sim. Rep. 290, n.) Lord Lyndhurst says, “ In every case of charity, whether the object of the charity be directed to religious purposes or to purposes purely civil, it is the duty of the court to give effect to the intent of the founder, provided this can be done without infringing any known rule of law. It is a principle that is uniformly acted upon in courts of equity.” “ It becomes the duty of the court to ascertain by evidence, as well as it is able, what was the intent of the founder of the charity. It is a question of evidence, and that evidence will vary with the circumstances of each particular case. It is a question of fact to be determined; and the moment the fact is known and ascertained, then the application of the principle is clear and easy. It can scarcely be necessary to cite authority in support of these principles. They are founded in common sense and common justice.” In The Attorney General v. Pearson, (3 Meriv. 400,) Lord Eldon says, “If it turn out that the institution was established for the express purpose of such form of religious worship, or for the teaching of such particular doctrines, as the founder has thought most conformable to the principles of the Christian religion, I do not apprehend that it is in the power of individuals having the management of that institution at any time to alter the purpose for which it was founded; or to say to the remaining members,*We have changed our opinions, and you who assemble in this place for the purpose of hearing the doctrines and joining in the worship prescribed by the founder, shall no longer enjoy the benefit he intended for you, unless you conform to the alteration which has taken place in our opinions.’”

We have here property devoted by the donors to pious uses, and to be administered by a particular Christian church, which held certain well known religious opinions, and: which, church was under, the government of certain ecclesiastical authority; and if- the court, can ascertain precisely, what those tenets were, and what church government was. within the views of the donors, it is the province of. the court and its. duty to direct the property to be placed in the hands, of those, who acknowledge the same doctrines, and obey the same authority, Any attempt to take the property thus devoted- from the control of those of that faith and government, is a. breach of the charitable, use of the donors, and- the court is. bound to furnish a remedy. They must look upon it as a trust sanctioned by law, one which is.to be enforced; if necessary by the courts. In Field v. Field, (9 Wend. 401,) Nelson, J. in delivering, the opinion, of the court says, “ the question is not which faith or doctrine, is most orthodox; this is. not the object of the inquiry, but for. what object or purpose was the fund originally, established by the founders of it. The court proceed to enforce, the, observance and execution of an ascertained trust, in which rights of property are concerned, not the peculiar doctrines or. faith of either party, though their existence and the nature of them may be. incidentally involved in the course of the, proceeding.”': It cannot, be useful to multiply authorities, upon this subject. It, must be considered settled, that when it is proved that .property is. held upon trust, and deyoted to pious or charitable uses, the purposes of the donors.shall not be violated.; and that those trustees who undertake to pervert the charity to. other, uses, will, be divested of the, trust.

Such being, the principles of law, and the duty of a court of equity, it becomes necessary to inquire, into the facts of this case. Before doing so, I will advert for a moment to a general view of the Dutch Reformed and German Reformed churches in this country previous to, the year 1771. The. German. Re: formed churches, were principally located in Pennsylvania, while the Dutch were, situated in the colony of New-York. It appears from the history of those churches, that, prior, to the, time above mentioned, they were under the, immediate jurisdiction and government of the classis of Amsterdam, in Holland, which, was itself ill subjection to the Synod of North Holland. This jurisdiction extended" even to the licensing and ordaining of ministers, to the hearing of all cases of ecclesiastical controversy, not excepting such as concerned the discipline of church members. This was, indeed, a' degrading state of vassalage, little in accordance with the American spirit of freedom of action and of thought, which began to manifest itself anterior to the origin of the church in Question. At the period when this church was formed, the ministers of the Dutch and German Reformed churches, had either to be imported from Holland or Germany, or sent thither to be educated • and ordained before they could be admitted to preach and perform the other functions of their office. Strange as it may now appear to us, there was a large party in the Dutch Reformed Church, that adhered rigidly to this foreign jurisdiction; and the disputes arising out of this question were carried" to such a height as to threaten even the existence of that church hi this country. In 1771 the American party obtained the ascendency; and in the following year they established American church courts in that church, in which act this German Reformed Church participated. But it was many years after, before the same reformation took place in the German Reformed Church in this country. This revolution in the Dutch Church was effected peaceably, with the sanction of the Synod of North Holland, and the Classis of Amsterdam. The whole government of the Dutch Church was administered after 1772, by local classes and synods. All the Dutch Reformed churches in New-York, and also the church in question, acknowledged the jurisdiction of the classis of New-York, and of course became integral parts of that church, as one body, governed by its constitution and subject to its judicatories.

I will now inquire whether the church in question was, in its origin, a Calvinistic church. It is not pretended but that the Dutch Reformed and German Reformed churches in this country were, and had been from their first formation, Calvinistic in their doctrines; and very strongly and decidedly opposed to the doctrines of the- Lutheran church.Indeed" the German Protestant churches, which embraced Calvinism, took the name of German Reformed, to distinguish them from the German Lutheran churches. That there had existed from an early period in the history of the reformation, and does still exist, a marked, striking and irreconcilable difference in doctrine between Calvinists and Lutherans, is a fact of such notoriety as not to require proof. I should deem it an act of supererogation to search among the learned doctors who have expounded the creeds of the two sects, for the evidences of that difference; for I cannot suppose that it is denied or doubted, that such difference exists. I shall, therefore, assume it as an historical truth, that so far as this case is concerned, and in respect to the applicability of the law above quoted, there is a difference; and one as material in this controversy as if one of these parties had been of the Episcopal or Catholic faith. '

The first and far the most important piece of testimony upon the particular tenets held by this church in its earliest formation, and during the first few years of its history, is found in the letter written by the minister, elders and. deacons of this church to the Classis of Amsterdam, in 1766. It is indeed/ the only account we have of its early history. From this letter it appears that a considerable number of protestant Germans had settled from time to time in New-York, and many of them had attached themselves to the Dutch Reformed Church; which it will be remembered was strictly Calvinistic, and was based upon and rigidly enforced the articles of faith which were settled in the Synod ofDort, in 1618 and 1619. Those who thus attended the Dutch Church had acquired some knowledge of the Holland language, which was used in that church ; but others who had no knowledge of that language, were, in the language of the letter “ compelled to hear the preaching of God’s word, in the German Lutheran Church.” Here we have the proof, that prior to the year 1758, there was in New-York a German Lutheran Church, and a Dutch Reformed Calvinistic Church, and that such of the Germans referred to in that letter, as had any knowledge of the. Dutch language, attended the Dutch Church, and such of them as could not understand preaching in Dutch, were compelled to hear God’s word preached, if they heard it at all, in the Lutheran Church. This affords a plain recognition of the difference then existing among the Germans—part were Calvinists and part Lutherans. The letter proceeds: “ This deplorable condition induced those who had resided here some years, to reflect whether some plan might not be devised to establish the worship of God in their mother language.” What is this “ deplorable condition” to which the writers refer? It was the fact that some of their number had been compelled, owing to their ignorance of the Dutch language,and there being no Calvinistic German preaching in the city, to “ hear God’s word preached in the German Lutheran Church.” The elders and deacons who probably assisted in the formation of this church, and well understood the prevailing feeling among their brethren at the time, call • it a “deplorable condition.” No stronger language could well be used to express their opposition to Lutheranism. There can be no reasonable doubt, I think, but that those Germans who collected together and formed this church were Calvinists; and that the church was organized for the very reason that they could not consistently with their religious faith, hear Lutheran preaching. The letter then gives an account of the purchase of a church by those Germans; of the troubles they had with their first pastors, and the arrival of Dominie Kern, in 1763; of his representing to them that independency in churches was very dangerous both to church and pastor, and that they resolved in Oct. 1763, to form a connection of that church with the Classis of Amsterdam. This connection which took place formally in June, 1764, is additonal and conclusive proof of the Calvinistic character or the worshippers in that church. With a full knowledge both by pastor and people, of the character of the Dutch Church in this respect, we find them uniting readily with that church, and placing themselves under its ecclesiastical jurisdiction. I would also advert to the declaration of trust executed in 1765, the year in which the church was rebuilt. It commences with the form of a penal bond, and the condition is, that the signers will hold the premises described, which “certain Ger man and Swiss inhabitants of New-York had lately purchased by contribution and with the assistance of divers charitable persons, and had begun and were carrying oh the erection of "a chüréh thereon'for-the worship of God,” in trust for this society. Their"minister is one of the obligees; and beds described as “ the Rev. John Michael Kern, minister of the gospel, and present pastor of the 'Calvinistic Church, worshipping in the German •tongue.” A recital in the deed says “ and whereas "¿11 parties are inclined to -preserve the said estate, in all times "coming, for the pious Uses aforesaid /” which very plainly means the pious use of a Calvinistic Church for the worship of God, being the Only Use previously mentioned. "And as-it is‘called in-the deed a 1 Calvinistic Church, any other Use "would be a perversion of the "trust. 1 cannot 'better illustrate the opposition between the Lutheran and Reformed Dutch denominations'than by quoting What the Rev. Mr. Muhlenburgh, who is called "a venerable patriarch of -American. Lutheranism, says in his account of the first -Lutheran society in that city. “ "Whilst the territory,”'he states, “yet belonged to Holland, the-few Low Dutch Lutherans were compelled to hold their worship-in private; but after it-passed into the possession of'the -British in 1664, liberty'was granted them, by all the successive governors, to conduct their worship publicly, without any obstruction.” During this period, it should be remembered, the prevailing religious sect, among the inhabitants of New-York and the rest of the colony, -was 'the Dutch Reformed, as estáblished by the Synod of "Doit.

From the period of the-union with the Dutch Reformed church in 1764, to-the dispersion that took place in consequence of the occupation of New-York by the British in the American revolution, the "connection between -this church and the Dutch chürch was in all respects complete. Tjrey -had one. faith and one government. -This'church was represented in the church courts; and-in alb matters of faith and discipline" was subject to the appropriate tribunal of the Dutch Reformed church. The Rev.-C. F. 'Foeritig was settled over this church as its pastor, in 1772, arid the act of installation was perforated by-Dr. Laidlie, one" óf the preachers of the Dutch church.

From all these facts, I conclude that this church wasinriís formation, and so continued at least until the revolutionary war, a Calvinistic church in its strictest sense. It was during this time that the donations and contributions were made, with which the first church was bought, and the new one built. It appears by the case, that after the new church was built, in 1765, the society had contracted a large debt in building, beyond what it then was able to collect from its members. It is reasonable to presume that this debt was soon after discharged from the donations of its friends, as nothing further is said of it. All these contributions and donations were made to a religious community, professing a Calvinistic faith, and governed for the greater part of the time, and all the time after they had placed themselves under any church government, by the judicatories of the Dutch Reformed Church, which professed the same faith. The property thus acquired by this church before the war, formed the larger portion of all they ever acquired, as far as.I can discover from the case. This property was devoted by the donors to the pious use of sustaining religious worship in that church, according to the faith and doctrines professed and preached therein at the time; and those in that church who still adhere to that faith, have a right that the trusts then created shall be enforced. I know of no exception to this rule, unless the whole church have become converts to a new faith. If any remain true, to the doctrines of the founders, they have a legal right to call upon the court of chancery to save the trust from any attempted perversion.

The next question is whether the appellants have, as alleged, converted this church into a Lutheran church. It is admitted that the present trustees, or those who hold possession of the property and claim to be the rightful trustees, have cast oif the jurisdiction of the Dutch church, and so far have rejected Calvinism. And when it is remembered that by the constitution of the Dutch church, of which this church was a member at one time, no pastor can be settled over any church under their care without the approbation of the classis, it will be seen, that the repudiation of the authority of the classis is no inconsiderable item of proof upon this point; for they might well suppose that the classis would never consent to the settlement of a pastor over that church, unless his doctrinal sentiments corresponded with those of the Dutch church.

I find no evidence that. this church, or any portion of it, had departed from the faith and doctrines, of its founders ; nor that any attempt had been made to ingraft upon the church another faith, until the year 1823. From its foundation in 1758, until that time, a period of 65 years, it had been uniform in its support of Calvinistic doctrines, however much it had rebelled against the government of the Dutch church. In that year the testimony shows that efforts commenced to convert it into a Lutheran church. David Fisher swears that in 1823, after the church had removed to Forsyth-street, a desire was shown by some of the leading members to make it a Lutheran church; and that he left the church, among other reasons, because an intention had been avowed, of calling a Lutheran minister. John P. Dietrich also proves that the minority, that year, expressed a determination to connect the church, if possible, with the Lutheran church. From that time they broke off all connection with the Dutch Reformed church, and claimed to be an independent church. And. that claim is still insisted upon. There is nothing of importance in the proceedings of the church from this time, that proves the doctrines that prevailed, or the character of the pastors, until 1834, when they settled the Rev. Mr. Smith. He was their pastor until 1837, when he died. The respondents introduced the Rev. W. D. Strobell as a wit ness, who states that he is a. pastor of a Lutheran church, and secretary of the Lutheran ministerium of the state of New-York; that he knew the Rev. Lewis Smith; that he was also a member of the Lutheran ministerium; that he lived and died a member of that body; as were also the Rev. Mr. Geisenhamer, and the Rev. Mr. Myer. The father of Mr. Smith proves that he was educated as a Lutheran minister and licensed to preach as such; and there is no evidence that he • ever professed any other doctrine, or submitted to any other ecclesiastical connection than Lutheran. The following is some part of the examination of Mr. Myer, and it shows what doctrines he held. “ Before you accepted the call, did you not think it incumbent upon you to ascertain the particular faith of the church ? I did not. Do you think you could, while a Lutheran, with propriety assume the situation of pastor to a Calvinistic church 1 By my standard of propriety, I thought it perfectly proper to do so.” “ If a church was originally established as a church receiving the Calvinistic system of religion, do you think it could ever pass into the hands of members of the Zuinglian church, and still preserve its identity ? Of course it could not.” “If you had not supposed that the church in question received the faith of Zuinglius, as distinguishing it from the branch of the same church receiving the faith of Calvin, do you think that you could have with propriety obi ¡gated yourself to preach its faith 1 I think not, not being willing to preach Calvinism.”

After the exhibition of these facts, it appears to me, that I cannot be mistaken in saying that the proof is full to show that since 1834, at least, the trustees of this church have applied the trust funds in their hands, and are still applying them, to the support of a sect essentially varying in faith and doctrine from the founders of the church, and the donors of the fund. So far as religious teaching is concerned, that property which was given by the donors in trust and confidence that those who ever after should be called to administer it would employ it in the support of the Calvinistic faith, has been perverted to the support of another faith. This I deem a breach of the trust upon which the fund was originally appropriated. The will of the donors has been disregarded; and those who have taken it in charge under a promise to employ it according to the pious use designed by the founders, have in truth used it to sustain a different faith. I might add, that from the whole course of examination of witnesses by the appellants’ counsel, it does not appear that their object was to prove that their clients were not Lutherans; but to show that there was no material difference between Lutherans and Calvinists. All ecclesiastical history refutes such a position; and the testimony in this case abundantly confirms the historical accounts of the difference.

The third question in this case which I will now proceed to discuss, relates to the government of this German Reformed Church. In the first place, what is the law on this subject? In the case of The Presbyterian Cong. v. Johnston, (1 Watts & Serg. 37,) Gibson, Ch. J. says, “I concede that subjection to á particular judicatory may be made a fundamental condition of a grant. And even without an express condition, it might be a breach of the compact of association, for the majority of a congregation to go over to a sect of a different denomination, though it were different only in name. For instance, a majority of a congregation of seceders could not carry the church property into the Presbyterian connection; though these two sects have the same standards and plans of government.” Again, in Den v. Bolton, (7 Halst. 205,) we find the same principle. Until January, 1824, “the Dutch Reformed Church in the English neighborhood” in Bergen, N. J. belonged to the Classis of Bergen. At that time a meeting was held in the church, consisting of the elders, deacons and twenty-five heads of families, in which it was determined to dissolve their connection with the Classis of Bergen. On the same day the consistory of that church met and resolved that their connection with the Classis of Bergen, and the general synod was dissolved, and they pro-, tested against the authority of the classis and synod, inasmuch as those bodies had departed from the doctrines and standards of the Reformed Dutch Church. Here all the trustees concur in this act of separation. Upon this case the court say, “ The residue of the congregation remained members of that church, classis and synod; deprived of their spiritual leaders, but in no degree deprived of their standing in the church, or having their rights taken away or impaired. Though those who withdraw still adhere to the faith and doctrines of the Reformed Dutch Church, as contained in its standards; yet simply holding the same faith, without submitting to the government and discipline of a church, cannot keep a man a member of that church. Members of the Dutch Reformed Church, and of" the Presbyterian Church, are not members of the same church, though their faith is the same; the difference between them consisting in the form and mode of church government. To constitute a niember of any church, two points at least are essentia], a profession of its faith and submission to its government.” To these principles I fully assent. There must necessarily be government in every church, as well for the due regulation of its temporal affairs as for the preservation of the integrity of its faith. No stronger instance can well be imagined than the one before the court, to illustrate the importance of preserving the supervision of church judicatories. If this church had not thrown off its subordination to the government of the Classis of the Dutch Church, it could not have become Lutheran in its doctrine. Any minister to whom they would have tendered a call to be their pastor, would then have been obliged to submit to an examination of a committee of the classis, and if not found sound in Calvinistic doctrine would have been rejected; and thus the church would have been preserved in the faith of the founders; and the trusts connected with the donation of the estate would have been executed.

But it is denied by the appellants that this church was ever under the jurisdiction of the courts of the Dutch Reformed Church ; and they go further, and insist that all religious societies, in regard to the management of their temporalities, are free and independent of all church judicatories; a position utterly at variance with all legal decisions, and one that surrenders all property held in trust for pious and'charitable uses, to the fitful management and caprice of the ever varying feelings and motives of trustees. Such a doctrine is rejected, with some warmth by the vice chancellor; and I should deplore the day in which it received any judicial countenance. I shall certainly spend no time in refuting it; but will inquire into the facts in this case that will throw light upon the question, whether this church has been at all times an independent church.

I have shown, 1 think, that it was Calvinistic in its origin, and that in 1763, upon the representation of its pastor, Dominie Kern, that “ independency in churches was dangerous both to the church and pastor,” this church resolved to join the Classis of Amsterdam. In June, 1764, its pastor received an invitation to attend a conference of the Dutch Reformed Church; and thereupon the consistory of this church had a meeting, in .which it was again resolved, “That inasmuch as by subordination to the Classis of Amsterdam, the best interest of this church can be better promoted, than by standing independent, the necessary credentials for this purpose be duly prepared and undersigned.” They accordingly chose delegates who attended ,the conference; and this connection and subordination continued in fact and in form from that time to 1772, when the Dutch Reformed Church in America formed an independent government of its.pwn with the consent of the Synod of North Holland. This church was represented in the assembly that formed the constitution of the Dutch Church, and assented to its acts. From.that time it formed a part of the Classis of New-York, and was represented in it, and was as completely in subjection to it, as any other church in its connection, until the wai of the revolution broke, out. It was during this period that the-larger portion of the property in question was acquired from donations and subscriptions. For all the purposes of this argument this connection must be deemed continued in form until 1784. In May of that year, the consistory met at the request of Dr. Livingston, who was engaged in reorganizing the judicatories, of the Dutch Church,to consider “whether they would be,” In their own language, “for the future under the protection of the said assembly, or of the synodal decrets.” And they resol ved never to vote for that union, and set down certain reasons, “for -the information of.posterity.” These reasons contain" an explicit admission pf the .former union with and subordination to the Classis of the Dutch Church. And we have also the legal opinion of the consistory, “that in the way of law and right the congregation ought to be independent of all churches of other nations and languages.” Not independent, in the sense that the appellants use the term, but only of all other nations and languages. At the same time that they express this resolution, .that there may be no mistake- as to their meaning, they put on record the expression of their design to unite in forming church -judicatories in union with other German congregations when they shall be sufficiently numerous. All their difficulties and objections seem to arise from a difference of language. In consequence of these proceedings that church failed to be represented in the Dutch Classis from that time until the year 1800. Previous to 1799 the Classis of the Dutch Church invited this church to resume their relation with, and to have delegates again take their seats in the classis; and in December of that year the consistory of this church unanimously resolved that the invitation be accepted, and that Mr. Milledoller, their pastor, make the necessary arrangements for carrying it into effect. In 1800 the church was represented in the classis, and a union in form was again effected; which continued without any material interruption until 1823. During this period this church was confessedly under the jurisdiction of the classis, asked its aid and direction according to the formulas of the Dutch Reformed Church, in settling and dismissing its pastors, and was in all respects as it bad been from 1764 to 1784, in subordination to the government of that church. In 1823 troubles broke out afresh in this church ; and it appears from the minutes of the classis, that it had been represented to them, that the consistory and trustees of the German Reformed Church contemplated dissolving the connection of said church with the classis, and con neeting themselves with the German Lutheran Church. The classis appointed a committee to consult with the officers of this church, and with authority to state that the classis would not consent to their dismission. In the preceding month of February, the congregation had a meeting at which they passed a resolution, in which they disavowed all connection with the classis of the Dutch Church. It also appears from the testimony of witnesses and the minutes of the classis, that in October, 1823, an application was made by the consistory of this church to the classis, to be dismissed from that classis, and transferred to the German Reformed Synod of the United States, and that that application was urged upon the classis by delegates from the consistory; but it was refused. From that time there has been no jurisdiction or authority exercised over this church by the classis of the Dutch Church. After the death of the Rev. Mi. Smith, in 1837, an attempt was made to revive the former connection, and the result was this suit. We then have this German Reformed Church, agreeing in all respects in faith and doctrine with the Dutch Church, seeking and perfecting a cordial union with that church in 1764, identifying itself also in government and discipline with that church, and participating in its judicatories for twenty years, so far as the acts of the parties .were concerned. For the next sixteen years, we find that this church declined to send delegates to meetings of the classis, and refused to acknowledge its authority, and stated their reasons for such refusal. But during this period the action of the classis was merely that of forbearance; not a surrender of its right of jurisdiction. In 1800 the connection was resumed, and the authority of the classis unanimously acknowledged, and actively exercised for the next twenty-two years; when the attempt was again made by a majority of this church to throw off the government of its judicatories. But conscious of their inability to effect it by their own motion, the consistory made a formal application to the classis to be dismissed from its connection and jurisdiction. That request being denied them, they have since omitted to be represented in the classis, and denied its right of government. And the question now is, is this church rightfully under the government and subject to the authority of the classis of the Dutch Reformed Church 1 It seems to me that a simple statement of the facts in relation to its connection with the judicatories of that church furnishes a ready answer to the question. Unless the principle can be maintained that churches may form and dissolve their allegiance to the regularly constituted church judicatories at pleasure; and preserve all their rights to property held in trust for their use, I can find no argument for saying that the authority of -the classis is in the least impaired. On -the contrary, I maintain that it was not in the power of the- consistory, nor of the congregation by a majority vote, to effect a separation. The cases I have cited establish that doctrine fully, and show that those only who remain faithful in their allegiance to the government of the church, are the rightful members of the church, and the only cestuis que trust of the property held for the use of that church. Any other doctrine strikes at the foundation of all order: and abandons all protection of property given in trust for pious uses. Should the courts refuse to carry this principle into effect, they will virtually say to the donors of these most interesting charities, “If those to whose care and fidelity you have entrusted the funds given and designed by you to be expended in particular pious uses, shall decide to devote them to other uses, we have not the right and power to remove or restrain them.” This I trust the courts will never say. One of the most useful instances of the exercise of equity power, is its guardianship of trust estates. And such especially, as are held for charitable and pious uses, should call for the vigilance of that court, in securing the administration of them, according to the will and expectation of the donors.

I conclude by expressing my opinion that the fund in question in this case was given in trust for the support of the worship of God, in the German Reformed Church in New-York; and that the doctrines to be taught there should be those usually maintained by the adherents to the Calvinistic faith; and moreover that in order to secure the church against innovation of doctrine, or other defection, it should continue under the government and discipline of the judicatories of the Dutch Reformed Church. The appellants, who now bold this fund, deny that they hold it on any such condition or trust, and refuse to acknowledge any such trust. They were elected trustees by those who deny the supervisory power of the classis of the Dutch Church, and who have introduced Lutheranism. That proceeding I consider void, and am of opinion that the appellants have no lawful control over the fund.

I see no reason for questioning the regularity of the election of the respondents. Since 1837 they and their friends have kept up a regular succession of trustees, chosen by those who adhered to the faith and government of the church—the only persons entitled to vote for trustees. The fund should be committed to their hands.

There is no force in the objection arising out of the dismissal of a former bill by the vice chancellor. His decision was not founded upon .the merits; but the order was rather entered by consent.

The decree of the chancellor should be affirmed.

On the question being put, “Shall this decree be reversed?” the members of the court voted as follows:

For reversal: The President, Mr. Justice Jewett, and Senators Barlow, Beers, Bocicee, Burnham, Chamberlain, Folsom, Hard, Johnson, Lester, Sedgavick, Talcott and Wright—14.

For affirmance: Senators Backus, Deyo and Porter—3.

Decree reversed .^(a)

(a) The first three propositions of the reporter’s abstract are stated with some hesitation, but are believed to be the reasonable result of the opinions given in this court taken in connection with those delivered in the court below z but it must be conceded that they are not authoritatively established by the judgment of this court. The other points stated in the abstract arc mainly the opinions of individual members of the court, it being impossible to collect the grounds upon which a majority placed the judgment of reversal.

For a further discussion of the principal questions involved in this case, see Jim» kern v. The Lutheran Churches of St. John's and St. Peter's, (1 Sandford's Ch jR. 439.)