Hale v. Everett | Cases | Westlaw

**114 The plaintiffs and the defendants, except Rev. Francis E. Abbott, are members of an incorporated parish. Mr. Abbott has never been a member, but was pastor of the corporation from August, 1864, to the spring of 1868, at which time two parties arose in the corporation, one party desiring and the other party opposing the employment of Mr. Abbott for another year. After various meetings and votes, the contest terminated in the triumph of the former party, April 27th, 1868, by the election of the wardens who were the candidates of that party, that election being the final test vote. The plaintiffs are certain individuals of the minority; the defendants, except Abbott, are the majority.

The plaintiffs, in their bill, ask the court to restrain the use of the ““meeting-house of said society.” And, by the decree^a1 of the court now *134 made, all “wardens and members” of the corporation are “jointly and severally strictly enjoined and forbidden to hire, employ, allow, suffer, or permit said Francis E. Abbott, or any other person, to preach and inculcate in the meeting-house of said society, doctrines subversive of the fundamental principles of Christianity, as generally received and holden by the denomination of Christians known as Unitarians;” and “said Francis E. Abbott, and all and every other person or persons,” are “forever strictly enjoined and forbidden to occupy said meeting-house of said society for the purpose of preaching and inculcating * * any * * doctrine or doctrines subversive of the fundamental principles of Christianity, as generally received and holden by the denomination of Christians known as Unitarians.” The decree carefully distinguishes “the fundamental doctrines of Christianity, as generally received and holden by the denomination of Christians known as Unitarians,” from the fundamental doctrines of Christianity, as generally received and holden by other denominations of Christians. And this distinction is universally recognized as vast and vital.

**115 Unitarianism and Trinitarianism are everywhere acknowledged to be ““antagonistic systems.” Princeton v. Adams, 10 Cush. 129, 132. Trinitarians have always, theoretically and practically, denied that Unitarians are Christians in the theological, Trinitarian sense. The orthodox denominations regard the doctrine of the vicarious atonement as the fundamental, central, and supreme principle of Christianity; *135 Unitarians regard it as “hideously heathenish.” Ellis's Half Century of the Unitarian Controversy XV; 5 Christian Examiner 512. Dr. Worcester, in his first letter to Dr. Channing, said,--“The doctrines of atonement by his death, and justification through faith in his blood, * * together with all the truths and sentiments, all the powerful motives to repentance, faith, and holiness, depending on those cardinal doctrines, at once fall to the ground before you! * * If you hold to atonement, yet unquestionably not in the sense of a proper propitiatory sacrifice. Upon this denial of atonement must follow of course the denial of pardon procured by the blood of Christ, of justification solely through faith in him, of redemption from eternal death unto everlasting life by him. * * The God whom you worship is different from ours.” In 1830, Professor Stuart, of Andover, quoted, and evidently assented to the truth of, the remark of Belsham, the English Unitarian, that “we do not worship the same God,”--and stated that the Unitarians made against the orthodox charges “of worshipping a God who is a tyrant, of propagating horrible and blasphemous ideas of the Divinity, of worshipping a God who is no better than a devil.” So liberal a Trinitarian as Dr. Arnold, of Rugby, held the tenets of the Unitarians to be irreconcilable with the essentials of Christianity. Stanley's Life of Arnold (8th Am. ed.) 231.

In 1826, Dr. Channing said of Trinitarianism,--“Its leading feature is the doctrine of a God clothed with a body--of the Infinite Divinity dying on a cross; a doctrine which in earthliness reminds us of the mythology of the rudest pagans. * * Suppose, then, that a teacher should come among you, and should tell you that the Creator, in order to pardon his own children, had erected a gallows in the centre of the universe, and had publicly executed upon it, in room of the offenders, an infinite being, the partaker of his own supreme divinity; suppose him to declare that this execution was appointed as a most conspicuous and terrible manifestation of God's justice, and of the infinite woe denounced by his law; and suppose him to add, that all beings in heaven and earth are required to fix their eyes on this fearful sight, as the most powerful enforcement of obedience and virtue: would you not tell him that he calumniated his Maker?” 3 Channing's Works 173, 197. In a sermon on the atonement, published in 1844, Dr. Peabody, quoting the “terrific language” of one of Dr. Watts's hymns, which represents the Deity as pacified by “Jesus' blood,” says,--“When I have heard these words read or sung, * * they have * * placed before me the semblance of a blood-thirsty fiend, at first ravening for his prey, and to be approached with safety only when satiated with carnage.”

**116 The decree is a perpetual injunction upon all the members of this corporation and the whole world. It forever prohibits the preaching and inculcating of doctrines subversive of Unitarianism in “the meeting-house of said society.” The doctrines of the Trinity and the vicarious atonement are peculiarly and entirely subversive of the fundamental principles of Unitarianism. Any Trinitarian minister, missionary, agent, or other person, who should on a single occasion, on any *136 day of the week, occupy this house for the purpose of preaching and inculcating either of those doctrines; and every member of the corporation who should “allow, suffer, or permit” any person, at any time, or in any form or manner, to preach and inculcate either of those doctrines in this house, would be liable to fine and imprisonment for the criminal offence of violating this decree. If Mr. Abbott should become a Methodist or Baptist, he could not, in this house, endeavor to convert his former parishioners, even upon their own unanimous invitation, without incurring the same penalty. And if all the members of this corporation should become orthodox, and should, “in the meeting-house of said society,” listen to an orthodox sermon on the vicarous atonement, every one of them would be guilty of a flagrant breach of the injunction. Banishment from their own meeting-house is to be the punishment of their conversion. It may be a serious question whether the choir or congregation can safely sing the Trinitarian doxology. If a Trinitarian minister (contrary to usage) should exchange pulpits for a Sunday with a minister of this parish, the former will need to prepare himself with extreme caution for a perilous service. It would be strange if another temple could be found in any country more thoroughly fortified against orthodox doctrines than is “the meeting-house of said society” by the decree made in this case.

The carefully chosen language of the decree seems to vouch for the theological soundness of Unitarians as Christians, and to elevate them to a certain ecclesiastical position among other sects, which they have not been able to acquire by their own unaided exertions. Undoubtedly they are, in law, the peers of any other sect; but whether they are Christians, in the technical, ecclesiastical, Trinitarian sense, entitled, as theological equals, and by virtue of the genuineness of their Christianity, to the Christian fellowship of other sects, is a question upon which it is not our official duty to intimate an opinion.

The decree forbids this parish ever to “permit” any person to preach in its meeting-house “who preaches and inculcates a disbelief in the doctrine of the Lordship and Messiahship of Jesus Christ, as taught by him in the New Testament Scriptures, or a disbelief in Jesus Christ as the great head of the church, or of his divine mission and authority as a religious teacher, as thus taught by him.” This prohibition is a clear assumption of ecclesiastical jurisdiction. It is a decision that the doctrines mentioned were taught by Christ: we cannot enforce the decree without deciding what doctrines were “taught by him” on those subjects; and the power of deciding what he taught on those subjects, is the power of deciding what he taught on all subjects. If we can authoritatively establish what are the doctrines of the Lordship of Christ, his Messiahship, his headship of the church, and his divine mission and authority as a religious teacher, “as taught by him,”--if it is our duty to settle theology to that extent, it is our duty to settle the whole body of theology for every parish in the state. It is supreme ecclesiastical authority, maintained by the civil power, that is asserted.

**117 In the meeting-house of this parish, the decree establishes the Lordship of Christ, “as taught by him,” and prohibits the preaching of any *137 doctrines subversive of the fundamental principles of Unitarian Christianity. The doctrine that Christ was not God, nor a partaker of the supreme divinity, being one of those fundamental principles, is thus adjudged to be a doctrine of the Lordship of Christ, “taught by him.” It is Unitarianism that is established as the religion taught by Christ.

I. Has this parish the corporate power “to hire, employ, allow, suffer, or permit said Francis E. Abbott, or any other person, to preach and inculcate, in the meeting-house of said society, doctrines subversive of the fundamental principles of” Unitarianism? Laying aside, for the present, all question of a use of property confined within any narrower limits than the powers of this parochial corporation; supposing “the meeting-house of said society” to be under no other restrictions than those it derives from the corporation; and considering the subject of corporate power alone,--would the parish, in permitting Abbott or any other person to preach Trinitarianism or theism in its house, exercise its corporate power? What theological restrictions are imposed upon parochial corporations by the constitution and laws of the land? Is it the right of all such corporations to decide for themselves what theology shall be preached in their pulpits, or is it the duty of this court to decide that question for them?

It is necessary to remember that this society is a New Hampshire lay corporation, and not an English ecclesiastical one; that the peculiarities of the latter, and the ecclesiastical courts, ancient clerical prerogatives and religious abuses of amalgamated church and state, are not here; and that the idea of ecclesiastical immutability, generated by or embodied in foreign political institutions, has no place in our law. “Ecclesiastical corporations are where the members that compose it are entirely spiritual persons,--such as bishops; certain deans and prebendaries; all arch-deacons, parsons, and vicars, which are sole corporations: deans and chapters at present, and formerly prior and convent, abbot and monks, and the like bodies aggregate.” 1 Bl. Com. 470. Our “incorporated societies are not to be regarded as ecclesiastical corporations in the sense of the English law, which were composed entirely of ecclesiastical persons and subject to the ecclesiastical judicatories, but as belonging to the class of civil corporations, to be controlled and managed according to the principles of the common law, as administered by the ordinary tribunals of justice.” Robertson v. Bullions, 11 N. Y. 243, 251. “Public teachers of religion and morality, chosen by a corporate body, are to every purpose civil officers of the state, as much so as schoolmasters and magistrates. * * Public instruction in religion and morality, within the meaning of our constitution and laws, is, to every purpose, a civil and not a spiritual institution. * * The minority must submit to the judgment of the majority.” Muzzy v. Wilkins, in the county of Hillsborough, May, 1803; 4 Chief Justice Smith's MSS. Reports 65.

**118 Congregationalism, in its broad and general meaning, is a form of church polity, a system of ecclesiastical organization, the essential peculiarity of which is, that it maintains the independence of each *138 congregation or society, in all matters of ecclesiastical government, discipline, doctrine, and practice, including the right of the majority to change its religion, to choose its ministers, and to inaugurate them, or employ them without any inaugural ceremonies, as it sees fit. It may be connected with any form of doctrine and any mode of worship. Baptists, Universalists, Unitarians, and Trinitarian Congregationalists are different divisions of the Congregational denomination, or different denominations of Congregationalists. The Dublin case, 38 N. H. 459, 516-548; Muzzy v. Wilkins, p. 35; Henderson & a. v. Erskine, in Cheshire, October, 1802; 5 New American Cyclopedia 606; Baird's Religion in America 555-564; Lawrence's N. H. Churches 11; Wayland's Baptists 14; Hutch. Coll. 482, 500. “This constitution of church government was adapted to the constitution of civil government, both as popular as can well be conceived.” 1 Hutch. Hist. Mass. 371, 372.

The definition of Congregationalism was forcibly illustrated in Henderson & a. v. Erskine and in other cases, more than sixty years ago, when towns were parishes, and, as such, had power to elect public teachers of piety, religion, and morality, and to support them by taxation. The constitution provides that no person of one sect or denomination shall be compelled to pay toward the support of the religious teacher or teachers of another persuasion, sect, or denomination. Towns, in which the majorities were Trinitarian Congregationalists, elected Trinitarian Congregational religious teachers, and taxed Universalists as well as others to support them; and the courts held that Universalists were Congregationalists, and must pay the ministerial taxes. Those decisions were manifestly wrong in this: they were based solely on the indisputable proposition that Universalists are Congregationalists, in disregard of the two other propositions equally indisputable and equally important, that Universalists are one of several Congregational sects, and that religious liberty is the object of the constitutional provision. In 1804 the Freewill Baptists, in 1805 the Universalists, and in 1807 the Methodists, applied to the legislature for relief from the tax-paying consequences of being held not to be religious sects distinct from the puritans, and procured the passage of resolutions declaring them to be religious sects entitled to the constitutional privilege. Whether they were religious sects, within the meaning of the constitution, or not, was a judicial and not a legislative question; but, by the unconstitutional and void resolutions of the legislature, the erroneous decisions of courts, juries, towns, and town officers were practically reversed. In holding Universalists, whom they regarded as infidels, to be liable, as Congregationalists, to Congregational taxation, the puritans illustrated the broad idea of Congregationalism as a system of ecclesiastical government without any theological limitations.

**119 This court held, in The Dublin case, that the right of each church to choose and change its ministers and doctrines is the distinguishing principle of Congregationalism; that it is too clear for dispute that, in the origin and outset of Congregationalism, each church had the right to *139 choose and change its ministers and its standards of religious doctrine; that this principle always has been and still is the fundamental theory of the Congregational system, and that Unitarians are Congregationalists. That case was very thoroughly considered; the decision was unanimous; and no suggestion comes from any quarter that there can be any doubt as to its correctness on those points.

The Congregational or independent theory was the New Hampshire theory, from the first settlements at Portsmouth and Dover in 1623. It was not only the ecclesiastical polity of voluntary organizations; it was established by general custom and law as a principle of municipal administration. The New Hampshire provincial act of 1714, entitled “An act for maintenance and supply of the ministry within this province,” provided that it should be lawful for the freeholders of every town, convened in public town-meeting, as often as they should see occasion, to make choice of a minister or ministers, and to agree with such minister or ministers what salary should be paid,--salaries and expenses of meeting-houses to be defrayed by taxation, like other town charges. N. H. Province Laws, ed. 1771, pp. 55, 138. This act confirmed and sanctioned the legal custom that had previously prevailed, and it is an authentic declaration of the adoption, by the provincial government, of an ecclesiastical system of parochial independence. The majority of the voters, in town-meeting, chose their minister or ministers as often as they saw occasion. They could at any time choose several ministers of different denominations, Trinitarian and Unitarian, to preach, every Sunday, conflicting and contrary doctrines utterly subversive of each other on the most essential and vital subjects. They could, at different times, choose ministers of different beliefs, and change the town religion every year, and oftener. They were no more restricted by denominational tests in the choice of their ministers, than in the choice of their representatives or selectmen. They had as good a right to elect a layman for minister as to elect a clergyman for town clerk, and no more ceremony was necessary in the former case than in the latter. All systems of ecclesiastical tests, sacerdotal domination, hierarchical government, and superior judicature were rejected. The fundamental principle of parochial independence, established as the general law of the land, confirmed the natural right of each society to govern itself, and to choose and change its minister and its religion,--the right of the majority of each parish to rule the parish in all ecclesiastical affairs. It was an ecclesiastical institution of the government; but that institution was the independence and freedom of each society, when each town was a society. It was religion established by law; but it was such religion as the majority of each town or other parish might choose and change every day in the year. It was, among other things, the right of apostasy, to be exercised by each parish in its corporate capacity, by major vote, directly or indirectly.

**120 The independent system continued through the provincial period and the revolution, and, on the organization of the present form of government, was incorporated in the constitution, where it remains to this *140 day, after an uninterrupted duration of nearly two hundred and fifty years, as a fundamental principle of New Hampshire law. A religious establishment coëval with New Hampshire history, it is as firmly settled, as fully developed, as clearly defined, as prominent and conspicuous, as any other New Hampshire institution. It has been constantly and universally enjoyed, and regarded as an indispensable part of a free government. The religious establishment of England seems to have been adopted to some extent in the Episcopalian colony of Virginia--Terrett v. Taylor, 9 Cranch 43, 46; but in this province, the English Church, though “particularly countenanced and encouraged” by the crown and by Episcopalian governors,--Pawlet v. Clark, 9 Cranch 292, 333, 334,-- did not flourish, and its polity did not become a part of the organic structure of the state. At the close of the war of independence, when the people framed the first permanent state government, and embodied in the constitution the free institutions they were establishing, it is not strange that they inserted therein the parochial independence which had been one of their cherished institutions for more than a century and a half. Article VI of Part I of the constitution, which was adopted in 1783 and took effect in 1784, provides that the legislature may authorize “the several towns, parishes, bodies corporate, or religious societies, within this state, to make adequate provision, at their own expense, for the support and maintenance of public Protestant teachers of piety, religion, and morality.

Provided, notwithstanding, That the several towns, parishes, bodies corporate, or religious societies, shall at all times have the exclusive right of electing their own public teachers, and of contracting with them for their support and maintenance.”

And this article was retained in the constitution of 1792. It does not confer any power that the legislature would not have if this article had been omitted. The legislature could authorize towns or other parishes to support ministers, under those general grants of legislative power by which it passes acts of incorporation, and a great variety of other statutes. Concord R. R. v. Greely, 17 N. H. 47, 54; Company v. Fernald, 47 N. H. 444, 458. But the provision, that all parishes shall at all times have the exclusive right of electing their own public teachers, is the provincial system of parochial freedom, incorporated in the organic law of the state beyond the reach of legislative action. Whatever sectarian ties of advisory councils, ecclesiastical fellowship, or theological harmony, or other limitations of parochial autonomy, were associated with the idea of Congregationalism in the minds of theologians, no such limitations were inserted in the constitution. So far as Congregationalism was a system of independent parochial government, the ecclesiastical supremacy of the majority of each parish, and an embodiment of the fundamental principle of free institutions, it was adopted as the ecclesiastical system of the state. So far as it was a system of theology, it could not be adopted without establishing a state religion;--a state religion, in any other sense than a religion of parochial independence, was not established, but was prohibited.

**121 *141 The next preceding article of the constitution, Article V, declares the natural and unalienable right of every individual to worship God according to the dictates of his own conscience and reason. Under that article, and without it, if the members of this Dover corporation are Unitarians, they have a constitutional right to apostatize from Unitarianism to Trinitarianism. And whether any of them exercise that right or not, a majority of them have the constitutional right, under Article VI, to elect a Trinitarian teacher. If the converted majority of a company of heathen idolaters should elect an orthodox missionary to preach in their temple, they would but practice one of the natural and unalienable rights of men. And the preaching and inculcating, in that temple, of doctrines subversive of the fundamental principles of heathenism, could be illegal only in a land in which religious freedom and parochial independence are prohibited, instead of being established, by law. Our Saxon ancestors exercised this right, at an early period in the history of the common law, more than a thousand years ago, when they turned their pagan temples into Catholic churches.

“Provided, notwithstanding, That the several towns, parishes, bodies corporate, or religious societies, shall at all times have the exclusive right of electing their own public teachers.” This plain grant or guaranty of elective power establishes parochial independence. It establishes the constitutional right of every parish, at all times,--at at one time, and at different times--at the time of its organization, forty years afterwards, and at all other times,--to elect public teachers of one religion or of different religions. The decree amends the constitution, by inserting this additional proviso: “Provided, notwithstanding, furthermore, That every parish, the first members of which were Unitarians, shall at all times be deprived of the right of electing a public teacher of any other than the Unitarian denomination, and shall at all times be deprived of the right to allow, suffer, or permit any person to preach and inculcate in the meeting-house any doctrine subversive of Unitarianism, and no person shall there preach and inculcate any such subversive doctrine.”

Our constitutional provision, establishing the independent parochial system, was copied almost literally from the third article of the declaration of rights in the Massachusetts constitution of 1780; and it has never been doubted in Massachusetts that the proviso secures to every society the right of corporate apostasy, although the occasions for raising a doubt have been very numerous and very urgent.

The Episcopalian Society of King's Chapel, in Boston, had been in existence ninety-nine years, when, in 1785, having become Unitarian, it altered the Episcopal liturgy. Its members asserted their constitutional congregational power by electing a Unitarian pastor, and by ordaining him themselves in 1787; and they have continued to the present time to exercise that power in the same manner, and, as a Unitarian society, to occupy the meeting-house erected for the use of the society when it was Episcopalian. They not only asserted their *142 congregational power, but they expressly and publicly asserted it as a constitutional power, and in the very words of the constitution. In a vote of the society, read and formally reäffirmed at the public ordination of their first Unitarian pastor as a part of that ceremony, they declared that

**122 “We, the wardens, vestry, proprietors, and congregation of King's Chapel, or First Episcopal Church in Boston, do, by virtue of the third article in the declaration of rights, hereby solemnly elect, ordain, constitute, and appoint the Rev. James Freeman, of said Boston, to be our * * public teacher.” Greenwood's History of King's Chapel 193. The terms of this vote show that it was drawn by some person or persons who comprehended the legal nature of the business. It is said, in Belsham's Memoirs of Lindsey, that the ceremony of ordination was performed “according to a form suggested by Governor Bowdoin;” and this occurred within eight years of the time when the declaration of rights was framed by the constitutional convention of which Bowdoin was president. One of the majority of the parish who effected this transformation was John Gardiner, who had studied law at the Inner Temple, London, and had been admitted to practise in the courts at Westminster Hall, where his abilities attracted the notice of Lord Mansfield. “Here,” says Greenwood, “was a most conspicuous, and, as we must regard it, a most happy revolution. * * The First Episcopal Church in New England became The First Unitarian Church in America. ” Id. 139. The Episcopal minority of the society vigorously protested against all the proceedings, denouncing the altered liturgy and the new “articles of faith” as “unscriptural and heretical,” affirming that the ordination was “unprecedented, irregular, and contrary to apostolic and primitive usage,” and might “be attended with fatal consequences to the interests of religion in general and that of the Episcopal church in particular,” and declaring their “utter abhorrence of measures so contrary to the doctrine, discipline, and worship of an Episcopal church, and which will include a total alienation of the property of said house from the use intended by the original donors or founders.” Id. 184. The protest was answered by the majority. Id. 185. “The validity of this ordination was furiously assailed in the newspapers of the day, as might have been expected. * * The newspaper abuse was sufficiently and pleasantly answered in a short piece attributed to the Rev. Dr. Belknap,”--the Dover pastor and New Hampshire historian,--who had recently been elected minister of the Federal Street Church of Boston, which passed from Presbyterianism to independency in 1786. Id. 142. In the piece attributed to Belknap, and published in the Centinel, the writer says,--

“On Sunday, the 18th instant, was exhibited, at the house formerly called the King's Chapel, an instance of the public exercise of a long dormant right which every society, civil and religious, has to elect and ordain their own officers. * * Invested with this right by the God of nature, secured in the exercise of it by the civil constitution, * * the independent congregation * * publicly invested with the ministerial *143 office a sensible, honest man, * * without any mysterious, unintelligible ceremonies, without any assumption of apostolic powers, without any pretended superiority of office, without any affected communication of sacerdotal effluviæ.'DDDDD' Id. 195. ““A sort of repudiation or excommunication of Mr. Freeman and his church” was issued by the Episcopal ministers of Boston, Newburyport, and Portsmouth, which at Mr. Freeman's request was published in the Centinel. Id. 142. The substance of this document was, “Whereas, a certain congregation in Boston, calling themselves the First Episcopal Church in that town, have in an irregular, unconstitutional manner” changed the liturgy of the Episcopal church, “and have also assumed to themselves a power unprecedented in said church of separating to the work of the ministry Mr. James Freeman, * * we * * do hereby declare the proceedings of said congregation * * to be irregular, unconstitutional, diametrically opposite to every principle adopted in any Episcopal church, subversive of all order and regularity, and pregnant with consequences fatal to the interests of religion; and we do hereby, and in this public manner, protest against the aforesaid proceedings, to the end that all” Episcopalians “may be cautioned” to regard “Mr. James Freeman” and “his congregation” as apostates. Id. 197. The complaint of these ministers and of the Episcopal party was, that the revolution in the society was a violation of the constitution and laws of the Episcopal church; but no one thought of denying that it was expressly authorized by the constitution of Massachusetts. It was debated whether the ordination was valid in a scriptural, ecclesiastical, and sacerdotal sense; but it was not claimed that any ordination was necessary in law. The controversy was animated, and the affair attracted much attention. The society, by the form of their vote, particularly invited an examination of the specified constitutional grant of power upon which they professed to act; and if the most careful scrutiny could have raised a doubt as to the legality of their apostasy, that doubt would not have been suppressed. In 1813, PARSONS being Chief Justice, the court held that parishes have secured to them, by the declaration of rights, the election and appointment of their ministers or public instructors, and that Mr. Freeman was the minister of King's Chapel, elected by the only competent authority. King's Chapel v. Pelham, 9 Mass. 501. And certainly no one ever supposed that, if the name of the parish had been Trinity Chapel, or the First Episcopalian Society of Christians in Boston, instead of King's Chapel, the constitution of Massachusetts would thereby have been so far abolished as not to apply to that particular parish. In 1864, the constitutional power of that parish to change its faith was not impugned in a contested case in which there was a strong interest and a pressing occasion to oppose it. Attorney-General v. Trinity Church and King's Chapel, 9 Allen 422, 433, 436.

**123 In the early part of the present century, large numbers of Trinitarian societies became Unitarian, in Maine, New Hampshire, Massachusetts, Rhode Island, and Connecticut. There were more than one hundred *144 cases of this apostasy in Massachusetts. The defection occurred in all the old orthodox Congregational societies in Boston except one, and probably in half the towns in eastern Massachusetts. Buck's Ecclesiastical Law 54; Baird's Religion in America 556, 557; list of Unitarian societies in The Unitarian Year Book for 1868. It naturally produced a bitter and prolonged controversy. A vast amount of time and thought and zeal was spent upon it. A mass of literature in newspapers, pamphlets, and volumes accumulated, presenting both sides of the controversy, in all its details, in every possible light. Ellis's Half Century of the Unitarian Controversy 3; The Dublin case, 38 N. H. 537. The most eminent legal talent that this country has produced was employed by the Trinitarians to maintain their rights of property. Suits were brought and judgments rendered; but it seems that no one, in court or out of court, ever questioned the constitutional right of apostasy, or the right of an apostate society to retain and use its meeting-house and all its corporate property for preaching and inculcating doctrines subversive of its former faith.

In 1818, the majority of an old Trinitarian society in Dedham elected a Unitarian minister. The church, an unincorporated body connected with the society, held funds separate from the property of the incorporated society. A majority of the church remained Trinitarian, and, in a suit involving the control of the church funds, Webster was counsel for the Trinitarians. Baker v. Fales, 16 Mass. 147, 488; Buck's Ecc. Law 50. The Unitarian minority of the church brought the suit and claimed the church funds on the ground that they adhered to the apostate society. The decision shows that Mr. Webster, in resisting that claim (two years after his argument in The Dartmouth College case), did not dispute the constitutional power of corporate apostasy asserted by the plaintiffs, although he did contend that the power had not been properly exercised in that particular case because of the non-concurrence of a majority of the church. He could not have failed to argue against the power itself, if he had deemed such an argument fit to be made. The court had no occasion to consider an argument that was not advanced; but, in the course of a unanimous and elaborate opinion delivered by Chief Justice PARKER, the court said,--

“That the proceedings of the parish and the council were not conformable to the general usage of the country cannot be denied. But the parish allege, in vindication of their departure from this usage, their constitutional right to elect and contract with their minister, exclusively of any concurrence or control of the church. * * That the parish have the constitutional right contended for cannot be questioned by those who will peruse the clause of the third article of the declaration of rights upon which this claim is asserted. It is there provided ‘that the several towns, parishes, precints, and other bodies politic, or religious societies, shall at all times have the exclusive right of electing their public teachers, and of contracting with them for their support and maintenance.’ This is too explicit to admit of cavilling or to require explanation, as every constitutional provision for the security *145 of civil or religious liberty ought to be. All preëxisting laws or usages must bow before this fundamental expression of the public will, and however convenient or useful it might be to continue the old form of electing or settling a minister whenever a parish determines to assert its constitutional authority, there is no power in the state to oppose their claim. * * The people having the constitutional right to choose, they must have the right to have the minister of their choice set over them, or the former right would be, in many important respects, useless. * * This doctrine is as old as the history of the New England churches, for the first minister of Salem was set apart by the lay brethren. * * And the Cambridge platform recognizes the principle. * * Constitutional privileges can never be lost by mere non-user. * * We consider, then, the non-concurrence of the church in the choice of the minister and in the invitation to the ordaining council as in no degree impairing the constitutional right of the parish.” And judgment was rendered for the plaintiffs.

**124 When the circumstances under which Mr. Webster's argument was made are considered,--the number of other cases involved, the ecclesiastical, denominational, and pecuniary interests at stake, and the ardor of the whole Trinitarian party, defendants in interest; when he discussed the manner in which the society had exercised the constitutional right set up by the plaintiffs; when the nature of his defence, the necessities of his argument, the interests of his clients (the governing party of New England), and his professional duty required him to deny the right itself, if it could be denied; and when he did not call it in question,--the constitutional right will be regarded by many as settled, so far as anything can be settled by human authority.

The Trinitarian party of the country severely reprobated the decision in that case, not because it recognized the constitutional right of the majority of the incorporated society to change the religion and retain the property of the society, but because, on the question of the identity of the unincorporated church, it recognized as the church the minority who adhered to the society. The decision was formally challenged by an orthodox ecclesiastical council; it was characterized as “unrighteous;” the court were loudly called upon to revoke it; the successful Unitarian minority-church were summoned to restore their ““plunder;” but the constitutional right of the majority of the apostate society to appropriate its old orthodox property to the uses of apostasy was universally admitted, and remains admitted to this day. Ellis's Half Century U. C. 415, 424.

In 1830, when but one of the judges who decided that case remained, the same questions, in another case, were brought before the court, and again fully and ably argued by other counsel on the Trinitarian side; but the constitutional right was left undisputed as Webster left it. Stebbins v. Jennings, 10 Pick. 172. The next year, the same significant silence was observed on the same side, in Sawyer v. Baldwin, 11 Pick. 492. And in a litigation that lasted from 1833 to 1838 between a Trinitarian minister and a parish over which he had been settled thirty-seven years, *146 and which became Unitarian by the action of a majority, neither the Trinitarian minister, nor the Trinitarian minority of the parish, nor the Trinitarian parishes of the country, nor the bar, nor the court, manifested the least suspicion that the majority of the parish could not legally elect a Unitarian minister “to preach to them in the pulpit which he (the Trinitarian pastor) had long occupied.” Stearns v. F. P. Bedford, 21 Pick. 114, 118, 119, 121.

In 1735, a meeting-house lot was conveyed in trust for the sole use of a society described as “the congregation belonging to the Presbyterian meeting-house in Long Lane,” whose members had purchased the lot, and caused the conveyance to be made in that form. The society continued to be Presbyterian for fifty years, and then became orthodox Congregational, and elected Dr. Belknap their minister; and, in course of time, they became the Unitarian society of Dr. Channing and Dr. Gannett. In 1854, Chief Justice SHAW declared that the reason that the society did not forfeit its right to the property by “becoming Congregational in 1786, or Unitarian afterwards,” was, that every religious society, “by the general law, were at liberty to change their denomination.” Atty.-Gen. v. Fed. St. M., 3 Gray 1, 56, 57. In an article understood to be the work of the same judge, the writer says that it is manifest that under “the constitution of 1780, the fundamental law, not to be changed by the legislature,” the legal voters of the parish have the exclusive right and power of electing their public teachers, and that, in case of an appeal to law, the court “must decide these questions of right according to the express provision of the constitution * * without regard to sect or denomination.” Ellis's Half Century U. C. 429.

**125 When a Unitarian society became Trinitarian, no one imagined that Unitarianism was specially guaranteed against apostasy, or excepted from the general principle of parochial independence. Princeton v. Adams, 10 Cush. 129, 132.

In New Hampshire, at least six Trinitarian societies became Unitarian,--in the towns of Charlestown, Dublin, Peterborough, Portsmouth, Walpole, and Wilton. Lawrence's Hist. N. H. Churches 240, 244, 255, 299, 425; Peabody's Hist. South Parish of Portsmouth; Unitarian Year Book for 1868. The Dublin case grew out of the apostasy of the Dublin society, and in that case, in 1859, this court used the following language: “The history of the denomination shows * * that the original and distinguishing principles of the Congregational denomination allowed differences and diversities of doctrine within the pale of the denomination; that each church had the right to choose and change her articles of faith; * * that ministers and churches, for a long time before 1817, had used this Congregational liberty, and a considerable number of them had departed from the faith of the fathers and become Unitarian. * * There was no new organization of churches and societies; the new opinions were engrafted on the old system.” 38 N. H. 533.

The Unitarian apostasy is one of the most striking series of events *147 in the ecclesiastical history of New England. It has been universally accounted a theological revolution, an alteration of the substance of doctrine, an overthrow of cardinal points of orthodoxy, a material change in fundamental and essential doctrines of religion. If the religion of Channing is, for substance of doctrine, the religion of Calvin and Edwards, the whole country has been and still is laboring under a strange delusion. If everybody has been mistaken on so important a subject, it would be well for some one to set about correcting the mistake.

When this Dover corporation was formed and its house built, very few parishes in America had been organized by Unitarians; they were essentially a denomination of apostate parishes, who, by their apostasy, in substance of doctrine, had lost their ecclesiastical standing and fellowship without losing their corporate property or any of their corporate rights; and the amount of such property was very large. According to the history of this sect, culminating in the decree in the present case, while the law upholds apostasy in carrying property from other religions to Unitarianism, it does not allow apostasy to carry property from Unitarianism to other religions. The theory, that the constitution and the parochial unsectarian independence guaranteed by the constitution can be abolished by the sectarianism of the members of a parish, is a novel and startling one. It did not occur to such a constitutional lawyer as Webster (sorely pressed as he was for arguments against that independence, and losing the memorable Dedham case for want of such arguments), but was left to be invented by the thrifty ingenuity of these plaintiffs, as the peculiar privilege and exclusive protection of Unitarians against loss from parochial apostasy, after their sect had gained all it seemed likely to gain, and before it restored what it had won, by that practice. The constitutional law, settled by the case of King's Chapel, the Dedham case, and a hundred other cases (decided on this very point by the unanimous judgment of all lawyers and judges who considered it, and of all parties interested), invariably held, publicly announced, uniformly acted upon, and undisturbed for eighty years, authorizes parishes of other sects (so called) to become Unitarian; the decree in this case forbids a Unitarian parish (so called) to go over to any other sect. The result is a Unitarian monopoly of parochial apostasy. The plaintiffs are not barred, in law, from setting up this claim, by the doctrine of estoppel: whether they and their sect are morally estopped is a religious question, of which this court has no jurisdiction. A Baptist society, comprising a minority of the town of Wilton, endeavored by suit to obtain a share of the interest of an ancient ministerial town fund which the members of another society wholly appropriated to support the minister of their choice. In the decision delivered by Chief Justice RICHARDSON, the court expressed these views: “If the town apply the fund to the hiring of a minister whom a majority approve, can we say that the fund is misapplied? * * It is the misfortune of these plaintiffs that they are a minority in the town of Wilton. But should the time ever arrive when the members of this *148 society shall constitute a majority of the town of Wilton, this fund will be unquestionably at their disposal, and they may apply it in such manner as they may think best.” Baptist Society v. Wilton, 2 N. H. 508, 512. About the time of that decision, a Trinitarian minority seceded from the dominant society without contesting its right to become Unitarian. Lawrence's History N. H. Churches 246. In Candia v. French, 8 N. H. 133, Judge PARKER said that when towns were parishes “it would probably not have been contended that towns had not power to distribute real estate, or funds held for religious purposes, among the religious societies within their limits.” It is settled by these two cases that town parishes were not sectarian in their legal character; their parochial powers were not limited by sectarian conditions.

**126 Many corporate changes of ecclesiastical government and doctrine are collected in Lawrence's Hist. N. H. Churches. Societies of orthodox Congregationalists and societies of Presbyterians, who were held, in Muzzy v. Wilkins, to be of different denominations, have frequently passed from one to the other. Alterations of church covenants have been very numerous, and modifications of doctrinal preaching very common. New doctrines have been introduced in regard to slavery and intoxicating liquor. The systems of belief, as intended to be set forth in creeds and confessions, and as formerly understood, have been generally, if not universally, qualified by liberal construction. The halfway covenant, which expelled Jonathan Edwards from his parish, has been adopted and abolished. Lawrence's Hist. N. H. Churches; 3 Palfrey's Hist. N. E. 85-88. Calvinism and Arminianism have often supplanted each other. The latter has sometimes prevailed extensively. “Into this scheme of belief a vast number of the churches sank after the revolutionary war, which had so blighting an effect upon vital religion throughout the country. Many went over from this to Unitarianism. * * The ministers called Arminian opposed the revivals of that day. The distinctive doctrines of Calvinism dropped out of their preaching.” Lawrence's Hist. 309.

In Newmarket “the ‘tables were turned,’ and the Methodists became the “standing order.' The town employed their preachers, voted them the use of their parsonage, the meeting-house, and more or less salary year by year. And they lived in the Congregational parsonage, occupied their meeting-house, and used their church service for some twenty years.” Id. 137.

In Langdon, “April 20, 1803, the town voted to ‘raise $100 for preaching, and that one half be laid out for the Congregational order, and the other half for the Universalist order.’ In 1803, October 25, ‘voted to hire Mr. Kneeland to preach in this town two Sundays in a month for one year, and give him five dollars a day.’ * * August 27, * * 1804, at a regular town-meeting, ‘voted to settle Mr. Kneeland in the ministry.’ * * He had changed his sentiments, and assumed the title of a ‘practical preacher.’ * * The evangelical portion of the church was in the minority. * * He was settled Oct. 30, 1805. The town voted in 1806 to raise $300. * * *149 The town voted in 1807 to raise $280 for preaching, and each denomination to have their equal share. 1810, Mr. Kneeland being chosen representative to the General Court, the town voted ‘not to raise money to hire preaching this year. Voted to raise $40 to support the convention (Universalist) to be held in September next, and that it be raised in the same way that Mr. Kneeland's tax is raised.’ At a town-meeting in 1811, “voted to dismiss Mr. Kneeland from the public ministry in this town the last week in September, agreeably to his request and that of the First Universalist Society in Charlestown, Mass.” Id. 499, 450.

**127 Before 1819, towns, in many instances, divided ministerial funds among different denominations, and, before and after 1819, towns often divided the use of their meeting-houses in the same manner. This was an exercise of their parochial independence. Candia v. French, 8 N. H. 133. And since 1819, societies have been known to exhibit a like liberal and tolerant spirit. The Second Parish in Exeter, originally Trinitarian, became Unitarian, and afterwards Trinitarian again. And during its Unitarian period, Chief Justice SMITH, as an active and leading member, practically and unequivocally manifested his opinion that the corporate apostasy was not unlawful; and if there could have been any question on that point in his day, his authority would have been conclusive. In Muzzy v. Wilkins, he took it for granted that a parish may elect a minister of any denomination. P. 73.

In 1812, the Panoplist lamented the want of ecclesiastical tribunals for these reasons: in case of any moral delinquency “there is no tribunal in our churches competent to try an offending minister without his consent. * * But the defect is still more apparent in the case of heresy. Here a minister is absolutely invulnerable.” In 1815, a committee of the general association of Massachusetts deplored “the present state of things,” because “a church as well as an individual member may apostatize from the common faith, and fall into disorders wholly incompatible with the Christian character. * * Churches * * may go to the greatest length of apostasy without any inspection.” Dublin case, 38 N. H. 528, 529; Buck's Ecc. Law 238. If the evils thus complained of had been contrary to law, the divines who made these complaints would not have deplored the want of ecclesiastical tribunals with powers of inspection and correction, for they would have found abundant remedies in courts of law.

Great numbers of dissatisfied persons, who, since 1784, have seceded from parishes or remained in them without appealing to the law, under circumstances calculated to produce litigation, are witnesses of the universal understanding that it is the legal right of the majority to introduce innovations. Somebody would have contested that right if it had been considered a doubtful one. Especially, in the wide-spread Unitarian apostasy, would the orthodox denomination, who lost so much, have made some attempt, by legal proceedings, to prevent the Unitarian parochial majorities from diverting corporate property to uses which the orthodox regarded as sacrilegious, or at least have expressed *150 a doubt as to the legality of the desecration, if any such doubt had been entertained. And now, when the Episcopalian, Presbyterian, and puritan churches, and the legal intellect of the country for eighty years past, have been unable, though often specially requested, to detect the unlawfulness of those apostate transactions, it would require no little audacity for the sect who gained so much to claim that they have discovered the illegality for which the losing parties searched in vain, and to propose not to make restitution of King's Chapel, and the Presbyterian property of Channing's church, and the ancient puritan property and corporations of nearly all the leading Unitarian parishes in New England. It would be a bold position for a legal or a religious body to take. And it is due to the Unitarian denomination to say, that the evidence in this case does not show that they have abandoned the constitutional ground taken by the parish of King's Chapel in 1787.

**128 If the meaning of the general grant of elective power to parishes is to be ascertained from contemporaneous practical construction,--Concord R. R. v. Greely, 17 N. H. 47, 62, 63; Co. v. Fernald, 47 N. H. 444, 458, 459, 460,-- the parochial history of New Hampshire and Massachusetts is decisive. But there is no occasion to resort to that method of interpretation, or to judicial authorities: the constitutional parochial power “cannot be questioned;” it “is too explicit to admit of cavilling or to require explanation, as every constitutional provision for the security of civil or religious liberty ought to be.” Baker v. Fales, 16 Mass. 488, 508.

“The several towns, parishes, bodies corporate, or religious societies shall at all times have the exclusive right of electing their own public teacher.” The ninth article of Part II of the constitution provides that “every town, parish, or place entitled to town privileges, having one hundred and fifty ratable male polls of twenty-one years of age and upward, may elect one representative.” The corporate power of electing a minister is declared more fully and emphatically than the corporate power of electing a representative. The constitutional power of a town to elect a representative, is the power of a majority to elect a representative of their political faith; and the constitutional power of a parish to elect a minister, is the power of the majority to elect a minister of their religious faith. The right of a town to elect a representative of one political faith this year, is its right to elect a representative of an opposite political faith next year; and the right of a parish to elect a minister of one religious faith this year, is its right to elect a minister of an opposite religious faith next year. The former is the constitutional power of corporate political apostasy; the latter is the constitutional power of corporate religious apostasy. One is as indisputable as the other; they are mere examples of civil and religious freedom, in which the right to abandon an opinion is as sacred as the right to adhere to it. So it was when towns were parishes; and the constitutional nature of parochial power has never been altered. If the people think their liberties perniciously extensive, it will be for them to apply remedies by constitutional amendments;-- *151 whether the constitution ought to be so amended as to enable this court, on theological grounds, to set aside and nullify parochial ministerial elections, is a political and not a judicial question. But until parochial independence is struck out of the constitution, the court may as well dictate the character of political speeches to be delivered in the town-house of a town under a vote of the town, as to dictate the character of sermons to be preached in the meeting-house of a parish under a vote of the parish. To require parishes to keep fixed standards of theology as towns keep weights and measures, and compel ministers in their sermons and exchanges, and parishes in their ministerial elections and in their weekly control of their own pulpits, to conform to those standards, would be a judicial usurpation of ecclesiastical jurisdiction, an utter subversion of the genius of our government, and a plain violation of the letter and spirit of the constitution.

**129 The power of apostasy, established by the constitution as a paramount article of the charter of every parish, whether incorporated by special or general law, cannot be repealed by any legislature or parish, nor nullified by common law, or statute law, or by-law, or prescription, or parochial name. Nothing less than an amendment of the constitution can, in the slightest degree, affect it. And for that reason the only decisions adverse to the parochial power, that could be of any importance here, would be those made under constitutional provisions like ours. And no such decisions have been cited in this case.

But it has been held in other states that the same parochial power exists, in the absence of express constitutional stipulations, by virtue of the general principles of religious freedom and democratic government. Keyser v. Stanisfer, 6 Ohio 363; Wiswell v. F. C. Church, 14 Ohio St. 31, 44, 45; Trustees v. Seaford, 1 Dev. Eq. 453; Whitney v. Society, 5 Conn. 405. Smith v. Nelson, 18 Vt. 511, 547, a very carefully considered case, was decided on that ground. The Chief Justice, in delivering the opinion, said,-- “However strange it may sound to the ears of an Englishman, as was observed by the Lord Chancellor in the case of Leslie v. Birnie, 2 Russ. 114, that a minister is to be elected by ‘the elders, members, and seat-holders,’ yet I apprehend that the very spirit of our institutions does explicitly recognize this right of electing or employing a minister as vested in the corporate body or the majority of the individual members. * * Baker v. Fales, 16 Mass. 488; Baptist Church v. Witherell, 3 Paige 296. In this latter case, the learned Chancellor very ably and fully expresses my views of the * * rights of a majority of the members.”

In Baptist Church v. Witherell, Chancellor WALWORTH held that the defendants, although excluded from the communion and fellowship of the Baptist church on account of anti-Sabbatarianism or some other heresy, were still legal voters as members of the society, and might be elected trustees and have the management of the temporal concerns of the society, and that an ecclesiastical judicatory had no right to remove a minister without the consent of a majority of the members of the society. After referring to the decision of Lord ELDON, in Atty.-Gen. *152 v. Pearson, 3 Meriv. 264, Chancellor WALWORTH said,-- “I presume the original founders of the Baptist church in Hartford, in conformity with the generally received opinion among Calvinistic Baptists, believed the holy Sabbath was of divine institution, and that they intended such doctrines should be taught in that church and congregation. Upon that supposition, if Elder Witherell is permitted by the trustees to inculcate a different doctrine in his public discourses in this church, I presume Lord ELDON would consider it such a departure from the original establishment as to justify his interference. * * I confess I have always entertained serious doubts whether any civil tribunal in this 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 or 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. And upon the same principle, the * * equity jurisdiction in a neighboring state might find itself constrained to order some of the parishes within its limits to employ religious teachers who should inculcate the doctrine of witchcraft, as it was taught in their churches at the time of their first organization.” Lord ELDON'S principle, with which Chancellor WALWORTH was dissatisfied, required an English trust-deed to be so interpreted as to carry out the presumed intent of the grantor not to promote a religion that was unlawful when the deed was executed, and had no reference to a constitutional provision of theological independence, in the charter of a parish in a country where all religions are equally lawful.

**130 In New York, religious societies seem generally to be incorporated under sec. 3, ch. 60, Laws of 1813, which is much less explicit on this subject than our constitution. Under that statute, certain officers called trustees, elected by the society, have charge of the property belonging thereto, and transact all affairs relative to the temporalities thereof, and the corporate property is held in trust for the use of the society. Tyler's Ecc. Law 85; Wheaton v. Gates, 18 N. Y. 395. In Robertson v. Bullions, 11 N. Y. 243, 263, 264, it was held that the majority in a particular congregation, without regard to their religious sentiments, can change entirely their form of worship. And in Petty v. Tooker, 29 Barb. 256, 264, 272, 273--21 N. Y. 267-- it was decided that corporations formed under said section 3 have no denominational character, and that none can be engrafted upon them; that the legal character of the corporation is not affected by the doctrines, rites, or modes of government of a church formed by the corporators; that the corporation and its officers do not lose any rights or the use of the corporate property by any change of doctrine or church government; and that *153 “the act for the incorporation of religious societies was obviously framed with a view to and in accordance with that just and sound principle which lies at the basis of all our civic institutions, viz., that in every organized society the controlling power should be in the hands of the majority,” who may “change its religious character and modes of worship against the will of its original founders and chief contributors.” This is the settled doctrine in New York. Burrel v. A. R. Church, 44 Barb. 282; Gram v. Society, 36 N. Y. 161. And it is so settled there, not because the New York statute differs from our constitution, but because it is like our constitution in not making parishes sectarian in their legal character.

“This corporation is essentially and exclusively lay in its constitution; * * it has no jurisdiction of spiritual things, being incorporated exclusively for purposes of civil administration. It is not even mixed; for although three of the trustees are clerks, it is not so much the character of the corporators as the nature of the objects to be accomplished which determines the character of the corporation. * * The truth is, there must be a discretionary power somewhere to vary the application of the fund according to the ever varying exigencies of times and circumstances. * * The congregation was incorporated, not in its ecclesiastical but in its lay aspect. That it should continue to hold the tenets or be subject to the discipline of the Church of Rome was no condition of the charter, express or implied. A congregation of any other sect could have had a charter as readily as this. Stipulations for forms of doctrine or points of faith were matters to which the legislature was not a party, and with which it had nothing to do. This congregation was incorporated, like every other, to enable it to manage its temporal concerns to the best advantage. The establishing of a particular set of religious opinions by law is contrary to the genius not only of our government, but of the age in which we live.” Case of St. Mary's Church, 7 S. & R. 536, 545, 548, 549.

**131 There is a strong intrinsic improbability that the founders of our institutions overlooked the practical necessity of allowing for some variations in all ecclesiastical affairs. The Catholic church, more stable in doctrine than the Protestant bodies that have withdrawn from it or from others in that line of secession, and exhibiting a constancy nearly equal to that of its Jewish predecessor, or of Mohammedanism or other steadfast religions, now teaches, in its schools, astronomical principles which it formerly condemned as fatal theological heresies, to be extirpated by fire. Draper's Intellectual Development of Europe 443, 514, 520. “What is theologically true in religion, it is agreed on all hands that the court are not competent to decide; nor have they power to determine what is really and intrinsically substantial and essential in matters of doctrine.” The Dublin case, 38 N. H. 509. But in the cases of Bruno and Galileo, and throughout Christendom, astronomical doctrines now admitted to be erroneous were held by the church to be essential. And the doctrines of the sovereignty of the church over the state, and of the unlawfulness of receiving compensation *154 for the use of money loaned, once maintained, are now practically abandoned by the same church. “A large proportion, perhaps the majority of the members of the Lutheran church, believe no more in the doctrines of Luther than in the doctrines of Confucius. * * I do not believe that any denomination of Christians exists, which, for so long a period as the Baptists, have maintained so invariably the truth of their early confessions. * * It is difficult at the present day to conceive to what extent the doctrine of the limited atonement, and the views of election which accompanied it, were carried” among the Baptists. “Within the last fifty years a change has gradually taken place in the views of a large portion of our brethren. At the commencement of that period, Gill's Divinity was a sort of standard, and Baptists imbibing his opinions were what is called almost hyper-Calvinistic. A change commenced upon the publication of the writings of Andrew Fuller, * * which, in the Northern and Eastern states, has become almost universal.” Wayland's Baptists 15, 18, 19. “In a late edition of Neal's History of the Puritans, it is stated that in almost all the Presbyterian congregations there has taken place a change of opinions, and that they have swerved from the doctrines of their forefathers, and have now become advocates of very different tenets.” Attorney-Gen. v. Pearson, 7 Sim. 290. Portions of the Common Prayer of the English Church are not now generally accepted in the original sense by the learned laity or clergy of England or America. 4 Hume's Hist. Eng. 503; 1 Works of John Adams 40; Stanley's Life and Correspondence of Dr. Arnold of Rugby, Letter No. CCXI. The constructions lately introduced by the supreme ecclesiastical tribunal of that church in England are sufficiently liberal to admit some who are substantially Catholics, some who are really Unitarians, and an infinite variety of others. Universalism changes with the rest. Greeley's Recollections 74. Among some sects the old formularies remain, with an understanding that each individual enjoys a large liberty in putting his own interpretation upon them. Within the strictest nominal uniformity there is immense diversity. The most rigid standards of orthodoxy have an undefined and uncertain degree of flexibility. Explicit creeds, upheld by acts of parliament, conform themselves to the apostasies of the people.

**132 On the subject of predestination there has been a general change of opinion among Calvinists. “Whosoever shall tell us that infants shall be quickened in Christ, who die without partaking in his sacrament, does contradict the apostle's teaching, and condemn the whole church. * * And he that is not quickened in Christ must remain in that condemnation of which the apostle speaks,--‘by the offence of one, judgment came upon all men to condemnation.’ To which condemnation infants are born liable, as all the church believes. St. Augustine's Epist. 166,” as quoted in 1 Lecky's Hist. European Morals 220.

“For neither does Paul teach that the ruin of the wicked was foreseen by God, but that it was decreed of his counsel and will in the manner that Solomon teaches, not only that the destruction of the *155 wicked was foreknown, but that the wicked were created designedly that they should perish.” Calvin “(in Rom. cap. 9, verse 19). As to infants, the language of Beza, one of the most celebrated followers of Calvin, is this: ‘The same happens in baptism, which many thousand infants receive, who, nevertheless, are never regenerated, but perish eternally.’ (1613. Acta Colloquii Montisbell. Quoted in 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, sec. 17.)” Miller v. Gable, 2 Denio 529.

“I ask again, How has it come to pass that the fall of Adam has involved so many nations with their infant children in eternal death without remedy, but because such was the will of God?” Calvin's Inst., Lib. iii, c. 23, sec. 7. “And so even infants, as they bring their damnation with them from their mother's womb.” Id. Lib. iv, c. 15, sec. 10. And again, indignant at being supposed to think differently, he says,--“As if I denied that the whole race of Adam was by nature under a curse, so that even infants before being born to light are liable to eternal death.” App. Lib. de Vera Eccles. Reform. Ratione. Replying to Castalio, and controverting his doctrine that all laws, human and divine, condemn a man after and because of transgressions, Calvin explains,-- “Put forth now your virulence against God, who precipitates into eternal death harmless infants torn from their mothers' breasts.” And arguing that Adam's sin is sufficient for the damnation of Adam's posterity, he asks, in regard to infants snatched out of this life before they were able, on account of their age, to give any proof of wickedness,--“Why will Christ, at the last day, separate some of them to his left hand, from others standing at his right?”

**133 Dr. Twiss, prolocutor of the Westminster Assembly, says,--“The condemnation of many infants to eternal death is the consequence of Adam's transgression solely.” Twissi Vindiciæ, Lib. i, p. 46. “His (Adam's) sin is made ours by the imputation of God; so that it has exposed innumerable infants to divine wrath, who were guilty of this sin and of no other.” Id. Lib. iii, p. 21.

“III. By the decree of God, for the manifestation of his glory, some men and angels are predestinated unto everlasting life, and others foreordained to everlasting death. IV. These angels and men, thus predestinated and foreordained, are particularly and unchangeably designed.” Westminster Confession, ch. iii. “III. Elect infants, dying in infancy, are regenerated and saved by Christ through the Spirit, who worketh when and where and how he pleaseth. So also are all other elect persons, who are incapable of being outwardly called by the ministry of the word. IV. Others not elected, although they may be called by the ministry of the word, and may have some common operations of the Spirit, yet they never truly come to Christ, and therefore cannot be saved.” Id. ch. 10.

“The Calvinists carry the matter much farther [than the schoolmen], *156 asserting that original sin deserves the punishment of damnation; and therefore they conclude that such infants as die unbaptized, and are not of the number of the elect, are, for the transgression of our first parents, condemned to the eternal torments of hell-fire. It must be confessed that the doctrine of the Church of England makes too near approaches to this opinion, when it tells us that ‘in every person born into the world, original sin deserves God's wrath and damnation.’ For the words seem to be too strong and express to admit of those mollifying constructions which some by way of apology have thought proper to put upon them.” Stackhouse's Body of Divinity 292, 293.

Jonathan Edwards's work on Original Sin was published in 1758, the author having brought it to the press the year before his death; and among the subscribers for it were fifty-nine clergymen of New Hampshire, Massachusetts, and Connecticut. In that book, under the title “The Death of Infants proves Original Sin,” the author, refuting the argument of Dr. Taylor that “The Lord of all being can never want time and place and power to compensate abundantly any sufferings infants now undergo,” says,--“There are no bounds to such a license in evading evidences from fact. * * This gentleman might as well go further still, and say that God may cast guiltless persons into hell-fire, to remain there in the most unutterable torments for ages of ages (which bear no greater proportion to eternity than a quarter of an hour), and if he does so, it is no evidence of God's displeasure; because he can never want time, place, and power abundantly to compensate their sufferings afterwards. * * We may well argue from these things that infants are not looked upon by God as sinless, but that they are by nature children of wrath. * * There are some particular cases of the death of infants, which the Scripture sets before us, that are attended with circumstances in a peculiar manner giving evidences of the sinfulness of such, and their just exposedness to divine wrath; as, particularly, the destroying the infants in Sodom and the neighboring cities. * * We see what great care God took that Lot should not be involved in that destruction. * * The whole affair, both the destruction and the rescue of them that escaped, was miraculous; and God could as easily have delivered the infants which were in those cities. * * To say here that God could make it up to those infants in another world, must be an insufficient reply. For so he could as easily have made it up to Lot. * * Since God declared that if there had been found but ten righteous in Sodom he would have spared the whole city for their sake, may we not well suppose, if infants are perfectly innocent, that he would have spared the old world, in which there were without doubt many hundred thousand infants? * * especially when such vast care was taken to save Noah and his family (some of whom, one at least, seem to have been none of the best). * * Who ever perished, being innocent? or where were the righteous cut off? * * And when God executed vengeance on the ancient inhabitants of Canaan, not only did he not spare their cities and families for the sake of the infants, * * but often with *157 particular care repeated his express commands that their infants should not be spared, but should be utterly destroyed without any pity. * * And when God executed his wrath on the Egyptians by slaying their first-born, * * a miracle was wro't to kill them. Here, not to stay to be particular concerning * * the destruction of the infants of the Midianites * * all the infants of the Amalekites * * and what is said concerning Edom. Psal. cxxxvii, 4. Happy shall he be that shall take thy little ones, and dash them against the stones. I proceed to * * the destruction of Jerusalem, represented in Ezek. ix, where * * the infants were not marked, nor a word said of sparing them. On the contrary, the infants were expressly mentioned as those that should be utterly destroyed without pity. * * And if any should suspect that such instances as these were peculiar to a more severe dispensation under the Old Testament, let us consider a remarkable instance in the days of the glorious gospel and grace of God, even the last destruction of Jerusalem * * At that time particular care was taken to distinguish and deliver God's people, as was foretold. Dan. xii, 1. And we have in the New Testament a particular account of the care Christ took for the preservation of his followers. * * * Yet no care was taken to preserve the infants of the city in general; but, according to the predictions, of that event, they were involved with others in that great destruction. * * These very destructions of that city and land are spoken of, in those places forementioned, as clear evidences of God's wrath to all nations which shall behold them. And if so, they were evidences of God's wrath towards infants, who equally with the rest were the subjects of the destruction.” Pp. 132-138. In another place the author shows that the passage in Eph. xi, 3,--“and were by nature children of wrath,”--refers to natural birth, and is to be understood in its most literal, and not in any metaphorical, sense. Pp. 230-236.

**134 Dr. Bellamy said,--“Those who die in infancy may as justly be held under the law in the next world as those that live may be in this.” The edition of his collected works containing this sentiment, published in 1811, was accompanied by a strong recommendation, signed by six distinguished doctors of divinity, three professors of Andover Theological Seminary, and two other clergymen, testifying, among other things, that the writings of Dr. Bellamy have been held in high estimation by the churches in New England. In 1856, Dr. Baird stated one of the doctrines of the puritans thus: “Some may be regenerated in infancy, which it is lawful for us to hope is the case with all who die before they are old enough to profit by the external means of grace.” Baird's Religion in Am. 547. He was careful not to say it is lawful for us to believe in infantile irresponsibility; and the early Calvinistic authorities do not recognize the distinction between the lawfulness of hope and the lawfulness of faith on this point.

In a discussion between Dr. Lyman Beecher and a writer in The Christian Examiner, in 1827 and 1828,--1 Spirit of the Pilgrims 42, 78, 149; 4 Christian Examiner 431; 5 id. 229, 316, 506; Ellis's Half- *158 Century of the Un. Controversy 82-84,--Calvinistic authorities enough were collected to settle this disagreeable historical subject beyond any further question. Those authorities merely made a logical and unavoidable application of general and fundamental principles that did not except infants from their operation. The doctrines of predestination and its appurtenant dogmas were a consistent system. Calvinism was logical. When the Westminster Confession asserted that elect infants and other elect persons are saved, and that others not elected cannot be saved, it gave no more intimation that all infants are elect than that all adults are elect; it left the fate of non-elect infants in no more doubt than the fate of non-elect adults. When the children in our common schools were taught, in the first illustrated reading lesson of the New England Primer, that “in Adam's fall we sinned all,” they were not taught, either in that lesson or any other, nor was anybody anywhere taught by Calvinism, that infants are exempt from the punishment of that original sin of Adam. Endless suffering is the punishment of guilt, not of innocence. Original guilt, for which the whole human race is punished, is the guilt of Adam, imputed to and inherited by his posterity. In that system, the personal innocence of an infant is as immaterial as the personal innocence of an adult pagan, who never heard of and never was conscious of his liability for, or his duty to repent of, a sin committed many thousand years before he was born.

The fact of doctrinal change is generally if not universally conceded. One of the complaints made against Unitarians has been, that they falsely accused modern Calvinists of nominally professing an unqualified allegiance to old Calvinistic formulas. Dr. Ellis says,--“The first point on which Unitarian sentiment is found to be in positive and entire antagonism with the standards of orthodoxy is that which concerns the nature and the state of men as responsible creatures of God. * * * Unitarians do deny positively, and with all the earnestness of a sincere and solemn conviction, that the original Calvinistic doctrine (or any subsequent modification of that doctrine, which has the authority of an accredited formula with the party) concerning the nature and the state of man, is either a Scriptural or a Christian doctrine. * * * The Unitarians understood and avowed that they were assailing, not the undefined and modified semblance now called orthodoxy, but Calvinism, which had expressed itself in positive formulas, and to which the orthodox party professed an unqualified and unequivocal allegiance. Since the controversy opened, orthodoxy, being restless under each and all of the dogmatic statements in the creed of the three doctrines to which it committed itself, has exhibited its uneasiness in continual efforts to modify and qualify its formulas. Some of its disciples, feeling, precisely as our first Unitarians felt, a shrinking reluctance against the plain literal meaning of the creed, and knowing that they could not accept it as ‘the fathers' held it, and yet, fearing to commit themselves to our theology, have tried in various ways, with an amazing exercise of ingenuity, to soften and dilute the creed. Especially, on this one doctrine of the complete original depravity of *159 human nature, have there been endless variations and shadings of opinion. * * * At the opening of the controversy, it was the real Calvinistic doctrine which was assailed,--the doctrine of the Westminster Assembly's Catechism, which our fathers had accepted,--the doctrine of the New England Confession of Faith, which our churches sent forth in 1680. Fifty years ago the orthodox began to complain, and they have ever since complained, that Unitarians misrepresented them in charging upon them ‘in this neighborhood’ a shape of orthodoxy which had been held by Calvinists of a former age, and which survived only in other parts of this country. And here we must be pardoned for giving frank expression to a disagreeable truth. There seems to Unitarians to be something evasive and very unworthy in the pleas with which the orthodox have met our exposures of what we regard as the errors of their system. They censure us and deny us the Christian name because we reject their creed; and when, with the best faculties we possess for analyzing that creed, we attempt to state the reasons why we reject it, they proceed to tell us that they themselves do not hold the creed in what is to us its plain signification. We have endeavored to state fairly its essential doctrines, and the honest, unexaggerated inferences which logically flow from them. But no statement which we can make of the system is ever allowed by the orthodox to be fair: some private qualifications, which they attach to it in their own minds, and of which we have no means of knowing or judging, justify them, as they think, in charging us with misrepresentation. * * * Unitarianism opposed and still opposes the Calvinistic doctrine of the entailed corruption of human nature in all our race as the punishment of Adam's guilt. Nor did the Unitarians err in addressing their arguments against that authoritative statement of Calvinism which is given in the orthodox creeds. The orthodox wished to have the praise, they claimed the honorable and grateful repute, of ‘adhering to the faith of the fathers of New England.’ They claimed also the exclusive inheritance of the old piety, on the score of holding its doctrinal standards. Was not the assertion repeated by them even to weariness,--too often, certainly, to be regarded as a mere empty boast,--‘We hold the doctrines of the reformation, the doctrines of the fathers of New England’? Now, the Calvinistic doctrines were held heartily and firmly, and without subterfuges of metaphysics, by the fathers of New England. Their professed successors cannot enjoy at the same time the honor of holding their opinions, and the privilege of changing them.

**135 Here, then, is the doctrine which Unitarians understood they were opposing. We quote from the sixth chapter of the Confession of Faith of the New England churches:

The shorter catechism of the assembly, which also had been formally recognized by our churches, and was taught to all our children, advances the same doctrine on the same grounds, and tells us that ‘all mankind, by the fall [of Adam], lost communion with God, are under his wrath and curse, and so made liable to all the miseries of this life, to death itself, and to the pains of hell forever.’ We purposely abstain from adding to these authoritative statements of doctrine any quotations from approved Calvinistic writers, which follow it out into its revolting and blasphemous details. We think that the hideous and yet perfectly consistent speculations and representations made by Edwards, to set forth the horrors of hell-torments, the anguish of the reprobate who suffer them, and the exquisite happiness which the ‘righteous' derive from contemplating them, have done their service in controversy. It only aggravates our opponents if we renew those fearful delineations. We are content to follow the doctrine as nakedly presented in the formula. This is the doctrine which, by profession one hundred years ago, and in sober sincerity two hundred years ago, underlaid the theology--the Calvinistic, the orthodox theology--of New England. It was made the starting-point of the Christian system. It decided the terms of relation and duty, of accountability, judgment, and doom, in which men stood to God. It was made to establish the necessity and the method of redemption by an infinite sacrifice to God, designed to serve as a substitute with God for the sufferings of men. * * The moment a decided opposition was raised by Unitarians to this Calvinistic doctrine, those who came forward to vindicate it began to evade its full force. They shrank from facing it; they shrink from it now; they try to soften it. * * The doctrine still stands, however, unchanged in word, unrelaxed in authority, in the formulas of orthodox churches. Still is the repute of holding the faith of the fathers claimed by those who are called orthodox. * * And this is the doctrine which Unitarianism rejected, positively, and without qualification, concession, or tolerance.” Ellis's Half-Century of the Un. Controversy 54, 55, 56, 60, 61, 62, 63, 65, 66.

**136 The orthodox reply to Dr. Ellis, in the Puritan Recorder, by a writer understood to be of the highest authority, is as follows: “They (the Unitarians) well knew, and we know, that the current orthodoxy of New England, in the year 1815, when the Unitarian controversy properly opened, was not precisely that of old Calvinistic formulas. To these formulas the orthodox of that day did not ‘profess an unqualified *161 allegiance.’ They were willing to accept them, and they did, ‘for substance of doctrine,’ as the phrase was; but this implies that they were not accepted ad literam. Nor were the modifications of statement, which they wished to make, unknown to the public or to Unitarians. They had long been exhibited in sermons and in books. They were paraded with some exaggerations in Ely's Contract, as early as 1811, and of this work an elaborate review had been published in Norton's Repository. All this took place some years before the opening of the Unitarian controversy. And yet, at the commencement of the controversy, the attempt was made, and is still persisted in, to hold the orthodox to the letter of the old formulas; and, what is worse, to all the ‘logical deductions,’ amounting in some instances to the grossest distortions, which their adversaries have been pleased to draw out from them. It was vain for Doctors Woods and Worcester and Beecher to say ‘we do not accept your logical deductions, or the old formulas themselves, without explanation.’ It was vain for them to state, as they often did, and had a perfect right to do (and their opponents should have believed them and met them accordingly), what their explanations and modifications were. They were brought back and reined up to the ‘old formulas,’ with the appended ‘logical deductions,’ and must fight for these, or abandon the contest.”

To this Dr. Ellis replies,--“There was one privilege demanded by the orthodox, which the Unitarians had no idea of granting them, namely, the privilege of professing to be Calvinists without believing Calvinism. Still less would Unitarians permit any ingenious trickery, under the phrase of ‘substance of doctrine,’ to metamorphose Calvinism into something wholly different from Calvinism. * * As my critic says, ‘Unitarians well knew that the current orthodoxy of New England, in the year 1815, when the Unitarian controversy properly opened, was not precisely that of the old Calvinistic formulas.’ Why, then, did it pretend to be substantially what it was not precisely? Why did it insist, in all sorts of persistent phrases, that it held the faith of the reformers and the New England fathers, and of their catechism and their confession? ‘The modifications of statement which the orthodox wished to make’ were known to the Unitarians. These modifications would either affect the substance of Calvinism, or they would not. If they did affect its substance, then Unitarians denied the orthodox the right to make these modifications and still claim to be Calvinists. If, on the contrary, the modifications did not reach to the substance of Calvinism, then the Unitarians did no wrong in holding the orthodox to the Calvinistic formulas. It was fair that they should “fight for those, or abandon the contest.” Ellis's Half-Century 450, 451.

**137 The Calvinistic doctrine of predestination, whatever it originally was in general principle, and however it was applied to infants or adults, has been rejected or essentially modified in Calvinistic churches since the time of Calvin. 1 Lecky's Hist. Rationalism, ch. iv, part 1; 10 Works of John Adams 67. It has been greatly changed since the *162 organization of the old puritan parishes of New Hampshire. Not one of them would now endure the doctrine of its founders. The preaching that first mustered them, would now disband them. Calvin and Edwards are the two great Calvinists of history;-- their religion was Calvinism. The New England Calvinism of to-day is a very different religion. There are many parishes in this state that once held the faith of Calvin and Edwards: let them be decreed to return to it, and they would be extinguished, or the decree would be reversed. The length of the process of doctrinal elimination or transformation is immaterial. It was going on in 1783, as it is now; and it was a striking illustration of the necessity of parochial liberty brought to the knowledge of the authors of the constitution by study, tradition, and observation. They did not intend, in establishing parochial independence, to authorize the court to disperse the old Calvinistic parishes by requiring them to adhere to their original doctrine in regard to infants or adults.

The Westminster Confession has been accepted by orthodox Congregationalists and Presbyterians for substance of doctrine, but its meaning has undergone great mutations. The Westminster Shorter Catechism has been used in those denominations and in our common schools, and it constituted about one half of the contents of a common edition of the New England Primer. But the doctrine of election as therein set forth,--“God, having out of his mere good pleasure from all eternity elected some to everlasting life,”--is not now held by any denomination in this state, in the sense, and with the comprehensive corollaries, attached to that language by the Westminster Assembly, and by the early puritan and Presbyterian churches of New England. Adherence to the letter of ancient formulas has not been easy; adherence to their original signification has been impossible. An ancient creed, retained “for substance of doctrine,” is an open profession of looseness and progress that leaves room for an indefinite latitude of interpretation, by which, for instance, non-elect infants at one period lost, at another period are saved. Nothing that the human mind is capable of understanding can be more material, or more a “substance of doctrine,” than the Calvinistic difference between the eternal ineffable felicity of the elect, and the eternal excruciating agony of the non-elect. The difference between the old doctrine of putting a person to death, by the temporary torture of fire, for witchcraft, Unitarianism, or other heresy, and the new doctrine of allowing him to live unmolested, is something material and a matter of substance. And the difference between the Calvinistic doctrine of putting a person, infant or adult, to the eternal torture, so terrifically represented and so much dwelt upon in times past, and the anti-Calvinistic doctrine of many Calvinists of the present day,--is this something immaterial and of no consequence? On this subject, of transcendent interest and importance, involving the endless doom of millions of beings irresponsible and innocent, according to human tests, by reason of immaturity and want of development, the Calvinistic creed, “for substance of doctrine,” is to-day the opposite of what it once was. Whether this apostasy is a *163 progress toward truth, or a progress toward error, it is a constitutional right. And if the change should extend to the fate of other millions, partially or wholly irresponsible and innocent, according to human tests, by reason of the immature, undeveloped, and unenlightened hereditary state of heathenism, the case would be provided for by parochial independence.

**138 “The remarkable and often quoted passage from John Robinson's discourse, preached to the Plymouth colonists on their embarkation for the New World, may be supposed to set forth what was then the leading principle of the denomination, and shows that they did not then regard their religious opinions as fixed and unchangeable.” The Dublin case, 38 N. H. 517; Belknap's Hist. N. H., ch. 3. In 1670, when New Hampshire was under the jurisdiction of Massachusetts, a committee appointed by the house of deputies in Massachusetts to inquire into prevailing evils, reported, among other things, a “declension from the primitive foundation work; innovation in doctrine and worship, opinion and practice.” “Many of the Congregational ministers and churches, under the names of moderate Calvinists and Arminians, had, before the middle of the eighteenth century, lapsed from the strictness of the ancient faith, and held opinions diverging more or less widely from the standard of orthodoxy in earlier times.” The Dublin case, 38 N. H. 526. In 1815, the Panoplist recited the familiar fact that generation after generation had been relaxing the ancient strictness, and admitting innovations in a general and growing departure from the first principles of the fathers of New England. Id. 529. In regard to Genesis, evil spirits, special providences, the resurrection of the fleshly body, the localities and methods of future reward and punishment, and all Scriptural points touching science, the deviation has been marked. There is much historical evidence going to show that within the best preserved sectarian lines, since the revolt of Luther, the general average tendency has been to rely more and more on what is called reason, and less and less on what is called authority; and that the result has been a partial and increasing merger of what is called a supernatural in what is called a natural type of doctrine. But, if the tendency has been in the opposite direction, it has the same bearing upon this case. It is the fact of general motion, and not the direction of it, that is pertinent to the present inquiry; and no candid and diligent student of ecclesiastical and doctrinal history will reckon a motionless theology among the characteristics of a free and intelligent people.

When Edwards preached,--“The God who holds you over the pit of hell, much as one holds a spider or some loathsome insect over the fire, abhors you, and is dreadfully provoked;”--and “The sight of helltorments will exalt the happiness of the saints for ever. It will not only make them more sensible of the greatness and fulness of the grace of God in their happiness, but it will really make their happiness the greater, as it will make them more sensible of their own happiness: it will give them a more lively relish of it; it will make them prize it more when they see others who were of the same nature, and born *164 under the same circumstances, plunged in such misery, and they so distinguished. Oh! it will make them sensible how happy they are!”--he inculcated ideas of the divine government that were prevalent in and before his time, but have since been generally modified. Whether any particular or general changes in thelogical or ecclesiastical affairs are for the better or for the worse, are questions which the court, being by law incapable of officially entertaining their private religious opinions, are not authorized to consider; but perpetual change establishes a probability that change was contemplated and provided for in the constitutional grant of parochial power.

**139 Every sect has a legal right, while nominally retaining an ancient creed “for substance of doctrine,” to change it in everything that is legally, logically, or practically the substance of it. But to say that such changes as have occurred in Calvinism do not affect it “for substance of doctrine,” is to indulge in a style too hyperbolical for the practical purposes of the law, however useful it may be for other purposes. They who resist the changes of the present, may be tempted to deny the changes of the past; to yield to the temptation would weaken their cause; so far as the success of their resistance is concerned, it would be worse for them to be convicted of gross and inexcusable ignorance or insincerity, than to confess themselves guilty of progress. Every reading and thinking person, gathering information, and exercising his faculties without bigotry or prejudice, believes that the tendency is, and for a long time has been, to a religion more humane and rational (according to human tests) than that of former times. Whether the movement is towards truth or towards error, and whether it is the duty of religious teachers to accelerate the current, or to float along with it, or to stem it, it is not the duty of the court to deny a notorious fact of history, or to construe the constitution in defiance of the fact, in full view of which, and in conformity to which, the constitution established parochial independence.

“There have been times when toleration was reckoned among the number of the deadly and mortal sins. He who believed that he had the command of God to extirpate heresy, would not suffer the execution of the divine will to be retarded by the weakness of humanity. But the laws of humanity at length triumphed, and toleration came to be considered as a duty.” Muzzy v. Wilkins, 107; 1 Hutch. Hist. Mass. 288, 289. When this modern doctrine of toleration makes that a duty and a virtue which was formerly a sin, the change of doctrine is palpable. But it is immaterial whether the changes that have occurred are or are not changes in matters of substance;--changes have occurred; and it is settled that the court is not authorized to determine what is really and intrinsically substantial and essential in matters of doctrine. The Dublin case, 38 N. H. 510, 563. The experience of mankind furnishes no test of doctrinal substance. That which is insignificant and immaterial to one, is momentous and infinite to another. The history of ecclesiastical controversy and schism shows that no differences of theology, discipline, or form or ceremony, are so small as to be below *165 the jurisdiction of conscience, and within the lower jurisdiction of a court of law. “Men have in all ages suffered martyrdom for what appear to be the merest trifles.” Muzzy v. Wilkins, 107. The maxim, that the law does not concern itself about trifles, cannot be applied, by a civil tribunal, in the science of divinity or the domain of religious scruple. The law decides what is a trifle in some secular things;--an ecclesiastical tribunal, established in this country by a sect for its own voluntary government, or established in other countries by law, decides by its sectarian standards what is a trifle in spiritual and ecclesiastical affairs;-- but the law of New Hampshire has not, and, without an established religion, cannot have, any sectarian standards or legal tests by which to determine what is a trifle in faith or worship. Therefore, if the court takes cognizance of any variation, it must suppress every one, not excepting such as appear to some to be infinitesimal. The restoration would be thorough and impartial. Who would escape correction?

**140 “Who is capable of ascertaining precisely who are Calvinists and who Arminians, who are Arians and who Socinians? It would many times puzzle a jury of theological doctors to decide. I may add, it would puzzle many people to pronounce as to their own creed. * * It would require a very nice compass, and a skilful theological surveyor, to run the divisional line between Calvinists and Hopkinsians. What allowance shall be made for the variation of the needle? We have new and old Calvinists--rigid and liberal Hopkinsians--new and old divinity.” Muzzy v. Wilkins, 78. However difficult the exercise of such a power might be, the constitution could have been so framed as to require the court to exercise it; but the consequences are proper to be considered when we inquire whether it is probable that such a duty has been imposed upon the court. U. S. v. Fisher, 2 Cranch 390; 1 N. H. 114. And one of the inevitable consequences of setting up ecclesiastical jurisdiction and holding every sect to its original track would be, that the court would be compelled to encumber the freedom of nearly all the pulpits in the state with very embarrassing injunctions, and, practically, to close many of them entirely. The frequent occurrence of discontent on the part of one or more individuals in a parish would render it a busy and vexatious jurisdiction, and an evil intolerable in a free country. Under such a system, very few pulpits would have escaped an injunction during the anti-slavery controversy; and very many would now be restrained in their utterances on the alcoholic question. According to the testimony of Dr. Wayland and all other Calvinistic authorities, large numbers would be repressed in regard to their present doctrine of election. As suggested by Chancellor WALWORTH, the apostasy on the subject of witchcraft would call for censure and restitution. 1 Lecky's Hist. Rationalism, ch. i. Toleration and prohibition of cards, dancing, and tobacco would be subjects of judicial revision. There would be no end of the inquisitorial process. The court would be bound to rectify all teaching and practice, ritual and discipline, ceremony and ornament, posture and intonation, *166 personal character and life, profound mysteries of theology, concerns of the spiritual kingdom involved in the life that now is, and an infinite variety of metaphysical distinctions quite as refined as that between Homoousians and Homoiousians. “The following practices are unlawful: First, the elevation, during or after the prayer of consecration, of the paten and cup. Secondly, kneeling or prostration before the consecrated elements. Thirdly, the use of lighted candles on the communion-table during the celebration of the Holy Communion, such candles not being wanted for giving light. Fourthly, using incense in the celebration of the Holy Communion. And, fifthly, mixing water with the wine used in the administration of the Holy Communion.” Martin v. Mackonochie, L. R., 2 P. C. 365. Such is some of the work of an ecclesiastical court. An individual may so make a deed or will as to impose upon a secular court a very arduous duty in ascertaining and carrying out his intention with reference to an ecclesiastical or religious use of his property. But ecclesiastical jurisdiction, subjugating every parochial corporation in the state, making every ecclesiastical question a question of parochial corporate power, and usurping the place of parochial independence (the only ecclesiastical system established by the constitution), would be troublesome to others as well as the court.

**141 Suppose a church incorporated as a religious society, or a parochial corporation at its organization, adopting the sacraments and tests of a church: this court, having assumed the office of censor of the sermons which this Dover society is to be permitted to hear, will not be at liberty to neglect any of the duties of its ecclesiastical jurisdiction; but, upon a question of parochial corporate power, and aside from any question of a parochial use of property more limited than parochial independence, must decide whom the society shall admit to baptism and whom to communion, and dictate in detail the administration of its sacred rites. Suppose, in the exercise of the ecclesiastical jurisdiction, the court encounters societies and pastors (such as we read of, and such as we may come into collision with every day) whose consciences lead them to martyrdom; suppose, on a question of the communion, the court overrules the decision of the majority of such a society, and holds that they have transgressed the rules or usages of their sect, and the majority and their pastor take the position occupied by Calvin, in the case of Berthelier, when he declared he would sooner die than offer holy things to the excommunicated--the irresistible force of a perpetual decree in conflict with the immovable pertinacity of an everlasting religious fervor--multiplied punishment for incessant contumacy: it is safe to conclude that the people of New Hampshire, by the comprehensive securities of religious liberty and parochial independence in their organic law, did not mean to impose upon the court the duty of such a contest over a question of parochial corporate power. The argument from inconvenience is overwhelming.

“It is impossible,” says Sydney Smith, “to arrive at any knowledge of a religious sect by merely detailing the settled articles of their belief;--it *167 may be the fashion of such a sect to insist upon some articles very slightly; to bring forward others prominently; and to consider some portion of their formal creed as obsolete. As the knowledge of the jurisprudence of any country can never be obtained by the perusal of volumes which contain some statutes that are daily enforced, and others that have been silently antiquated; in the same manner the practice, the preaching, and the writing of sects are comments absolutely necessary to render the perusal of their creed of any degree of utility.” Sydney Smith's Essay on Methodism, Ed. Rev. 1808. “I know that a creed is one thing as written in a book, and another as it exists in the minds of its advocates. In the book, all the doctrines appear in equally strong and legible lines. In the mind, many are faintly traced and seldom recurred to.” 3 Channing's Works 169.

Very much depends upon the comparative importance attached to different doctrines, and the degree of thoroughness and strength with which they are grasped. A variation in these matters may give a new complexion and a new nature to the entire system of belief. And thus, in a printed creed, confession, or covenant, a total metamorphosis may, in time, insensibly take place without any typographical amendment. There has been a general transition of this kind in New England since the time of Edwards,--a transition discernible by comparison as plainly as many others which have attracted more attention, because by their suddenness and violence they produced more agitation and disturbance. In several denominations, if not in all, the whole character of theology has been gradually altered during the memory of men now living, by changes in the general tone of preaching, such as the transfer of emphasis and reiteration from divine wrath to divine benignity. And if the court could decide what is material in such matters, it might be difficult to find anything more material than a revolution in the average strain and drift of preaching, though unaccompanied by open schism and revolt, which are rendered unnecessary by the universality of the movement and the elasticity of creeds. Here would be a boundless field for the employment of the ecclesiastical jurisdiction in the destruction of religious liberty. If it were necessary in this case to seek for light in surrounding circumstances and antecedent probabilities, the current of ecclesiastical history observable in all enlightened nations, and specially in New England, as well as the general character and tendencies of our institutions, would raise an irresistible presumption that the framers of the constitution intended to secure to parishes some margin of doctrinal variation, and not to require them forever to elect public teachers whose sentiments should precisely conform, in every punctilio, to an unalterable standard.

**142 The parochial power of electing public teachers is granted or guaranteed by the constitution. Whether the constitution creates, establishes, and grants it, or recognizes, declares, and guarantees it, is immaterial. There can be no objection, in this case, to calling it a power granted. As the power is granted by the constitution, which is *168 the supreme law, we are not at liberty to look anywhere for a limitation of the constitutional power, except in the constitution itself. And when we examine the constitution to see what bounds are fixed around this parochial power, we find in the proviso in which the power is granted no limitation whatever. The language is,--“Provided, notwithstanding, that the several towns, parishes, bodies corporate, or religious societies shall at all times have the exclusive right of electing their own public teachers, and of contracting with them for their support and maintenance.” The grant is absolute and unqualified; but the clause immediately preceding the proviso empowers the legislature to authorize parishes “to make adequate provision at their own expense for the support and maintenance of public Protestant teachers of piety, religion, and morality.” No question of teaching practical piety, practical religion, or practical morality arises in this case; and, in respect to doctrinal religion and theological theories, whatever reasons there may be for holding the grant of elective power to be entirely unqualified, it cannot be claimed that it is qualified in any other manner, or to any other extent, than by the word “Protestant.” And, if it be conceded for the purposes of this case that it is qualified by that word, the question arises, What is the meaning of “Protestant” in the constitution? The word occurs in the constitution four times with one meaning. The legislature may authorize parishes to support “public Protestant teachers of piety, religion, and morality.” The governor shall be “of the Protestant religion;” senators shall be “of the Protestant religion;” representatives shall be “of the Protestant religion;” “and the qualifications for councillor shall be the same as for senator.” Part I, Art. vi; Part II, Arts. xiv, xxix, xlii, lxi. If there is any limitation of the parochial power of electing public teachers, it is no other than the “Protestant” limitation of the power of electing governors, senators, representatives, and councillors. If Abbott is not constitutionally disqualified by his religion for the offices of governor, councillor, and member of the legislature, he is not disqualified by his religion for the office of a public teacher of this Dover parish. Is he a ““Protestant,” within the meaning of that word, as used in the constitution?

**143 The original historical meaning of the word is significant. The first Protestants acquired the name in Germany, when a Catholic decree prohibited innovation in religion. Certain persons “entered a solemn protest against the decree, as unjust and impious. On that account they were distinguished by the name of Protestants--an appellation which hath since become better known and more honorable by its being applied indiscriminately to all the sects, of whatever denomination, which have revolted from the Roman see.” 2 Prescott's Robertson's Charles V 208; 3 Putter's Political Constitution of the Germanic Empire 438; Rees's Cyclop., Art. Protestant. “Hence arose the denomination of Protestants, which from this period has been given to those who renounce the superstitious communion of the Church of Rome.” 4 Mosheim's Ecc. Hist. 72. And the sects of deists and theists, of the class of Thomas Jefferson, Benjamin Franklin, Ethan *169 Allen, Gov. Plumer, and the defendant Abbott, have revolted from the Roman see, as the majority of the Protestant sects have revolted from it, by seceding from other Protestant sects whose ecclesiastical genealogy runs, through a series of revolts and secessions more or less numerous, back to the Catholic church. The Protestant party was organized for the purpose of resisting certain doctrines and practices of Catholicism in church and state; and the whole force of the Protestant name, in its popular as well as its etymological signification, lies in its expression of hostility to Rome.

Protestantism is the Protestant religion--the religion of Protestants. As a system of theology, it is positive and negative,--positive in its acceptance of affirmative doctrine, negative in its rejection of Catholicism. Mere negation is not a system of theology; and, as a system of theology, and for some ecclesiastical purposes, Protestantism is more than a negation of Catholicism. What its positive theological limits are, is a question upon which theologians are divided. The prevailing ecclesiastical opinion is, that Unitarianism is outside of those limits; and if the court hold that the constitutional parochial power of electing public teachers is limited by the Protestant test, and interpret the test as if it were used for a purpose of technical, positive theology, according to the clear weight of theological authority applicable to the execution of such a purpose, the decree is precisely the opposite of what it should be: it should suppress Unitarianism, instead of suppressing all doctrines subversive of Unitarianism. Fortunately for the plaintiffs and all other Unitarians, the Protestant test of the constitution is a legal and not an ecclesiastical one, and is founded on political and not on theological reasons. Inadequate for a theological system as a mere negation is, it is amply sufficient for the purpose of a legal official test. And Protestantism, as a negation of Catholicism, is the Protestant test of the constitution,--the legal test inherited by us and our ancestors, in this and in the old country, for many generations.

**144 Two examples, separated by long intervals of time and space, will suffice to illustrate the negative meaning of the word “Protestant” in its legal and common use. In 1641, during one of those English anti-Catholic agitations (raised by alarms of Catholic conspiracies) that frequently broke out after the reign of Mary, the House of Commons entered into a formal promise, vow, and protestation that they would maintain and defend “the true reformed Protestant religion, expressed in the doctrine of the Church of England, against all popery and popish innovations within this realm, contrary to the same doctrine.” Two days afterwards, the house passed the following explanatory resolution: “Whereas, some doubts have been raised, by several persons out of this house, concerning the meaning of these words contained in the protestation lately made by the members of this house [viz., the true reformed Protestant religion, expressed in the doctrine of the Church of England, against all popery and popish innovations within this realm, contrary to the same doctrine], this house doth declare *170 that by those words was and is meant only the public doctrine professed in the said church, so far as it is opposite to popery and popish innovations.” 1 Clarendon's Hist. of the Rebellion 410, 412. Dr. Todd, of Massachusetts, the distinguished author and orthodox clergyman, in a recent pamphlet on “fashionable murder” (by abortion), which he vehemently denounces as a crime and sin so atrocious and prevalent, that, if it continues, “the wrath of God will burn towards our land, and his indignation will glow till we are consumed,” writes thus: “I am sorry to learn, from undoubted testimony, that the practice is far more common among Protestants than among Catholics.” If religionists of the school of Jefferson and Abbott should claim that in this passage they, as a sect or class, are acquitted by the author, and excepted out of his condemnation of Protestants, Dr. Todd would be astonished at the difficulty encountered by a skilful writer in making himself understood, in the common and familiar language of the country. His intelligent readers would not understand that he exempted deists or theists from his censure of Protestants. When reproaches are cast upon Protestants, infidels must take their share; and when constitutional rights are legally administered, despised heretics are not defrauded.

The language of the constitution is to be understood in the sense in which it was used at the time of its adoption. 1 N. H. 55; 44 N. H. 635; 8 Ired. 147, 150. The Protestant test is to be understood in the ordinary and legal sense perfectly familiar to the men who, in reconstructing their political institutions in 1783, allowed the test, with many other ancient things, to remain. Among the other things allowed to remain was “trial by jury,” which imports a unanimous decision of twelve jurors, because, in the common and legal language of that time, “trial by jury” carried that signification. 41 N. H. 551. And at that time the Protestant test had, in law, and in civil, political, governmental, and common usage, a single meaning, as well established and known as the definition of trial by jury; and that meaning disabled none who were ecclesiastical descendants of the Catholic church, in any line of dissent and secession. Whether its meaning was broader than that, there is no occasion in this case to inquire. It was no new thing in 1783. It was then understood to be what it had previously been, no more and no less. What it had been, a glance at history will inform us: an extended examination of historical authorities is not necessary: a very slight acquaintance with our legal annals can leave no one in doubt. The subject is a legal and not a theological one. The test is part of a political, and not of an ecclesiastical document; and what we want to know is its common, political, and legal sense. It is nothing to the purpose to ascertain what technical theological meaning a Protestant test might have in the minds of theologians, if used for the ecclesiastical purpose of a sectarian classification, or the exclusion of doctrines inconsistent with the harmony of a church. The question is, what meaning this particular historical test actually had in civil government, where it was used, not for the *171 purpose of a theological discrimination, but for the purely political purpose of repressing and disabling what was supposed to be a foreign allegiance to papal supremacy inconsistent with the safety of a non-Catholic state.

**145 The practical construction given to the constitution by the men who framed it, and their contemporaries, and their successors inheriting their opinions, is to be considered. “For laws are founded in general upon the perception of an evil or a danger, or of a public want, and are often framed with such express reference to it as to leave a latent ambiguity in their expressions, easily solved by those who shared in the perceptions of the framers of the laws, but not apparent to after generations who have lost by the lapse of time that key to the interpretation.” C. R. R. v. Greely, 17 N. H. 63; Co. v. Fernald, 47 N. H. 458, 459; Cooley's Con. Lim. 67. The practical construction shows that the Protestant test is an anti-Catholic test and nothing else, or that, in its widest possible sweep, it does not disable for unbelief any non-Catholic who has, directly or indirectly, recently or remotely, by his own action or the action of his ancestors, become separated from the Roman Catholic church.

The constitution containing the Protestant test went into operation in June, 1784. In March, 1785, William Plumer was elected to the house of representatives. He was then well known as a deist or theist (the difference between deism and theism is not material in this case), who had been a zealous Baptist preacher though not ordained, and had traversed the state in that capacity, but had apostatized before he ceased from preaching. The circumstances and extent of his apostasy were notorious, and calculated to excite opposition. He was reëlected to the house in 1788, 1790, 1791, 1797, 1798, 1800, and 1801, and was several times speaker of that body. By election to the United States senate in 1802, he was withdrawn from state office. He was a member and president of the state senate in 1810 and 1811, and was governor in 1812, 1816, 1817, and 1818. His deism was openly avowed and never recanted. He became a politician, and did not give unnecessary offence by assailing the religion of others; but his deism was known throughout the state to be as settled and confirmed as that of Jefferson. His biographer speaks of him as an inquirer after truth. He was such an inquirer as Jefferson. He inquired after truth all his life; but during his last seventy years he found nothing that he believed to be religious truth but deism, and this fact was universally and distinctly understood by the people of the state. He first held Protestant office at the age of twenty-six, before the organization of political parties, when there could be no motive to screen him from the constitutional test so recently adopted, when his exemption could not be allowed by any change in public opinion, or by personal influence, or on the ground of military service, or any peculiar merit, and when his extraordinary apostasy called for the application of the test if it had been understood that it disabled any but Catholics. He was afterwards the leader of his party, and repeatedly its candidate for the highest office, and often *172 successful in contests far more acrimonious than any that have since occurred. And yet no attempt was ever made to exclude him from the legislature, and, throughout his long and active public life, though he was constantly and vehemently opposed on the ground of his infidelity as well as for political reasons, it is certain that it was not understood that he was constitutionally disqualified for Protestant office.

**146 And, from 1785 to the present time, there has been in the legislature a succession of similar precedents, sufficient to show the universal understanding that the test is merely anti-Catholic. Within a few years past, Catholics have held the representative office, in known contravention of the constitution; but this has resulted from a change of public opinion as to the necessity and propriety of excluding them. The test would have been enforced against them in 1785; or, if such men as Lafayette and Carroll had been citizens of the state and admitted to the legislature, the test would have been understood to be waived in their favor; but no waiver of it would have been thought necessary for Jefferson and Franklin. It has always and universally been as well understood that, under the test, all others were eligible, as that Catholics were not. And to hold that every non-Catholic in the state is disqualified for the offices of governor, councillor, senator, and representative, who does not come up to some other standard of theological soundness, is a revolutionary decision. Men still live who, with a majority of their fellow-citizens, repeatedly elected Plumer to the Protestant office of chief magistrate. These venerable men will be startled by the charge now made, that his holding the highest office in their gift was a violation of the constitution. They will be surprised by such a manifestation of the irreverent and innovating spirit of the present generation. They will wonder how the settled constitutional principles and practices of the fathers could be subverted in a case of religious persecution.

If Judge WOODBURY had delivered his opinion on this point from the bench, he could hardly have stated it more explicitly than he did in his speech against the test in the constitutional convention of 1850, when he said,--“This test crept into the constitution originally under a temporary impulse. * * Tradition says, and I probably had it in early life from the venerable parent of the member from Epping (Mr. Plumer),--that parent the Nestor of the politicians of that generation, and sole survivor of the convention of 1791,--that the provision was inserted in 1784 to repel taunts which had been flung out by some, after the French alliance, that there was to be an alliance also with the French religion, and the establishment of it here. The provision fell then still-born, so few Catholics existed in the state. * * If any soreness against Catholic persecutions of the puritans abroad mingled with this, and rendered prejudice stronger with some against erasing the test, they ought, for more recent persecution by Laud and the Episcopalians in England, to have excluded them also. But it was right to exclude neither. * * There is now no dread of French influence or French religion. * * It is likewise contrary to all *173 sound experience and reason to say, as we do, that Catholics may vote but not be voted for. * * So it is inconsistent to * * agree, as we do, in the constitution of the Union, that Catholics may be fit and safe for members of congress, senators, cabinet officers, yea, presidents, and yet denounce them as unfit and unsafe at home to represent one hundred and fifty polls in one of our small townships. * * Why not as well explicitly say, and not do it covertly, that none but Protestants are fit for a republic? Why not say that Catholic Maryland is unfit? Catholic Ireland? Catholic France? * * Indeed, this test debars man from what we allow to the degraded African, as he is eligible here to hold office as well as to vote. * * The Protestant himself cannot now vote here for a Catholic. * * In most Catholic countries Jesuitism is banished and the inquisition abolished, and the pope himself has become quite a reformer and republican. * * What sect did Sidney, or Locke, or Jefferson, or Madison think fit to be trusted with legislative power?” 1 Woodbury's Writings 486, 487, 504.

**147 If the sole reason for inserting “Protestant” in the constitution was, as Judge WOODBURY and Gov. Plumer understood, the tendency of the French alliance to introduce the established Catholic religion of France, it is the key of interpretation. If that was the sole danger which the test was intended to avert, it determines the meaning of the word, which the court are bound to declare. When WOODBURY said, “The provision fell then still-born, so few Catholics existed in the state,” he did not understand that, in the absence of Catholics, the test could reach Gov. Plumer, whom he described as “the Nestor of the politicians of that generation.” It had not occurred to him that Jefferson (to whom he referred) and Plumer (who was then alive, and whose son was a member of the convention) could have been barred by the test. If he had supposed that they could have been within its proscription, he would have adduced that circumstance as an additional reason for its abolition. And it would seem that he did not understand that an African would be excluded by an African religion.

The test was discussed by others in the convention of 1850. It was asserted that it was not “safe to elect a man governor who was sworn to the pope of Rome, and believed that all Protestants were heretics and should be persecuted unto death;” that it was the religion of Catholics that “though they might be bound by all the oaths that could be imposed on them, they might be absolved by the pope;” that the French had never “yet been able to maintain a republic, * * because they were bound by another power--popery.” But it was not suggested that the test had a two-fold character or operation, or that it excluded any but Catholics. The convention was a very remarkable assembly of the highest learning and ability of the state, both the political parties of the time being amply represented in it by men of experience and distinction in public affairs. The authority of the convention is entirely satisfactory and decisive as to the universal understanding of the meaning of the test. They voted almost unanimously to abolish the test, and the debates show conclusively that they understood it to be merely *174 anti-Catholic. There were clerical and other members who would not have voted for total repeal if they had suspected that the test was also anti-infidel. Though not disposed to bring forward an anti-infidel test as a new measure, some would not have voted to expunge an existing test of that kind without saying a word on its anti-infidel character when its abolition was discussed. If it had been understood to be a double-barrelled weapon, pointing in opposite directions at deists and Catholics (two classes of people most violently opposed to each other in religion), the convention would not have voted to destroy both barrels without any attempt being made by anybody to destroy one and save the other, and without any other reason for the destruction of both being given or called for than the bearing of one on Catholics. And the people, in refusing to strike out the test, understood they were voting upon a purely Catholic question.

**148 Judge WOODBURY was mistaken in supposing that the Protestant test in the constitution was due to a temporary impulse excited by the French alliance. The same test was in the constitutions of some of the states before that alliance. 9 Bancroft's Hist. U. S. 261, 275, 279, n., 369, 481. At the commencement of the revolutionary war, political equality was extended to Catholics in but few of the colonies. 3 Hildreth's Hist. U. S. 382, 385; Baird's Religion in Am. 542. “The French alliance had * * a powerful effect in diminishing the deep-seated prejudices against Catholicism.” 3 Hildreth's Hist. U. S. 385. When Benedict Arnold, in 1780, endeavored to vindicate his desertion of the American cause, his denunciation of the French treaty as an alliance with “the enemy of the Protestant faith” was an appeal to the negative and not to the positive religious sentiment of the country,--to the ancient spirit of anti-Catholicism, which came from Europe with the first immigrants, and was quite as violent and inveterate in the most irreligious as in any others. The repeal of some of the harsher statutes against the Catholics was so unpopular as to produce in 1778 violent commotions in Scotland, and in 1780 a series of riots in London, during which that city remained for several days in the hands of a furious and destructive mob. King v. Gordon, 21 Howell's St. Tr. 485; 2 May's Const. Hist. Eng. 320, 321; 3 Hildreth's Hist. U. S. 334. The Protestant test was an old one in 1783. It had been in use in England long before the settlement of Portsmouth, Plymouth, or Jamestown; had been sent from the mother country, and set up here by the British government; had been preserved by the provincial government; was not removed by the authors of the state constitution. The fear of Catholic power had possessed the minds of the people of New England and other American colonies, and the minds of their ancestors, and had been a controlling and habitual cause of legislation and administration in this province and in other colonies from the beginning, and in the mother country and on the continent of Europe from the times of the reformation.

In the constitution of New Hampshire, the test was merely an English colonial inheritance,--a continuation of the usage and general *175 plan of Catholic disabilities that had always prevailed here, and had long prevailed in other Protestant countries, corresponding to a similar system of Protestant disabilities in Catholic countries. It was a surviving remnant of the rigorous system practised against each other by both parties in their long, desperate, and bloody struggle for the mastery, and for liberty and life. For many generations, the English and Scotch people lived in constant fear of Catholic succession in their own government, and Catholic invasion and insurrection in their own territory. Their national existence was in frequent peril from Catholic conquest; and their antipathy to Catholics, in course of time, grew into a fierce national animosity, which was entertained as warmly by men of no religion as by the most pious and devout. And the feeling was not less strong on the other side. The conflict between the Catholic and Protestant parties filled the most civilized states of Europe with wars, massacres, and barbarous atrocities, transcending, in enormity, the religious crimes of contemporary paganism. At the time of the adoption of our constitution, the sanguinary contest had abated; but an independent Protestant nation without a Protestant test, or an independent Catholic nation without a Catholic test, would have been a marvellous case of innovation. If the framers of our constitution had omitted the Protestant test, they would thereby have repealed a principle of fundamental law under which they and their fathers had lived since the reign of Mary. From the end of that reign until 1829, a period of two hundred and seventy years, England had a Protestant test, and for a long time Catholic priests were disqualified to live on English soil. 1 Hale P. C. 75, 76, 328-338; 1 Hawk. P. C., ch. 12, 13, 14, 15; 2 Camp. Ch. Justices 391; Com. Dig., Justices (K, 9); id. Justices of the Peace (B. 14, 15, 17, 18, 19); 4 Burn's Justice, title Popery.

**149 The Virginia charter of 1609, and the New England charter of 1620, prohibited the migration of Catholics to those colonies. 1 Haz. Hist. Coll. 72, 117. And Mason's grant of New Hampshire, in 1629, was made with the “exceptions, reservations, limitations, and declarations” of the New England charter. 1 N. H. Hist. Coll. 307. The royal charter or letters patent of 1679, or commission of President Cutt, as it is usually called, which inhibited the jurisdiction exercised by Massachusetts over New Hampshire, dissolved their union, and established a frame of government here, may be regarded as the constitutional foundation of New Hampshire provincial law, from 1679 to the revolution. State v. Rollins, 8 N. H. 562, 563; 8 N. H. Hist. Coll. 11; 1 Story Com. on the Con., sec. 80. At the time of the revolution, that constitution was prefixed to the provincial statutes in the printed volume of laws, as the state constitution has since been prefixed to the various editions of the statutes of the state. The names of the offices of president and council, used in the provincial constitution, were continued in the temporary government of 1776, and in the constitution of 1784. The provincial constitution followed the Massachusetts charter, English statutes, English policy, and English usage, in requiring that the president, and all other members of the council, *176 in whom the chief powers of government were vested, should take the oaths of allegiance and supremacy. Laws of 1771, p. 1; 8 N. H. Hist. Coll. 1.

The oath of supremacy was designed to exclude Catholics by its renunciation of the pope's authority. 1 Bl. Com. 368; 2 May Const. Hist. Eng. 295. “The acts of supremacy and uniformity form the basis of that restrictive code of laws deemed by some one of the fundamental bulwarks, by others the reproach of our constitution, which pressed so heavily for more than two centuries upon the adherents to the Romish church.” 1 Hallam Const. Hist. Eng. 112. In 1559, by the act of supremacy,--the first act of the reign of Elizabeth,--all beneficed ecclesiastics, and all laymen holding office under the crown, were obliged to take the oath of supremacy, and, by 5 Eliz., c. 1, every member of the House of Commons was obliged to take the same oath. 1 Hallam C. H. Eng. 116; 2 May C. H. Eng. 293; Hale P. C. 328.

The substance of the oath was,--“I, A B, do utterly testify and declare that the queen's highness is the only supreme governor of this realm, and all other her highness's dominions and countries, as well in all spiritual and ecclesiastical things or causes as temporal; and that no foreign prince, person, prelate, state, or potentate, hath, or ought to have, any jurisdiction, power, superiority, preëminence, or authority, ecclesiastical or spiritual, within this realm; and therefore I do utterly renounce and forsake all foreign jurisdictions, powers, superiorities, and authorities, and do promise that from henceforth I shall bear faith and true allegiance to the queen's highness, her heirs and lawful successors.” Elizabeth's contemporaneous exposition of the act and the oath was, that the crown did not claim “authority and power of ministry of divine service in church,” nor any other authority than that anciently due to the crown; “that is, under God, to have the sovereignty and rule over all manner of persons born within these her realms, dominions, and countries, of what estate, either ecclesiastical or temporal, soever they be, so as no other foreign power shall or ought to have any superiority over them,”--showing clearly that the oath was aimed at the supposed supremacy of the pope over all Catholics. “This interpretation was afterwards given in one of the thirty-nine articles, which, having been confirmed by parliament, it is undoubtedly to be reckoned the true sense of the oath.” 1 Hallam C. H. Eng. 112. “The Presbyterians, the Independents, and the Baptists had no scruple about the oath of supremacy.” 3 Macaulay's Hist. Eng. 65; Belknap's Hist. N. H., ch. 3.

**150 After imposing the oath of supremacy, the New Hampshire provincial constitution of 1679 requires “that liberty of conscience shall be allowed unto all Protestants;” and the meaning of “Protestants,” as here used, is shown with absolute certainty by a document referred to in the next sentence, where the council are authorized “to cause proclamation to issue and be made in our name, to the inhabitants of the said province of New Hampshire, thereby signifying that we have taken them into our immediate government and gracious protection: *177 and letting them further know that we have written to the governor and council of the Massachusetts Bay, to recall all such commissions as they have granted for exercising any jurisdiction” in New Hampshire. The provincial constitution, and the order to the Massachusetts government thus referred to, were issued by the king in council, were parts of one transaction,--Belk. Hist. N. H., ch. 6; 3 Palfrey's Hist. N. E. 326, 402,--and were undoubtedly drawn by the law officers or legal advisers of the crown. They were contemporaneous decrees of the British government, relating to the same subject-matter, of equal force and authority, and are to be interpreted as if they were parts of one decree, because a government is supposed to have one object in view and to act upon one system. 12 N. H. 290; 28 N. H. 71; 37 N. H. 248, 304. The order to the Massachusetts government recites that “for many months past our councill hath been taken up in the discovery and prosecution of a popish plott; and yet there appears little prospect of any speedy leasure for entring upon such regulation in your affaires as is certainly necessary;” and requires that all “good subjects (not being papists)” shall be allowed “freedom and liberty of conscience,” and shall not “be by law subjected to fines or forfeitures or other incapacities” on account of their religion; that all commissions granted by Massachusetts “for the governing within” New Hampshire, be recalled, and declares such commissions void. Hutch. Coll. 519. We know, then, upon the authority of the British government itself, the author of our provincial constitution, giving the definition at the time it composed that instrument, that the word “Protestant” therein contained means “not being papists.”

Among the written instructions given by the same government to Allen, governor of New Hampshire, with his commission, dated in 1692, is this: “You are to permit liberty of conscience to all persons except papists.” 2 N. H. Prov. Papers 65. Under a constitution thus interpreted to them by the government that made it, the people of this province had been living nearly an hundred years when the revolutionary war began. The legal meaning of Protestantism in our law has never been modified. And, as the whole system of provincial law, so far as it was consistent with independence, and not repealed, was by special act continued through the revolution, it may be truly said that the same meaning passed with the word itself, without interruption, into the constitution of the state; and that the word now remaining in the organic law, where it has been one hundred and eighty-nine years, has the same meaning it had when it was put there by the British government.

**151 When the new government went into operation here in 1680, under the constitution of 1679, the code of laws enacted by the provincial legislature was, in general substance and style, a copy of Massachusetts statutes. But in relation to a religious test there was a notable departure from the Massachusetts model,--a departure caused by a well-known dissimilarity.

“While in the colonization of Massachusetts religious motives were *178 foremost, the planters on the Piscataqua established themselves here chiefly for purposes connected with commerce and the fisheries.” Peabody's Hist. South Parish of Portsmouth 45; 3 Woodbury's Writings 201; Lawrence's Hist. N. H. Churches 317; 18 Monthly Law Reporter 301; 4 N. H. Hist. Coll. 6. The difference was such that, when the New Hampshire settlers passed under the jurisdiction of Massachusetts, it was agreed that they should be exempt from the operation of the Massachusetts law by which church-membership was made a test of the right to vote. Belk. Hist. N. H., ch. 2. But for their exemption from that test, the union with Massachusetts would have produced a disfranchisement of New Hampshire voters, to which they would not have been easily reconciled. And the same difference appeared after the union of the two colonies was dissolved: in Massachusetts it was the duty of towns to employ ministers; in New Hampshire it was their right, but not their duty. And when the colonies became states, the same diversity of spirit continued in their bills of rights. The Massachusetts form was imperative: “It is the right as well as the duty of all men * * to worship the Supreme Being. * * The legislature shall * * authorize and require” towns and other parishes to support public worship and religious instruction (5 Mass. 257);--but the New Hampshire copy (1783) was permissive: “Every individual has a natural and unalienable right to worship God according to the dictates of his own conscience and reason. * * The people * * empower the legislature to authorize” towns and other parishes to support public worship and religious instruction; and the Massachusetts provision in relation to compulsory attendance at church was wholly omitted. The New Hampshire constitution (1783) required all civil and military officers “(town officers excepted)” to take an oath of allegiance, which contained the following declaration: “And I do further testify and declare that no man or body of men hath or can have a right to absolve me from the obligation of this oath, declaration, or affirmation; and that I do make this acknowledgment, profession, testimony, and declaration, honestly and truly, according to the common acceptation of the foregoing words, without any equivocation, mental evasion, or secret reservation whatever.” This declaration was taken from the Massachusetts constitution, into which it had been copied from ancient forms of English oaths designed to detect Catholics, and aimed at the supposed theory of papal supremacy and absolution, and the alleged equivocation and casuistry of Jesuits. King v. Guy Fawkes, 2 How. St. Tr. 159, 171-174, 178, 180, 181; King v. Langhorn, 7 id. 520, 543-570; Miller v. Salomons, 7 W. H. & G. 475, 519, 536; Jardine's Gunpowder Plot 219, 233. But New Hampshire did not copy the Massachusetts context,--“I, A B, do declare that I believe the Christian religion, and have a firm persuasion of its truth.” This omission was characteristic; and its significance could hardly be over-estimated in ascertaining the meaning of the Protestant official test in New Hampshire, if it had any other than an anti-Catholic meaning anywhere else.

**152 *179 In 1662, the king, in a mandate directed to the Massachusetts government, confirmed the Massachusetts charter, pardoned all political offences committed during the time of the English commonwealth, and undertook to protect Episcopalians against puritan persecution in this manner: “Since the principle and foundation of that charter was and is the freedom and liberty of conscience, wee do hereby charge and require you that that freedom and liberty be duely admitted and allowed so that they that desire to use the booke of common prayer” undergo no disadvantage, “they using theire liberty peaceably, without any disturbance to others; and that all persons, of good and honest lives and conversations, be admitted to the sacrament of the Lord's supper, according to the said booke of common prayer, and their children to baptisme. * * Commanding all persons concerned that * * all the freeholders of competent estates, not vicious in conversations, orthodox in religion (though of different perswasions concerning church government), may have their vote in the election of all officers, civill or military.” Hutch. Coll. 377. In 1665, Massachusetts, feigning a partial obedience to the royal edict, repealed the church-membership test of voters, and enacted that “all Englishmen, presenting a certificate under the hands of the ministers or minister of the place where they dwell that they are orthodox in religion and not viceous in their lives, and also a certificate under the hands of the selectmen * * that they are freeholders and are * * rateable * * to the full value of ten shillings, or that they are in full communion with some church among us, * * being twenty-four years of age, householders and settled inhabitants,” might be made voters by special acts of the general court “according to the rules of our patent.” Mass. Charters 117; 3 Palfrey's Hist. N. E. 65.

The New Hampshire code of 1680 conferred the elective franchise upon all “Englishmen, being Protestants, that are settled inhabitants and freeholders * * of the age of twenty-four years, not viceous in life, but of honest and good conversation, and such as have £20 rateable estate, * * having also taken the oath of allegiance to his majesty.” 8 N. H. Hist. Coll. 23. In adopting the Massachusetts statute, the people of New Hampshire struck out the orthodox test, because it was not agreeable to the religious condition of this province; and they inserted in lieu thereof the Protestant test, because they understood it to be a criterion of soundness on the Catholic question alone, on which question they who had no religion at all agreed with the orthodox. They used the word “Protestants” in the sense in which it was used by the British government in the provincial constitution under which they were living and legislating.

**153 A proclamation for a fast, issued by the council and general assembly in March, 1681, runs thus: “Ever seriously and loyally imploring the divine favor for the continuance of his majesty's life and prosperous reign, as the protection of God's cause and church against the popish party throughout the world.” Belknap's Hist. N. H., App. No. 30; 8 N. H. Hist. Coll. 63.

*180 In 1682, Cranfield's commission, which was substantially a renewal of the constitution of 1679, authorized the lieutenant-governor to administer to the council “the oaths of allegiance and supremacy, and the test mentioned in the act of parliament, made in the twenty-fifth year of our reign, entitled an act for preventing dangers which may happen from popish recusants,”--the assembly to take the oaths of allegiance and supremacy. 1 N. H. Hist. Coll. 262, 263; 8 id. 80; Belk. Hist. N. H., App. No. 51. The act of parliament referred to was the act of 1673, commonly called the test act, which drove from office the duke of York, the king's brother and heir presumptive of the crown. “The act of supremacy * * had imposed on all accepting temporal as well as ecclesiastical offices an oath denying the spiritual jurisdiction of the pope.” 2 Hallam's C. H. Eng. 393. But in time, some of the enacting clauses were thought not to be sufficiently stringent. “It was found also by experience that persons attached to the Roman doctrine sometimes made use of strained constructions to reconcile the oath of supremacy to their faith. Nor could that test be offered to peers who were excepted by a special provision. For these several reasons, a more effectual security against popish counsellors, at least in notorious power, was created by the famous test act of 1673, which renders the reception of the sacrament according to the rites of the Church of England, and a declaration renouncing the doctrine of transubstantiation, preliminary conditions without which no temporal office of trust can be enjoyed. In this fundamental article of faith no compromise or equivocation would be admitted by any member of the church of Rome.” 2 Hallam's C. H. Eng. 393. “The test act directs all officers, civil and military, to take the oaths” of allegiance and supremacy, “and make the declaration against transubstantiation,” and “receive the sacrament of the Lord's supper, according to the usage of the Church of England, within six calendar months after their admission” to office. 4 Bl. Com. 59.

The design of the test was to exclude Catholics. 2 May's C. H. Eng. 304; 1 Burnet's Hist. Own Times 347-352; Echard's Hist. Eng. 889; 11 How. St. Tr. 1165. “It was brought in by the patriots in the reign of Charles II, under their apprehensions of popery and a popish successor, and is styled an ‘Act for preventing danger which may happen from popish recusants,’ and the same is said to be its design in the preamble. And when, during the debate in the House of Commons, it was observed that it was drawn in such a manner as to comprehend the Protestant dissenters [by the sacramental requirement], the court party endeavored to avail themselves of that circumstance in order to defeat the bill; but the dissenting members disappointed them by declaring that they had rather confide in the justice and generosity of parliament to pass some future bill in their favor, than by the occasion of retarding or defeating the security which the present bill was calculated to afford to the liberties of their country.” Bl. Com. Appendix 97, Am. ed. 1773; 2 Hallam's C. H. Eng. 394; 2 May's C. H. Eng. 304; 1 Macaulay's Hist. *181 Eng. 208; 6 Hume's Hist. Eng. 117; 12 Lingard's Hist. Eng. 271; 3 Palfrey's Hist. N. E. 19. The earl of Bristol, a Catholic, in the House of Lords, advocated the passage of the test act, on the ground that there was a “necessity of a timely remedy, since” fears and jealousies had “indeed most violently seized and distempered the minds of the major part of his majesty's Protestant subjects.” He declared that the act was “full of moderation towards Catholics,” and that, “notwithstanding the allarms of the encrease of popery and designs of papists,” the act provided no severe measures. “Is not the moderation of the House of Commons to be admired,” he asked, “that they have restrained it to the sole point of debarring their adversaries from offices and places, and from accessions of wealth by favour of the sovereign?” Echard's Hist. Eng. 892. Lingard suggests that the course of the earl was hypocritical. 12 Lingard's Hist. Eng. 270.

**154 It is difficult here and now to imagine the state of things in which Protestant dissenters supported the test act,--voluntarily disabling themselves for the sake of disabling their dreaded enemies,--and in which a Catholic could even pretend to support it for the purpose of allaying public apprehension and disarming hostility. But it is not difficult to understand the meaning of Cranfield's commission, when, after providing for the oath of supremacy and the operation of the test act, it required that liberty of conscience “be allowed unto all Protestants.”

By his commission, Cranfield was made vice-admiral, and, as such, was to receive instructions “from our dearest brother, the duke of York, or high admiral of our foreign plantations.” In 1683, Edward Gove, a leading man, who served in the assembly for the town of Hampton, “made it his business to stir the people up to rebellion, by giving out that the governor, as vice-admiral, acted by his royal highness' commission, who was a papist, and would bring popery in amongst them.” Belk. Hist. N. H., App. No. 33; 8 N. H. Hist. Coll. 171. England had been and continued to be in a ferment on the same subject. 6 Hume's Hist. Eng., ch. 67, 68. Three years before, the Commons passed a bill excluding the duke from the throne: five years afterwards, the nation expelled him. The overthrow of his Catholic administration accomplished the object of Gove's enterprise. The New Hampshire rebel “was convicted, and received sentence of death in the usual hideous form.” In the revolution of 1688, his treason triumphed on a large scale.

In 1684, Cranfield caused Rev. Joshua Moodey, of Portsmouth, to be prosecuted, convicted, and imprisoned, for obstinately refusing to administer the sacrament of the Lord's supper, according to the manner and form set forth in the book of common prayer of the established Church of England, and obstinately using some other form. Belknap's Hist. N. H., ch. 8, and App. No. 36. In his defence, Moodey pleaded, among other things, the liberty of conscience granted to all Protestants in the provincial constitution; and by a minority of the court this was held a good plea and a perfect defence. The decision of the *182 majority of the court has not acquired sufficient weight to be cited as an authority. In 1685, one of the complaints against Cranfield, tried before the Lords of Trade, was, that he had persecuted “ministers contrary to his majesty's commission, which grants liberty of conscience to all Protestants.” Belknap's Hist. N. H., ch. 8; 1 N. H. Hist. Coll. 268.

At the English revolution of 1688, the act of 1 W. & M., sess. 2, c. 2, settled the crown first on William and Mary, then on the survivor of them, and then on the issue of Mary; upon failure of such issue, it was limited to Anne and her issue; and lastly, on failure of that, to the issue of William. “This settlement included all the Protestant posterity of King Charles I, except such other issue as King James might at any time have, which was totally omitted through fear of a popish succession.” 1 Bl. Com. 214. The act of settlement, alleging that “it hath been found by experience that it is inconsistent with the safety and welfare of this Protestant kingdome to be governed by a popish prince, or by any king or queene marrying a papist,” enacted “That all and every person and persons that is, are, or shall be reconciled to, or shall hold communion with the See or Church of Rome, or shall professe the popish religion, or shall marry a papist, shall be excluded and be forever uncapeable to inherit, possesse, or enjoy the crowne and government. * * And in all and every such case or cases, the people of these realms shall be and are hereby absolved of their allegiance. And the said crowne and government shall from time to time descend to and be enjoyed by such person or persons, being Protestants, as should have inherited and enjoyed the same in case the said person or persons soe reconciled, holding communion, or professing, or marrying as aforesaid, were naturally dead.” And the sovereign was required to make the declaration against transubstantiation.

**155 The discovery of the conspiracy to assassinate the king in 1696 was one of the occasions of intense anti-Catholic excitement that frequently occurred after the reign of Mary, when a paroxysm of terror and fury came upon all the anti-Catholic people of the British empire in all parts of the world. The first statute in the volume of New Hampshire Laws, compiled by order of the general assembly in 1771, was enacted in 1696. The preamble is,--“Whereas, a late horrid and detestable conspiracy against his majesty's sacred person” has been discovered; and the first section requires all males, “from sixteen years old and upward,” to “take the oaths appointed by act of parliament, to be taken instead of the oaths of allegiance and supremacy.” The act of parliament referred to was 1 W. & M., c. 8, which abrogated the oath of supremacy of 1 Eliz. and the oath of 3 Jac. I, commonly called the Oath of Allegiance and Obedience. The statute 3 Jac. I, c. 4, was entitled “An acte for the better discovering and repressing of popish recusants,” and contained the following preamble: “Forasmuch as it is found by daylie experience that many of his majestie's subjects that adhere in theire hearts to the popish religion by the infection drawne from thence, and by the wicked and develishe councell of Jesuits, seminaries, *183 and other like persons dangerous to the church and state, are soe farre perverted in the pointe of theire loyalties and due allegiance unto the king's majestie and the crowne of England as they are readie to entertaine and execute any treasonable conspiracies and practices, as evidently appeares by that more than barbarous and horrible attempt to have blownen up with gunpowder the kinge, queene, prince, lordes, and commons, in the Howse of Parliament assembled.” Section 9 of this act prescribed the following oath of allegiance:

“I, A B, doe truely and sincerely acknowledge, profess, testifie, and declare” that King James is lawful king, &c., “and that the Pope, neither of himself nor by any Authority of the Church or Sea of Rome, or by any other meanes with any other, hath any Power or Authority to depose the King, or to dispose any of his Majestie's Kingdomes or Dominions, or to authorize any Forraigne Prince to invade or annoy hym or his countries or to discharge any of his Subjects of their Allegiance and Obedience to his Majestie. * * And I doe sweare from my heart that notwithstanding any Declaration or Sentence of Excommunication or Deprivation made or graunted, or to be made or graunted, by the Pope and his Successors, * * or any Absolution of the saide Subjects from theire Obedience, I will beare Faithe and true Allegiance. * * And I doe further sweare that I doe from my heart abhor, detest, and abjure, as impious and hereticall, this damnable Doctrine and Position that Princes, which be excommunicated or deprived by the Pope, may be deposed or murthered by theire Subjects, or any other whosoever. And I doe believe, and in my conscience am resolved, that neither the Pope nor any person whatsoever hath power to absolve me of this oath or any parte thereof, * * and doe renounce all Pardons and Dispensations to the contrarie; And all these things I doe plainly and sincerely acknowledge and sweare, according to these expresse wordes by me spoken, and according to the playne and common sense and understanding of the same wordes, without any equivocation or mentall evasion or secret reservation whatsoever.”

**156 For the oath of supremacy of 1 Eliz., and the oath of allegiance and obedience of 3 Jac. I, the act 1 W. & M., c. 8, substituted the following: 1, To be faithful, and bear true allegiance to the sovereign; 2, “I, A B, doe Sweare That I doe from my Heart Abhor, Detest, and Abjure, as Impious and Hereticall, that Damnable doctrine and Position That Princes Excommunicated or deprived by the Pope or any Authoritie of the See of Rome, may be Deposed or Murthered by theire Subjects, or any other whosoever; And I doe Declare that noe Forreigne Prince, Person, Prelate, State, or Potentate hath or ought to have any Jurisdiction, Power, Superiority, Preëminence, or Authoritie, Ecclesiasticall or Spirituall, within this Realme.” And these oaths, which no Catholic could take, were required by the New Hampshire provincial act of 1696 to be taken, “on due notice of time and place,” by “all male persons” “from sixteen years old and upward,” under penalty of imprisonment or fine and bonds of good behavior,--the notices to be given and the oaths administered by “by two or more justices of *184 the peace, appointed thereto by the Lieutenant-Governor, for each town.” The provincial act remained in force until the American revolution of 1776; and it then became void, not because it prohibited Catholic allegiance, but because it required the British allegiance, which was ruptured by that revolution.

Upon the discovery of the conspiracy of 1696, an association was formed in England and her colonies, including New Hampshire, by the written agreement of hundreds of thousands to stand by the Protestant succession. 4 Macaulay Hist. Eng. 531, 545; 8 N. H. Hist. Coll. 356; 2 N. H. Prov. Papers 258. And the multitudes who composed that Protestant Association in England and America, and elsewhere, as distinctly understood that they combined against nothing but Catholic supremacy, as the signers of the American Association test of 1776 understood that they combined against British supremacy.

The statute 3 Jac. I, c. 4, was passed on the discovery of the Gunpowder Plot; and the sentiment of the people was manifested here, on the anniversary of that discovery, by such excessive demonstrations, that it was necessary, as late as 1771, to continue a temporary law made to prevent disorders in the annual celebration of that anti-Catholic jubilee. Temporary Laws 1771, p. 44.

In 1701, “upon the impending extinction of the Protestant posterity of Charles the First,” on whom the crown had been settled, it became necessary for parliament to pass another act of settlement, “and the Princess Sophia * * was the nearest of the ancient blood royal who was not incapacitated by professing the popish religion. On her, therefore, and the heirs of her body, being Protestants, the remainder of the crown, expectant on the death of King William and Queen Anne without issue, was settled.” 1 Bl. Com. 216. On that foundation the settlement of the British crown remains to the present time. And when Blackstone says that Sophia was the nearest heir who was not incapacitated by Catholicism, and that therefore the remainder of the crown was settled on her and the heirs of her body, being Protestants, he could not more plainly declare that in English government, English law, and English policy, the idea of Protestantism was the idea of hostility to Catholicism. The new and additional regal test, introduced in 1701, which required the possessor of the crown to join in the communion of the church of England, as by law established,--1 Bl. Com. 216,--was designed by the Episcopalian majority of English Protestants to strengthen the state church; was an Episcopalian and not a Protestant test; and it in no way affects the meaning of the Protestant test. And that part of the coronation oath prescribed at the revolution, by which the sovereign was bound officially to maintain the Protestant reformed religion established by law, was one of the guaranties of a sectarian constitution. The Protestant reformed religion established by law was the sectarian religion of the established church. Burke's Letter to Sir H. Langrishe, 3 Burke's Works 462, 463 (1st. Am. ed.). The Protestant test, alone, excluded from the throne no member of any of the races then and *185 there practically recognized as human beings, in whose ecclesiastical pedigree the Catholic church was found, and who refused to be reconciled to that church. But that test not being enough for the purposes of the sectarian inequality established by law, the other sectarian tests were affixed to the crown. “The king may inherit the crown as a Protestant, but he cannot hold it according to law, without being a Protestant of the Church of England.” 3 Burke's Works 462.

**157 In 1714, the act of parliament 1 Geo. I, st. 2, c. 13, “For the further security of his majesty's government, and the succession of the crown in the heirs of the late princess Sophia being Protestants,” referring, in the preamble, to 12 & 13 W. III, c. 2, which settled the succession of the crown upon the princess Sophia, and the heirs of her body “being Protestants,” and to several other acts for the security of the succession of the crown “in the Protestant line,” required all officers, civil and military, and all ecclesiastical persons, schoolmasters, and lawyers, to take the oath of allegiance and abjuration of the pope's supremacy, in the form established at the revolution of 1688, and also an oath to maintain the succession of the crown in the heirs of “Sophia being Protestants.” And these oaths were taken by the clergy, and all civil and military officers in New Hampshire, on the accession of George II in 1727. 4 N. H. Hist. Coll. 384. Anti-Catholic oaths, and the declaration against transubstantiation, constituted the Protestant test of the province--2 N. H. Prov. Papers 57, 58, 59, 63, 65, 306, 307, 314, 315, 320, 321, 326, 330, 367, 368, 369, 375, 376, 408, 658, 663, 665, 668, 679, 697, 706, 711, 713, 727; and the object of the test has never been changed.

The principle upon which the descent of the crown was settled was applied to the inheritance and conveyance of real estate in a manner that clearly exhibits the character of the Protestant test. It was enacted by 3 Jac. I, c. 5, that any child going beyond seas, under certain circumstances, without license from the government, should take no benefit of real estate until such child, being of the age of eighteen years or more, should take the oath, etc., and “the next of his or her Kinne which shall be no Popishe Recusant, shall have and enjoy the saide” real estate. The act 11 & 12 W. III, c. 4, entitled “An Act for the further preventing the Growth of Popery,” provided that “If any Person, educated in the Popish Religion or professing the same, shall not, within Six Months after he or she shall attaine the Age of Eighteene Yeares, take the Oaths of Allegiance and Supremacy, and also subscribe the Declaration, * * every such person shall * * be disabled and made incapable to inherit” real estate, and “during the Life of such Person, or until he or she doe take the said Oaths, and make, repeate, and subscribe the said Declaration, * * the next of his or her Kindred which shall be a Protestant, shall have and enjoy the said” real estate, and “every Papist * * shall be disabled and is hereby made incapable to purchase” real estate, and all conveyances of real estate, or interests or profits therein, to or for the benefit of any such person, shall be utterly void. The subject-matter of these *186 statutes was one and the same, and “the next of his or her Kinne which shall be no Popish Recusant,” in the former, is synonymous with “the next of his or her Kindred which shall be a Protestant,” in the latter. “The 3 Jac. I, c. 5, gives the pernancy of the profits, in cases of disabilities, to the next of kin that is not a popish recusant; and R. Ow. [Roger Owen] was the next Protestant of kin.” Bac. Ab., Papists (C), 2. “It is enacted by the statute 11 & 12 Will. III, c. 4, that every papist, who shall not abjure the errors of his religion by taking the oaths to the government and making the declaration against transubstantiation,” is disabled. 2 Bl. Com. 257. The only legal distinction between a Catholic and a Protestant was thus distinctly declared to be, taking the oaths to the government and making the declaration. And in a great number of statutes the terms “papist” and “Protestant” were used in the unmistakable signification pointed out by those oaths and that declaration, which were established boundary lines between the two parties. Bac. Ab., Papists.

**158 12 Anne, sess. 2, c. 14, related to “every papist * * and every child, not being a Protestant under the age of one and twenty years, of every such papist.” 1 Geo. I, st. 2, c. 55, required every “popish recusant or papist” to take the oaths and make the declaration, or register his or her name and real estate, under the penalty of forfeiture of the real estate, “two third parts thereof to the king, and the other third part thereof to such person or persons being a Protestant or Protestants, who shall sue for the same.” 3 Geo. I, c. 18, s. 4, provided that no sale of real estate to “any Protestant purchaser” should be avoided by the disabilities of a Catholic grantor. 8 Geo. II, c. 25, and 21 Geo. II, c. 21, were acts “to indemnify Protestant purchasers of estates of papists.” 12 Geo. III, c. 10, 14, Geo. III, c. 37, and 17 Geo. III, c. 45, were acts “for allowing further Time for Inrolment of Deeds and Wills made by Papists, and for Relief of Protestant Purchasers.” In the reigns of Geo. II and Geo. III, twenty-six statutes were passed in relation to the extension of time for the enrolment of deeds and wills “made by papists,” and the relief of ““Protestant” purchasers, devisees, and lessees. In 1791, the act 31 Geo. III, c. 32, after a preamble that “divers penalties and disabilities have been imposed on papists, * * and certain principles have been attributed to them which are dangerous to society and civil liberty, and which they are willing to disclaim,” provided that any Catholic taking certain oaths, including an oath to maintain the succession of the crown in the heirs of Sophia “being Protestants,” should not be prosecuted “for being a papist,” “or for hearing or saying Mass,” or “for teaching and instructing youth,” but no Catholic schoolmaster should “receive into his school for education the child of any Protestant father.” In some cases, conformity to the established church was added to the Protestant tests, but such conformity was not a necessary ingredient of Protestantism; Protestant non-conformists or dissenters were as trustworthy adherents of the Protestant cause as the bishops of the establishment.

*187 The courts and legal profession used the word “Protestant” in the anti-Catholic sense in which it was used by the executive and legislative branches of the government. In 1712, Lord Ch. J. PARKER said,--“The reason of the parliament in forming this design probably was, that they looked upon the landed interest to be the strength of England; for that such interests and estates in lands give great authority and influence over their particular tenants and other dependants; that it might influence elections to parliament, if papists have power to make their tenants freeholders. * * The lawmakers seem to have esteemed estates and interests in lands to be weapons, which papists, when they had them in their hands, made use of against the public and the government. * * This would be the same as if the trust had been created by a Protestant; for, if this be not an interest within the act, a papist may purchase it from a Protestant, as well as have it given him by a papist.” Roper v. Radcliffe, 9 Mod. 181, 191, 193, 199.

**159 In Ratcliffe's case, Stra. 267, five judges delivered their opinions on the question whether, after 11 & 12 W. III, c. 4, a Catholic tenant in tail could suffer a recovery to the use of himself in fee. “This is a case of very great consequence, * * as it affects the estates of multitudes of papists and Protestants who have purchased under them. * * The first and plain view of this law was to prevent the great mischief that had been experienced from the power which the moneyed men amongst the papists had of increasing their landed interest in England, and consequently of investing themselves with a large share of power and influence in the country. * * It was the intent of the statute in general to prevent the acquisition of estates by the papist; and, therefore, if there is a deficiency of any words which might directly comprehend them, we may supply it for that purpose. Thus I take a devise to be within the statute. * * But I can go no further. * * If we should attempt to carry it further, the mischief aimed at will not be prevented, but increased. * * The effect of such a construction will be to fix a perpetuity to the estates of all the papists in England, and, instead of removing by degrees all the landed interest out of popish into Protestant hands, it will tend to keep it entirely amongst the Roman Catholics; for, to make a papist incapable of suffering a recovery, equally hinders the sale to a Protestant or a papist. * * But, say they, * * are not you giving a papist tenant in tail in possession a power to bar a Protestant remainder-man? and does not this tend to keep the land among the papists, instead of drawing it to the Protestants?” Opinion of Baron PAGE. “The statute does not * * restrain a papist from suffering a recovery to the use of a Protestant. But whether it intended to take away this power when it is to be used for the benefit of a papist, is the question. * * Another objection has been made, that to destroy this recovery * * would be dangerous to many Protestant purchasers who have come in under such titles. But * * it is now removed by the statute 3 Geo., cap. 18, which secures Protestant purchasers * * by enacting ‘that no purchases, made or hereafter to be made by Protestants *188 of papists, shall be impeached on account of any disability the papists were laid under.’ * * 1. To establish this recovery is to give papists a power of cutting off Protestant remainder-men, and, so far, taking away the very landed interest of Protestants. 2. They will be able by this means to turn the course of descent, as it shall serve the purpose of removing the estate out of a Protestant into a popish line. 3. They will have a power of making themselves tenants in fee, and, upon occasion, to distribute freeholds in a county, and influence the state of our legislature by the votes they make at their election.” Opinion of Mr. Justice FORTESCUE. And the terms “Protestant” and “papist” were employed in the same manner by the other judges.

**160 In Thornby v. Fleetwood, Stra. 318, counsel discussed the statute 3 Jac. I, c. 5, which provides that “the next of his or her Kinne which shall be no Popishe Recusant shall have and enjoy the saide” real estate. Counsel for plaintiffs said,--“When, by the statute of 3 Jac., they disabled an offender against that statute from enjoying any estate, they immediately directed the next Protestant of kin to take the profits.” And counsel for the defendant said,--“3 Jac. does not introduce any new law when it speaks of the profits, but only directs the application of them to the next Protestant of kin.”

In Smith v. Read, 1 Atk. 526, Lord Chancellor HARDWICKE said,--“If this plea was not allowed it would affect numberless inheritances, and Protestants more than papists.” In Farrell v. Crosbie, Wallis & Lyne 154, 158, 162, decided in 1773, the Lord Chancellor of Ireland said,--“The first issue which by the decree was ordered to be tried was, what religion John Cahill the elder was of upon the 20th day of January, 1756, and before and after. The true question to be resolved by the trial upon that issue was, whether this John Cahill was or was not a Protestant. * * The verdict returned to the court upon this issue was, that John Cahill was not a Protestant; * * and that fully answers the doubt of the then Chancellor arising upon * * the facts stated in the pleas. By these it appears that the real merits of the case were, whether John Cahill the elder was a Protestant or a papist. * * The jury found that John the elder was a papist.” In Moore v. Butler, 2 Sch. & L. 250, 259, 260, which arose on the Irish statutes, 2 Anne, c. 6, and 8 Anne, c. 3, and was decided in 1805, Lord Chancellor REDESDALE said,--“The purpose of the first of these acts was to disable papists from purchasing lands in future, and to make all land of which any papist was or should be seized * * of the nature of gavelkind; * * and in case of conformity of the eldest son, the act reduced the father to the condition of tenant for life, and gave the inheritance to the conforming son. * * It was conceived that the first act was evaded in consequence of those, who had a right to avail themselves of it, not doing so. The second act, therefore, gives a right to any Protestant to avail himself of the former act for his own benefit, and to file a bill for a discovery of all trusts or purchases made by or on behalf of papists, * * and to take the benefit of the same as if made to or for such Protestant discoverer. * * To evade these *189 restrictive laws, contrivances were used which perplexed almost every title, and made every Protestant insecure in the possession of lands derived through a papist.” “In consequence of the acts of Queen Anne, if any conveyance were made of an estate to a papist, into whatever hands the estate might afterwards come the title was always in peril from a Protestant discoverer; and the titles of many persons, Protestants as well as papists, were liable to be thus impeached. * * If a Protestant discoverer held in trust for a papist, the estate was again subject to discovery, and might be decreed to a new claimant; but not so if he held in trust for a Protestant.” O'Gorman v. Comyn, 2 Sch. & L. 137.

**161 In Petre v. Auckland, 2 B. & P. 139, 144, 148, 149, Matlem v. Bingloe, 2 Comyn 570, Hill v. Filkin, 2 P. Wms. 3, 6-13, Carteret v. Carteret, Id. 132, and in a great number of English cases, the word “Protestant” is so used as clearly to show that it means “anti-Catholic,” and no more. An act of parliament, in 1698, mitigating the ancient penalty attached to the crime of Unitarianism, declared Unitarianism to be blasphemous, impious, contrary to the doctrines and principles of the Christian religion, and greatly tending to the dishonor of Almighty God; but Unitarians, though punished as blasphemous and impious criminals, whose ministers were held not to be “Godly preachers of Christ's Holy Gospel,” were Protestants nevertheless. Attorney-General v. Shore, 9 Cl. & Fin. 499; 11 Simons 615, 630, 639. Shrewsbury v. Scatt, 6 C. B. (N. S.) 1-222, is a case arising upon the private act, 6 Geo. I, c. 29, confirming a family settlement of the earl of Shrewsbury. The eighth section of the act,--pp. 71, 116,--contains the proviso that neither the first nor any other son or sons of certain persons, nor certain other heirs male of certain persons, who shall, within six months after he or they shall attain the age of eighteen years, take the oaths appointed by 1 W. & M., c. 8, to be taken instead of the oaths of supremacy and allegiance, and also subscribe the declaration against transubstantiation, “and who shall from thenceforth continue a Protestant until he or they shall attain the age of twenty-one years, shall, after he or they shall attain the said age, and while he or they continue Protestants, be disabled from” conveying any of “the premises hereby settled.” The heirs referred to could not “continue Protestants,” unless they were Protestants at the point of time when they began to continue: the test of their being at that point of time Protestants, in the legal sense, was their taking the oaths and subscribing the declaration. The proviso was a recognition (by the legislature and the judges consulted when the bill was considered by the committee of the House of Lords, pp. 61-64, 79, 99, 103-105) of those who could take the oaths, including the declaration, as Protestants in the legal sense. The entire report of the case is a clear illustration of the negative, anti-Catholic meaning of the word “Protestant,” when used for legal purposes. Chief Justice COCKBURN said,--p. 175,--“Then was introduced this proviso upon the enactment prohibiting alienation, viz., that the tenants in tail should have * * the power of aliening the estates, if they *190 would take the oaths which in those days were the test of adherence to the Protestant faith.”

It was enacted here, in 1701, that “No person serving as a justice, juror, witness, or otherwise, shall be required to use any other ceremony in taking of their respective oaths than lifting up the hand, as hath been accustomed.” N. H. Prov. Laws 1771, p. 26. Jews and others, whose consciences would not allow them to swear “upon the true faith of a Christian,” were prevented from taking some English oaths containing those words. But those words were not in the oath of supremacy, the declaration against transubstantiation, or the test oaths adopted at the English revolution by 1 W. & M., c. 1 and 8. From that revolution to the 13 Wm. III, no oath was required that would exclude Jews from parliament. The oath of supremacy, the declaration against transubstantiation, and the oaths of the Protestant revolution of 1688, were Protestant tests. To exclude Jews, something more than a Protestant test was necessary. They were excluded when something of a technical Christian character, such as a Christian sacrament, or an acceptance of a Christian faith in a theological sense, as the ground of the obligation of an oath, was added to the legal sense of a Protestant test. Miller v. Salomon, 7 W. H. & G. 475; 8 id. 778; L. & C. R. Co. v. Heaton, 8 E. & B. 952. In 1783, the people of New Hampshire not only did not make any such addition, but, in their copy of the Massachusetts official oath, they struck out the declaration of belief in “the Christian religion” and “firm persuasion of its truth,” thereby distinctly signifying their intent not to exclude from Protestant office those who do not accept Christianity as a positive system of theology. The signification of Protestantism in oaths, state papers, public documents, statutes, charters, commissions, and judicial decisions, has prevailed in common speech and popular usage. 1 Hallam Const. Hist. Eng. 106 (11th Eng. ed.); 2 May Const. Hist. Eng. 318-321, 327, 499 (Am. ed. 1865); Echard Hist. Eng. 483, 493, 494, 890, 897, 898, 950; 4 Hume Hist. Eng. 182, 183, 199, 203, 253 (Am. ed. 1850); 5 id. 8, 9, 147, 178, 184, 187, 419, 467; 6 id. 334; 2 Macaulay Hist. Eng. 91, 93, 101, 118, 163, 359, 364, 392, 448, 457 (N. Y. ed. 1849); 3 id. 64, 107, 130, 179, 190, 191-194; 5 id. 248, 251; 12 Lingard Hist. Eng. 268; 1 Martineau Hist. Eng. 375, 385, 437, 504, 506; 3 Burnet Hist. Own Times 326; 3 Burke's Works 431-446 (1st Am. ed.); 2 Camp. Ch. Justices 9; Macaulay Essays 1, 69, 153, 303, 312 (Am. ed. 1847); Sydney Smith Essays 5, 63, 64, 260, 261, 433, 434, 441-443, 472, 474-476 (Am. ed. 1848); Eng. Ann. Register 1780, Protestant Riots; Id. 1850, pp. 198, 200; 2 Life of Lord Eldon 40, 41, 439, 444; 1 Elliott Hist. N. E. 228; 9 Bancroft Hist. U. S. 272, 275, 278, 317, 318, 499; John Wilson Essays 180 (Phil. ed.); Jardine Gunpowder Plot 17, 79, 142, 145, 172, 304; 10 Camp. Lives Ld. Ch. 88. “‘Sir William Petre had been secretary of state under Henry and his three children;’ that is to say, issuing warrants for the persecution of papists and Protestants under Henry, of Catholics under Edward, of Protestants under Mary, and of papists once more under Elizabeth.” *191 3 Reeves Hist. Eng. Law (by Finlason) 509, note b. “For the sake of his ambition, he [Shaftesbury] would have been ready to prosecute Catholics or Protestants with indiscriminate zeal.” 4 Camp. Lives Ld. Ch. 170. In the panic raised by the “popish plot” of 1678, Shaftesbury “suggested to the Londoners to prepare for the defence of the city, as if a foreign enemy were at its gates; and he was supposed to have suggested to Sir Thomas Player, the chamberlain, the noted saying, ‘that were it not for these precautions, all the Protestant citizens might rise next morning with their throats cut.” 4 Camp. Lives Ld. Ch. 197. When Lord CAMPBELL speaks of the outrages committed in Lord George Gordon's riots in 1780 as “having proceeded entirely from Protestant fanaticism,”--8 Camp. Lives Ld. Ch. 45,--he does not mean to describe the fanaticism as of a positive theological character, or to suggest that the rioters assented to the truth of the Christian religion as taught in the New Testament, or that their Protestant religion was anything more than the religion of non-Catholics. The sixty thousand members of the Protestant association, who went up to the House of Commons with the cry of “no popery” to present the “monster petition” against the toleration of Catholics (three years before the adoption of our state constitution), were all Protestants; and so were those engaged in the Protestant riots; but large numbers of them had no religion except hatred of Catholicism.

**162 One clause of the “declaration against popery,” required by 30 Charles II, st. 2, c. 1, was, that the declaration was made “in the plain and ordinary sense of the words read unto me, as they are commonly understood by English Protestants, without any evasion, equivocation, or mental reservation whatsoever, and without any dispensation,” etc. “There [in the decree of the council of Lateran] all secular lords and princes, higher and lower, are injoined to root all Heretics out of their territories. * * The reward of their merit who will engage thoroughly in this blessed work, for the utter exterminating of Heretics [Protestants] everywhere, is no less than pardon of all sins, and a greater measure of glory in Heaven. So that our Papists may not only skip clear over purgatory, and jump up into Heaven immediately, but obtain a more glorious crown there than others, by doing such barbarous execution upon Protestants.” 7 How. St. Tr. 562, 563. Such language does not convey the idea that those heretics (alias Protestants) who rejected Christianity as a system of theology, or those who were in a state of theological destitution, were to be spared. Such language shows the idea of Protestantism as expressed in popular and legal speech; and it also shows why non-Catholics, of every form of theological belief, unbelief, and absence of belief, who entertained the ancient Protestant opinion of Catholics, were equally filled with Protestant frenzy. The great body of English people have long been anti-Catholic; but formerly the word ““anti-Catholic” was not in common use; “Protestant” was as familiar and habitual a designation of the anti-Catholic party, as “papist” was of the Catholic party.

John Adams wrote in his diary, under date of May 23, 1779, “There *192 are many Protestants here (in France) who believe nothing; they are atheists.” 3 Adams's Works 209. In 1786, Judge DANA of the supreme court of Massachusetts charged a jury, in an important case, that the constitutional provision in relation to “public Protestant teachers” “meant teachers of any persuasion whatever, Jew or Mohammedan.” 1 Amory's Life of James Sullivan 185. Chief Justice SMITH, who voted in the constitutional convention of 1791 to expunge the Protestant test, was of opinion that it was merely an anti-Catholic test, as is evident from an address delivered by him at Exeter in 1838. 6 N. H. Hist. Coll. 203.

The French wars, and the universal use of such books as the illustrated editions of Fox's Book of Martyrs, tended to keep alive, among all classes of New Hampshire colonists, the violent antipathy to Catholics that came with every immigrant. Belk. Hist. N. H. (ed. 1862), pp. 120, 137, 199, 200, 206, 272; Drake's Indian Captivities 77; Charlevoix Hist. N. France (ed. 1774), pp. 383, 384; Hutch. Coll. 131; 1 N. H. Hist. Coll. 17, 31, 44, 51, 108; 4 id. 251; 8 id. 405-426, 442. In 1776, the Protestantism of these colonies was found to be an obstacle in the way of enlisting the Catholic province of Canada in the struggle for American independence. 2 Garneau Hist. Canada 120, 148, 149, 150.

**163 The commission of the last provincial governor of New Hampshire, dated in 1766, required him and the council and the general assembly to take the oath to maintain the succession of the crown in the heirs of Sophia “being Protestants,” and the other oaths of 1 Geo. I, st. 2, c. 13, and to make and subscribe the declaration against transubstantiation, according to the test act of 1673, “Intitled An Act for preventing Dangers which may happen from Popish Recusants;” and authorized the governor in person, or by officers to be appointed by him in that behalf, to administer the same oaths to any person in the province, and to administer said declaration unto such persons belonging to the courts as should be obliged to take the same. Prov. Laws 1771, p. 7. The phrase, “succession of the crown in the Heirs of the late Princess Sophia being Protestants,” occurs five times in the commission; the title of the test act occurs once; and the “declaration” required by that act occurs four times. The governor served under this commission until the beginning of the revolution in 1775. The charter of Dartmouth college (1769) required all officers “appointed for the publick instruction and government of said College,” to take the oath to maintain the succession of the crown in the heirs of Sophia “being Protestants.” A constitution proposed in 1779, containing the Protestant test,--4 N. H. Hist. Coll. 157,--was rejected by the people not because of any objection to the test.

Among those who voted for the constitution with its Protestant test, in 1783, were many former members of the provincial legislature and others, including probably nearly all the leading men of the day, who had necessarily taken the abjuration of the supremacy of the pope, the oath to maintain the Protestant succession, and the declaration *193 against transubstantiation. And although their provincial official oaths terminated with provincial office, they approved of the purpose and spirit of those oaths, and continued to carry them into governmental action. They no longer maintained the succession of the crown in the heirs of Sophia “being Protestants;” but they maintain the succession of a Protestant elective government by legal language with which their colonial experience had made them familiar. In that language the word ““Protestants,” and various words signifying “Roman Catholics,” had always been so associated that the dividing line was equally well indicated by either form of expression. When the former was employed as a term of limitation, it excluded no other persons than those designated by any word descriptive of the latter. The provincial Protestant test retained by the people of New Hampshire in their state government was one under some form of which they and their fathers had lived, here and in the old country, since the accession of Elizabeth; they transcribed an old customary term, which, by long use in all branches of the government, had acquired the fixed and definite legal signification of an anti-Catholic test and no other; they followed the form of the act of parliament establishing the succession of the British throne, which many of them had sworn officially to maintain in the heirs of Sophia “being Protestants.” That limitation was universally understood, in England and America, to be as purely an anti-Catholic test, as the oath of supremacy, or the declaration against transubstantiation.

**164 The Protestant test of 1868 is the Protestant test of 1783. The Protestant test of 1783 is an historical fact, to be determined by historical evidence, of which the court takes judicial notice. The historical fact is, that the religion of Protestants, as a legal test, is the religion of non-Catholics.

The meaning of a constitutional or statutory provision is often shown by the nature of the danger which was apprehended, and against which the legal barrier was supposed to be necessary. 1 N. H. 272; 17 N. H. 63; 22 N. H. 468, 471; 44 N. H. 374; 45 N. H. 220, 221; 46 N. H. 124; 14 Ohio St. 80, 87; 4 Wheat. 629; Cooley Const. Lim. 65; Lyde v. Barnard, 1 M. & W. 101, 114; Miller v. Salomons, 7 W. H. & G. 475, 522. “The mischiefs intended to be remedied are the rule whereby acts of parliament are to be expounded.” Roper v. Radcliffe, 9 Mod. 204; Co. Lit. 381, b.

When, by the act of 1777, which recited that “the public enemy” “threatened an invasion of this state,” the committee of safety were authorized to arrest and imprison “any Person whom the said Committee of Safety shall deem the Safety of the Common Wealth requires should be restrained of his personal Liberty, or whose enlargement within this state is dangerous thereto,” the persons to be restrained of their liberty were designated by the general purpose of the law, shown by the history of the time; from which it appears that “the public enemy” was Great Britain, and that the dangerous persons to be taken into *194 custody were tories, and not persons infected with heresy or contagious disease, whose enlargement within the state might be a public danger greater than toryism. The statute, interpreted as it should be by the supposed necessities of public safety upon which it was known to be founded, would authorize the seizure and detention of those only whose confinement would tend to avert, not moral, theological, or pestilential danger, but the particular kind of political mischief which the statute was designed to suppress. And if the committee of safety had arrested and imprisoned an advocate of deism, Unitarianism, or some antiscriptural science, on the ground of his being a dangerous person propagating an infidelity that would put many souls in peril of perdition and expose the state to divine wrath, they would have been liable in trespass for assault and battery. Their action would have been authorized by the letter, but not by the meaning and legal construction of the statute. So the supposed danger against which the Protestant tests of England and America were erected was not deism, nor theism, nor any form of unbelief; or denial of any system of non-Catholic Christian theology, but Catholicism alone,--and Catholicism, not as a system of theology, but as an alleged system of political principles, in which the fidelity of the citizen to the state was believed by non Catholics to be subordinated to the supremacy of the pope in all secular affairs,--a system supposed to include a papal power of deposing all princes, overturning all governments, discharging Catholics from their civil allegiance, combining them in the support of arbitrary power, inspiring them with a malignant, murderous, and implacable enmity towards every Protestant nation, and holding them in a constant conspiracy against the peace and liberty of every Protestant community in which they lived. It is not the duty of courts, in their official capacity, to express or entertain the opinion that this view of Catholicism was true, or that it was false; but the fact that this was the Protestant view is a matter of history, very material in this case. It is our duty to search for the reason that induced the people of New Hampshire, in 1783, to retain the Protestant test in their constitution; and very little investigation is needed to ascertain that the hereditary design of the test was to exclude Catholics and no others. Catholic and Protestant nations have changed or are changing their faith and their practice in regard to tests; but the Protestant test of New Hampshire is to be read in the light of the last century, as a proscriptive custom transmitted from earlier times, produced and perpetuated by a particular historical motive in which there is no trace of theology.

**165 “As to papists, what has been said of the Protestant dissenters would hold equally strong for a general toleration of them, provided their separation was founded only upon difference of opinion in religion, and their principles did not also extend to a subversion of civil government. If once they could be brought to renounce the supremacy of the pope, they might quietly enjoy their seven sacraments, their purgatory and auricular confession, their worship of relics and images, nay, even their transubstantiation; but, while they acknowledge a foreign *195 power superior to the sovereignty of the kingdom, they cannot complain if the laws of that kingdom will not treat them upon the footing of good subjects.” 4 Bl. Com. 55. After a short summary of the penal laws against Catholics, Blackstone adds,--“They are rather to be accounted for from their history and the urgency of the times which produced them, than to be approved (upon a cool review) as a standing system of law. The restless machinations of the Jesuits during the reign of Elizabeth, the turbulence and uneasiness of the papists under the new religious establishment, and the boldness of their hopes and wishes for the succession of the Queen of Scots, obliged the parliament to counteract so dangerous a spirit by laws of a great and then perhaps necessary severity. The powder treason in the succeeding reign struck a panic into James I. * * The intrigues of Queen Henrietta, in the reign of Charles I, the prospect of a popish successor in that of Charles II, the assassination plot in the reign of King William, and the avowed claim of a popish pretender to the crown in that and subsequent reigns, will account for the extension of these penalties at those several periods of our history. But, if a time shall ever arrive, and perhaps it is not very distant, when all fears of a pretender shall have vanished, and the power and influence of the pope shall become feeble, ridiculous, and despicable, not only in England but in every country of Europe, it probably would not then be amiss to review and soften these rigorous edicts,--at least till the civil principles of the Roman Catholics called again upon the legislature to renew them. * * This hath partly been done by statute, 18 Geo. III, c. 60, with regard to such papists as duly take the oath therein prescribed of allegiance to his majesty, abjuration of the pretender, renunciation of the pope's civil power, and abhorrence of the doctrines of destroying and not keeping faith with heretics, and deposing or murdering princes excommunicated by authority of the see of Rome.” Id. 57, 58.

In 1781, ERSKINE spoke of the restrictions imposed upon the Roman Catholic religion as “imposed not because our ancestors took upon them to pronounce that faith to be offensive to God, but because it was incompatible with good faith to man,--being utterly inconsistent with allegiance to a Protestant government, from their oaths and obligations to which it gave them not only a release, but a crown of glory, as the reward of their treachery and treason.” King v. Gordon, 21 How. St. Tr. 596. In 1810, Lord ELDON, in the House of Lords, said that “the enactments against the Catholics were meant to guard not against the abstract opinions of their religion, but against the political dangers of a faith which acknowledged a foreign supremacy.” 1 Twiss's Life of Eldon 435, 483, 501, 577-580; 9 Camp. Ld. Ch. 305. And the parliamentary debates on Catholic emancipation, during the many years that measure was in agitation, substantiate ELDON'S statement of the ground on which Protestant tests and all anti-Catholic legislation were based. In 1819, Lord Grey “introduced a bill to do away with the declaration against transubstantiation, so that Roman Catholic peers might sit in parlianent, as they had done from the reformation till the latter part of the *196 reign of Charles II. But the Lord Chancellor (ELDON) opposed the principle of the measure as most dangerous. He said that ‘the law of Charles II had been reënacted in the first parliament of William III, the founder of our civil and religious liberties. It had been thought necessary for the preservation of these that papists should not be allowed to sit in parliament, and some test was therefore necessary by which it might be ascertained whether a man was a papist or a Protestant. The only possible test for such a purpose was an oath declaratory of religious belief; and, as Dr. Paley had observed, it was perfectly just to have a religious test of a political creed. He entreated the House not to commit the crime against posterity of transmitting to them, in an impaired and insecure state, the civil and religious liberties of England.” 9 Camp. Lives Ld. Ch. 388. The Protestant test, formerly “thought necessary for the preservation of” “the civil and religious liberties” of non-Catholic states “against the political dangers” “of a political creed,” cannot be legally used for religious persecution and the destruction of the liberties it was intended to preserve.

**166 In 1821, Mr. Canning, in the House of Commons, said,--“Undoubtedly, if we look back to the times preceding the reformation, we should find that no class of society was then precluded from the political service of the state. The distinction grew up with the reformation--a transaction affecting the whole of Europe, and the policy external and internal of every state composing the European commonwealth; which changed the line of demarcation between nations, and separated each people among themselves. A Protestant and a Catholic interest grew up, which divided and classed the nations of Europe; and within each nation took place a correspondent division and classification; which had the double effect of arraying different parts of the same community against each other, and creating in each part respectively a sympathy with foreign states. Similarity of creed was brought into competition with identity of country; and in many instances * * it could not be denied the religious sentiment was too strong for the patriotic. * * He therefore did not contend * * that, at the period immediately subsequent to the reformation, those who continued attached to the church and court of Rome * * might not be justifiably excluded from political power. * * But he did contend for the fact that whatever disqualification was then imposed on the Roman Catholics by the governing power was justified on the ground of danger from foreign interference, foreign connection, and foreign alliance; and that, without one exception, that danger was stated as constituting the sole necessity for such disqualification.” And he urged that, as that danger had ceased, the disqualification ought to cease. 4 Canning's Speeches 289-291. In another speech in the same year, he asserted that it had always been made ground of charge against Catholics that their connection with a foreign power was political as well as spiritual; that they “entertained a political predilection, or acknowledged the obligation of political obedience toward a foreign power. That *197 foreign power in the earliest times of the reformation was the pope, then formidable in temporal as well as in spiritual preponderance, and arrogating supremacy over the temporal concerns of princes, which those who admitted could be but imperfect in their allegiance to their lawful sovereigns. In later times, an exiled family * * became the rival of the reigning dynasty of England. * * Concurring in the religion of the exiled family, the Roman Catholic subjects of the British crown were held also to be devoted to their political claims. The Roman Catholic was presumed to be essentially a traitor. * * It was devised to detect him by the oath of transubstantiation.” Id. 274, 275, 395.

Bishop Burnet, one of the most mild and tolerant men of his time, declared that it was certain that “all papists must at all times be ill subjects to a Protestant prince.” 3 Burnet's Hist. Own Times 253.

**167 The disloyalty of Catholics under a non-Catholic government was pointedly asserted in the English declaration of rights, which was recited and ratified in the act of settlement, 1 W. & M., sess. 2, c. 2, and which contained a list of wrongs charged upon James II, and a corresponding list of rights formally declared. One of the alleged wrongs was, “causing severall good Subjects, being Protestants, to be disarmed, at the same time when Papists were both Armed and Imployed contrary to law;” and the corresponding right asserted was, “that the Subjects which are Protestants may have Arms for their Defence.” The law violated by allowing Catholics to be armed was (3 Jac. I, c. 5) entitled “An Acte to prevent and avoid dangers which may grow by Popish Recusants,” which provided for depriving “Popish Recusants” of armor, gunpowder, and munition. By 1 W. & M., c. 15, entitled “An Act for the better securing the Government by disarming Papists and reputed Papists,” no person refusing to make the declaration against transubstantiation was allowed to have “any Arms, Weapons, Gunpowder, or Ammunition.” The difference on this subject between the bill of rights and these statutes was, that the former was the guaranty of a right to the anti-Catholic party, and the latter were denials of the same right to the Catholic party. And the alleged cause of this distinction between the two parties was frequently recited in the anti-Catholic legislation imposing oaths, tests, disabilities, and penalties. The preamble of 3 Jac. I, c. 4, was, “that many of his Majesties Subjects that adhere in their Hearts to the Popish Religion, by the infection drawne from thence and by the wicked and devilishe councell of” priests, “are soe farre perverted in the pointe of theire Loyalties and due Allegiance unto the King's Majestie and the Crowne of England, as they are readie to entertain and execute any treasonable Conspiracies and Practices.” There were Protestant dissenters whose religion was not tolerated; but they were not disarmed, because they were not accused of being “perverted in the pointe of theire Loyalties” “by the infection drawne from” their religion, or “by the wicked and devilishe councell of” their priests; because they were no more suspected of being eager to engage in insurrection or to aid invasion than *198 the most zealous members of the established church; because they could be relied upon to use their arms against the hostile movements which the Catholics were believed to be constantly plotting.

In Rex v. Guy Fawkes & a., 2 How. St. Tr. 159, 171, 174, 179, Lord COKE, then attorney-general, opening the case for the crown, said,--“The principal offenders are the seducing Jesuits;” “their studies and practices principally consist in two dd's, to wit, in deposing of kings and disposing of kingdoms;” and, after quoting Catholic writers on the subject, he continued,--“Their conclusion therefore is, that for heresy * * a prince is to be deposed and his kingdom bestowed by the pope at pleasure, and that the people, upon pain of damnation, are to take part with him whom the pope shall so constitute over them.” Upon the anti-Catholic laws of Elizabeth, he commented thus: “Concerning the execution of these laws, it is to be observed likewise, that whereas in * * the five years of Queen Mary there were cruelly put to death about three hundred persons for religion,--in all her majesty's time, by the space of forty-four years and upwards, there were, for treasonable practices, executed, in all, not thirty priests, nor above five receivers and harborers of them; and for religion not any one.” And the same common opinions of those times were repeated by him in Rex v. Garnet, 2 How. St. Tr. 217, 219-238. Garnet, in his examination before the privy council upon his participation in the gunpowder plot, was first questioned by Lord SALISBURY, whose “interrogatories were about the authority of the pope,” and who said,--“You see, Mr. Garnet, we deal not with you in matters of religion.” “The political consequences of this transaction (the gunpowder plot) were important and permanent. It fixed the timid and wavering mind of the king in his adherence to the Protestant party in opposition to the Roman Catholics; and the universal horror, which was naturally excited not only in England but throughout Europe by so barbarous an attempt, was artfully converted into an engine for the suppression of the Roman Catholic church; so that the ministers of James I, having procured the reluctant acquiescence of the king and the cordial assent of public opinion, were enabled to continue in full force the severe laws previously passed against papists, and to enact others of no less rigor and injustice. Even after the lapse of more than two centuries, the excitement of the public mind on this subject, stimulated as it has been from time to time by the occurrence of other plots real and pretended, has not wholly subsided; and in our own times, during the frequent discussions respecting the propriety of relieving Roman Catholics from civil disabilities, the gunpowder plot was repeatedly referred to as a practical proof that the doctrines of the Roman Catholic religion were inconsistent with the safety of a Protestant government.” Jardine's Narrative of the Gunpowder Plot 2, 3, 193.

**168 In Rex v. Busby, 8 How. St. Tr. 525, 529, counsel for the crown stated, in opening the case,--“The prisoner is indicted upon a statute made in the 27th Eliz., which makes it treason for any subject born to take orders from the see of Rome, and afterwards to remain in England; *199 which law I conceive was not only made for the security of the government, but also in favor of the lay papists themselves; for, though several statutes were made to keep them within the bounds of their allegiance and to secure the government from their villanous designs, yet it was experimentally found true that no dangers or penalties whatsoever could deter or hinder them from plotting against the state in order to bring us back to the slavery of Rome, whilst those juggling managers of their consciences were suffered to come amongst us.” In a letter on the penal laws against the Irish Catholics, Burke says “that no Catholick, even in the ferocious Acts of Queen Anne, was disabled from voting on account of his religion. The only conditions required for that privilege were the oaths of allegiance and abjuration--both oaths relative to a civil concern.” 3 Burke's Works 435 (1st Am. ed.).

The Catholic historian Lingard, narrating that in 1570 the pope issued a bull pronouncing Queen Elizabeth guilty of heresy, depriving her of the crown and absolving her subjects from their allegiance, states that Felton, who was executed for affixing a copy of the bull to the gate of the Bishop of London, “suffered the death of a traitor, glorying in the deed, and proclaiming himself a martyr to the papal supremacy.” 8 Lingard Hist. Eng. 47, 48. Lingard further says, in reference to a number of Catholic priests condemned in 1581, that the hesitation of six of them “to deny the deposing power (a power then indeed maintained by the greater number of divines in Catholic kingdoms) rendered their loyalty very problematical in case of an attempt to enforce the bull by any foreign power.” Id. 114.

In 1788, the Catholics having sought some relaxation of the laws, and a committee of Catholics waiting upon the prime minister of England he desired from them some authentic evidence that the dangerous political tenets imputed to them were not then held by the Catholic church; and, at his request, the following questions were sent to and answered by six of the principal Catholic universities of Europe:

“1. Has the pope, or cardinals, or any body of men, or any individual of the church of Rome, any civil authority, power, jurisdiction, or preëminence whatever within the realm of England?

2. Can the pope, or cardinals, or any body of men, or any individual of the Church of Rome, absolve, or dispense with, his majesty's subjects from their oaths of allegiance on any pretence whatever?

**169 3. Is there any principle in the tenets of the Catholic faith by which Catholics are justified in not keeping faith with heretics or other persons differing with them in religious opinions in any transaction either of a public or a private nature?”

The negative answers unanimously given are immaterial in this case; but the necessity of presenting and answering such questions, to satisfy Protestants, indicates the object of Protestant tests. Eight years after the adoption of our constitution, the Catholics of Ireland obtained, from the authority of the pope, a written disclaimer of the alleged political principles for which they had suffered more than two hundred years, and against which Protestant tests were intended to guard.

*200 In 1813, De Witt Clinton, as mayor of New York, delivering the opinion of the court of general sessions, in People v. Bradley & a., said,--“The apprehensions which have been entertained of this [the Catholic] religion have reference to the supremacy and dispensing power attributed to the bishop of Rome as head of the Catholic church.” The Catholic Question in America 112, and App. cxiii, cxvii. That such apprehensions arose from supposed allegiance to the pope, and related to secular and not to spiritual affairs, is sufficiently shown by the fact that, while Unitarian Protestants of unquestioned loyalty were condemned by the ecclesiastical courts of the Church of England, and burned as heretics, Catholic priests were tried by the civil tribunals, and hanged and quartered as traitors.

It is true that in various countries the feebler sects have often felt sure that those were unmitigated religious persecutions which were alleged by the ruling parties to be mere necessary defences of the state. But it is probable that such allegations have generally been made in perfect sincerity. There certainly have been times when the general rule was that Protestants were not peaceable subjects of Catholic governments, and when Catholics were not peaceable subjects of Protestant governments. Whether, in any instance, disloyalty was produced by persecution, or persecution by disloyalty, is a matter not involved in the present inquiry. It could not be expected that a Catholic would be an obedient and trusty subject of Elizabeth, or James I, or that a Protestant would be faithful to Philip II. But the people of New Hampshire, in 1783, retained the ancient Protestant test, not upon general philosophical speculation, but upon the current anti-Catholic opinion of that time and place,--an opinion entertained by them and their ancestors for more than two hundred years. Whether that opinion was at any time or at all times erroneous, is in this case immaterial. In the duty of interpretation, we cannot overrule the well-known historic object of the test, which was not to attach disqualifications to any theological belief, but to incapacitate the supposed disloyalty of those who acknowledged the supremacy of the sovereign pontiff. Bl. Com., Am. ed. 1773, App. 97, note, 113; 4 Reeves English Law 445; Cranmer's case, 1 How. St. Tr. 772, 798, 824; Queen v. Campion, 1 id. 1062, 1063; Queen v. Parry, 1 id. 1095; King v. Green & a., 7 id. 218, 219, 224, 225, 258; King v. Whitebread, 7 id. 322, 412, 413; King v. Langhorn, 7 id. 489, 502, 504, 520, 548, 563, 567; King v. Wakeman, 7 id. 679; King v. Ld. Geo. Gordon, 21 id. 596-598, 645, 646; King v. Crossfield, 26 id. 99; Troy v. Symonds, 29 id. 504, 506, 513, 539-542, 545; De Themmines v. De Bonneval, 5 Russ. 288; Case of the University of Oxford, 10 Rep. 53, 56; Case of St. Mary's Church, 7 S. & R. 536, 552, 553; 1 Hallam Const. Hist. Eng. 64, 134, 135, 147, 152-154, 162-166; 3 id. 179; 2 May Const. Hist. Eng. 293, 294; Echard Hist. Eng. 662; 1 Hume Hist. Eng. 295, 318, 321, 412-419; 2 id. 271, 272; 3 id. 135; 4 id. 205, 216, 217; 1 Macaulay Hist. Eng. 57, 58, 216, 223; 2 id. 6, 8, 10, 21, 22, 434; 2 Froude's Hist. Eng. 321; 10 id. 60, 253, 403, 410; 1 Martineau Hist. Eng. 375, 393; 1 Motley Hist. U. Neth. *201 27, 130; 2 id. 290, 399; 6 Alison Hist. 379; Locke's First Letter on Toleration; Macaulay's Essays 69, 304; Sydney Smith's Essays 366, 367; Baird's Religion in Am. 543; Draper's Int. D. Europe 338, 339, 446; 3 Canning's Speeches 307, 309, 312, 318, 331; 1 Guizot Hist. Civilization 123, 124; 3 id. 140, 141; 10 Works of John Adams 398.

**170 Designed to secure civil loyalty and civil allegiance to the state, and to exclude nothing but the alleged civil loyalty and civil allegiance of Catholics to the foreign papal power, the test is a purely political and civil measure. It never had any theological or spiritual significance or purpose. By general consent, it has now become obsolete and nugatory as to Catholics, whom alone it was intended to disable. To revive it against them, in its genuine character, for the purposes of loyalty and allegiance, as a security formerly supposed to be necessary in incessant contests with the papal power, would, in this age, be extraordinary; to revive it, not against them, but for the oppression of a different class, against whom it was never designed to operate,--not resuscitating it as the political test it was during the period of its vitality, but remodelling it into a theological test and engine of religious persecution, and bringing it to life in that unconstitutional form-- that is something freemen are not taught patiently to endure.

The true rule of construction was followed by the King's Bench in Foone v. Blount, Cowp. 464, where the question was, “whether a creditor who is a papist is entitled to receive his debt out of the money which has arisen by sale of the testatrix' real estate, according to the appointment of her will.” For the plaintiff, it was argued that the will conveyed no interest in real estate to the creditors, and that “the creditors, Roman Catholics or Protestants,” should be paid. For the defendant, it was argued that the law “in terms excluded Roman Catholics from any possible interest or profit arising out of land.” Lord MANSFIELD, delivering the opinion of the court in 1776, said,--“The statutes against papists were thought, when they passed, necessary to the safety of the state. * * But from the nature of these laws, they are not to be carried by inference beyond what the political reasons which gave rise to them require. The political object the legislature had in view was to take off from the Roman Catholics that weight and influence which is naturally connected with landed property beyond what personal estate can give.” And it was held that the Catholic creditors should be paid because such payment was not prohibited by the political reasons and policy of the law. And the same rule of construction being applied in the present case, the defendant Abbott is not disabled, by the political reasons and policy of the Protestant test, to be a public teacher of an incorporated parish. Theism is not one of the mischiefs intended to be remedied by the test. “By the infection drawne from” that faith, he cannot be classed with those who, at the date of the constitution and for two centuries before, were regarded by non-Catholics as inevitably “perverted in the pointe of theire Loyalties” to a non-Catholic government. The nature of the danger which the test was intended to avert shows that Abbott is a *202 Protestant in the meaning of the constitution. The historic reasons of state, upon which the disqualification was founded, demonstrate the religion of Protestants, as a legal test, to be the religion of non-Catholics.

**171 The common law, so far as it is adapted to our institutions and circumstances, and not repugnant to the rights and liberties contained in the constitution, remains in force until altered and repealed by the legislature. Constitution of N. H., Part II, art. 90; Lisbon v. Lyman, 49 N. H. 582. If religious inequality, operating in any way to the disadvantage of deists or theists, had been a rule of the common law, it would not be in force here, because it would be inconsistent with free institutions. But it is not a rule of the common law. In that system of jurisprudence there is nothing that gives Trinitarians or Unitarians, on account of the legal superiority of their religion, any advantage over a deist or theist in a court of justice. By the common law adopted in the constitution, or the constitution interpreted by common law analogies, Abbott is not disabled.

Christianity, in the sense of a system of theology miraculously revealed, and distinguished from natural religion, is not the basis nor any part of the common law. “Reason is the life of the law; nay, the common law itself is nothing else but reason; which is to be understood of an artificial perfection of reason, gotten by long study, observation, and experience, and not of every man's natural reason. * * This legal reason est summa ratio.” The common law ““““““““is the perfection of reason.” Co. Lit. 97, b. “Nothing is law that is not reason.” Coggs v. Bernard, Ld. Raym. 909, 911. And whatever may be the definition of legal reason, it certainly does not include miraculous revelation. What is true in law, and what is substantial and essential in legal principle, the court are authorized to decide. But, as was said in The Dublin case, 38 N. H. 510, 563, “what is theologically true in religion it is agreed on all hands that the court are not competent to decide; nor have they power to determine what is really and intrinsically substantial and essential in matters of doctrine.” Burr v. First Parish in Sandwich, 9 Mass. 298; Field v. Field, 9 Wend. 401; Miller v. Gable, 2 Denio 517. The court are authorized to determine all the principles of the common law in force in this state; the court are not authorized to determine a single principle of Christianity; therefore, in contemplation of law, the principles of Christianity are no part of the principles of the common law. If Christianity were in any sense, theoretically or practically, a part of the common law of New Hampshire, it would be the right and duty of this court to decide what Christianity is, and to enforce it as law, and as other laws are enforced, by the whole power of the state placed in our hands for the purpose. That would be law, which a majority of the court (if a majority could agree on the subject) should hold to be “theologically true in religion.” At one time Trinitarianism would be law; at another, Unitarianism; today, Methodism; to-morrow, Catholicism. If the court should go back to 1783 for a standard, they must choose between Quakerism, Calvinism, *203 Universalism, and other religions. If they resorted to the earliest technically Christian period of the common law, they would adopt ancient Catholicism with the scientific doctrines of the theology of that age. Whatever theological law, permanent or fluctuating, were established, it would be enforced by the court, not only upon Mr. Abbott, but upon the whole population of the state; for the common law is uniform in its operation, and exempts no privileged classes. Without adopting a system of theology as law, Mr. Abbott could not be persecuted at common law: nothing but his theology is complained of as unlawful.

**172 The profession and dissemination of all theological doctrines are equally lawful at common law. The sensibilities, feelings, and opinions of the community are protected from malicious outrages calculated to excite disorder and breaches of the peace;--blasphemy, a malicious attack upon the common religion of the country, is an outrage of that kind;--a weekly rest is deemed expedient, and the privilege of undisturbed worship is secured on the day set apart for the purpose by the prevailing religion. But it cannot be argued that a particular system of theology is established as law, by a mere effort to preserve peace and order through police regulations adapted to the actual condition of the people by whom that theology is, in fact, generally accepted. “The duty (of observing the Sabbath) arises solely from our relations to God, and not from our relations to man. Now, our duties to God are never to be placed within the control of human legislation. If the civil magistrate has a right to take cognizance of this duty to God, he has a right to take cognizance of every other. And if he has a right to take cognizance of the duty, he has a right to prescribe in what manner it shall be discharged; or, if he see fit, to forbid the observance of it altogether. The concession of this right would, therefore, lead to direct interference with liberty of conscience. * * It is, however, the duty of the civil magistrate to protect every individual in the undisturbed right of worshipping God as he pleases. This protection every individual has a right to claim, and society is under obligation to extend it. And, also, as this is a leisure day, and is liable to various abuses, the magistrate has a right to prevent any modes of gratification which would tend to disturb the peace of society. This right is acknowledged in regulations respecting other days of leisure or rejoicing; and there can be no reason why it should not be exercised in respect to the Sabbath.” Wayland's Moral Science 190, 191 (11th ed.).

It is an indictable offence at common law maliciously to disturb a grave, because it is an outrage upon prevalent ideas of decency, and because it is calculated to produce a breach of the peace; but no one would think of claiming that therefore the popular theory in regard to corporeal resurrection is established as law, or as any more lawful than any other theory on that subject. The term “malice,” which expresses the gist of blasphemy, murder, and some other offences, is a familiar, technical, legal term of settled and definite meaning, well understood by the legal profession. In blasphemy, it imports an ill-bred and *204 malevolent disposition to cause annoyance, irritation, and such an injury to the feelings, by gross and indecent insult and indignity, as is a ground of damages in civil suits. It is lawful to controvert any theological system, to advocate or refute any theological opinion. The law of blasphemy does not limit the religious freedom of speaking, writing, and printing within the bounds of the true faith; it does not presume to know where those bounds are, or what the true faith is; but it considers mental and moral as well as physical sensibilities entitled to some protection against wanton assault and malicious mischief, and therefore it requires that attacks made upon certain popular sentiments, as to which the community is peculiarly sensitive, should be conducted with some limitations of good faith (bonæ fidei, not veræ fidei), and not for the mere malicious purpose of inflicting pain. In the case of seditious libel, Rex v. Burdett, 4 B. & Ald. 95, 131, 132, it was held that the question was, “whether the paper contained a sober address to the reason of mankind, or whether it was an appeal to their passions, calculated to incite them to acts of violence and outrage;” “that every man ought to be permitted to instruct his fellow subjects; that every man may fearlessly advance any new doctrines, provided he does so with proper respect to the religion and government of the country.” And malice, in this technical, legal sense, is a fact to be found by the jury upon the evidence, and not a matter of law to be found by the court. Emlyn's Preface to How., St. Tr., pp. xxx, xxxi. The English courts have invaded the province of the jury at this point, as well as at other points; but this court has signified that it is not engaged in that invasion; the practice and decisions by which the English courts substantially abolished the common law in relation to criminal malice are errors which have here been rectified. State v. Bartlett, 43 N. H. 224, 230-234.

**173 “It never was a crime, at the common law, seriously and conscientiously to discuss theological and religious topics.” Updegraph v. Com., 11 S. & R. 394, 403. The court, in that case, affirm “that no author or printer, who fairly and conscientiously promulgates the opinions with whose truths he is impressed for the benefit of others, is answerable as a criminal; that a malicious and mischievous intention is, in such a case, the broad boundary between right and wrong; and that it is to be collected from the offensive levity, scurrilous and opprobrious language, and other circumstances, whether the act of the party was malicious;” that “no man ever suffered at common law for any heresy;” that “no preference is given by law to any particular religious persuasion; protection is given to all by our laws; it is only the malicious reviler of Christianity who is punished;” and that “if, from a regard to decency and the good order of society, profane swearing, breach of the Sabbath, and blasphemy are punishable by civil magistrates, these are not punished as sins or offences against God.” Bishop Warburton's Alliance, Book I, ch. 4, pp. 33, 34, 4th ed. In People v. Ruggles, 8 Johns. 290, 294, 295, it was held, Ch. J. KENT delivering the opinion, that “The free, equal, and undisturbed *205 enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community, is an abuse of that right,” and “a gross violation of decency and good order.” In the New York constitutional convention of 1821, Mr. Root asserted that, in People v. Ruggles, “it had been declared that Christianity was a part of the law of the land.” But KENT, who was a member of the convention, replied that Mr. Root “had not stated correctly the decision of the supreme court which he arraigned. The court had never declared or adjudged that Christianity was a religion established by law. They had only decided that to revile the author of Christianity in a blasphemous manner, and with a malicious intent,” was indictable as an outrage upon public decency and decorum, tending to disturb the peace,--“not because Christianity was established by law, but because Christianity was in fact the religion of this country. * * The court never intended to interfere with any religious creeds or sects, or with religious discussions.” Martin Van Buren expressed the opinion that the Christian religion was not a part of the law of the land; and KENT said that Mr. Van Buren “had given what he thought the just exposition of the case of the People v. Ruggles, in VIIIth Johnson's Reports. He never intended to declare Christianity the legal religion of the state, because that would be considering Christianity as the established religion, and make it a civil or political institution. The constitution had declared that there was to be no discrimination or preference in religious profession or worship. But Christianity was, in fact, the religion of the people of this state, and that fact was the principle of the decision. * * The legislature had repeatedly recognized the Christian religion, not as the religion of the country established by law, but as being in truth the actual religion of the people of this state.” “The Bible itself had never been established as constituting a portion of our laws. * * A person could not be arraigned for expressing the most skeptical opinions, provided it was done in a decent manner.” Debates of N. Y. Convention of 1821, pp. 462, 463, 574, 575, 576.

**174 In Massachusetts, where the common-law offence of blasphemy was prohibited by statute, it was held, in Com. v. Kneeland, 20 Pick. 206, 220, 221, that “the word ‘wilfully,’ in the ordinary sense in which it is used in statutes, means not merely ‘voluntarily,’ but with a bad purpose. * * It does not prohibit the fullest inquiry and the freest discussion for all honest and fair purposes. * * Understanding the statute against blasphemy as we do, and as we have already explained it, that it is not intended to prevent or restrain the formation of any opinions or the profession of any religious sentiments whatever, but to restrain and punish acts which have a tendency to disturb the public peace, it is not repugnant to, but entirely consistent with,” the constitutional guaranty of religious freedom. The same views are expressed in State v. Chandler, 2 Harring. 553, where it is said that every one who outrages decency so far as to incite others to a breach of the *206 peace, is indictable at common law. In these cases, legal, technical malice is held to be as much the gist of blasphemy, as it is the gist of murder; and it is settled by these and other authorities that Christianity is no part of the common law of this country. Bloom v. Richards, 2 Ohio St. 387; McGatrick v. Wasson, 4 Ohio St. 566; Specht v. Com., 8 Barr. 312; Lindenmuller v. People, 3 Barb. 548; Williams v. Williams, 4 Seld. 526, 553; Cooley Const. Lim. 467-474; Stephens Criminal Law 90.

“The maxim, that Christianity is part and parcel of the common law, has been frequently repeated by judges and text writers, but few have chosen to examine its truth or attempt to explain its meaning. We have, however, the high authority of Lord MANSFIELD, and of his successor, the present chief justice of the Queen's Bench, Lord CAMPBELL,--Campbell's Lives of Chief Justices, vol. 2, p. 513,--for stating, as its true and only sense, that the law will not permit the essential truths of revealed religion to be ridiculed and reviled. In other words, blasphemy is an indictable offence at common law. The truth of the maxim, in this very partial and limited sense, may be admitted. But if we attempt to extend its application, we shall find ourselves obliged to confess that it is unmeaning or untrue. If Christianity is a municipal law, in the proper sense of the term, as it must be if a part of the common law, every person is liable to be punished by the civil power, who refuses to embrace its doctrines and follow its precepts; and if it must be conceded that in this sense the maxim is untrue, it ceases to be intelligible, since a law without a sanction is an absurdity in logic and a nullity in fact.” Andrew v. N. Y. B. & P. B. Society, 4 Sandf. 156.

**175 Webster's argument in Vidal v. Girard's Executors,--2 How. U. S. 127; 6 Webster's Works 133,--was a powerful appeal in behalf of the Christian ministry and religious education; but, as a legal argument in support of the proposition that Christianity is part of the law of the land, it was not successful. Judge STORY, delivering the opinion of the court sustaining the provision of Girard's will, which was contested on religious grounds, used the following language: “It is also said, and truly, that the Christian religion is a part of the common law of Pennsylvania. But this proposition is to be received with its appropriate qualifications, and in connection with the bill of rights of that state, * * ‘all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences: no man can of right be compelled to attend, erect, or support any place of worship, or to maintain any ministry, against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience; and no preference shall ever be given by law to any religious establishments or modes of worship.’ Language more comprehensive for the complete protection of every variety of religious opinion could scarcely be used; and it must have been intended to extend equally to all sects, whether they believed in Christianity or not, and whether they were Jews or infidels. So that we are compelled to *207 admit that, although Christianity be a part of the common law of the state, yet it is so in this qualified sense, that its divine origin and truth are admitted, and therefore it is not to be maliciously and openly reviled and blasphemed against, to the annoyance of believers or the injury of the public. Such was the doctrine of the supreme court of Pennsylvania in Updegraph v. The Commonwealth, 11 Serg. & Rawle 394.”

In this case, Judge STORY endeavored to follow the practice (of the United States courts) of adopting the construction of state law, as settled by state courts. And, in Updegraph v. The Com., the judge delivering the opinion of the Pennsylvania court had said that “Christianity, general Christianity, is, and always has been, a part of the common law of Pennsylvania; Christianity, without the spiritual artillery of European countries; * * not Christianity founded on any particular religious tenets; not Christianity with an established church, and tithes, and spiritual courts, but Christianity with liberty of conscience to all men.” But it was in substance decided in Updegraph v. The Com., that Christianity is the law of Pennsylvania only in the sense explained by Chancellor KENT, that the law, for the purpose of preserving the public peace, prohibits malicious assaults upon the common sentiments of the people, including the religious opinions and feelings in fact generally entertained by them. And, to say that Christianity, in that sense, is law,--general Christianity, undefined and undefinable, without spiritual artillery, and not founded on any particular religious tenets,--is either to use language in a figurative and transcendental sense, useless for any practical purpose but mystification and deception, or to use it in no sense and for no purpose. Judge STORY, with a deferential use of the language of the state court, gave the explanation that it was to be understood only in the qualified sense that the divine origin and truth of Christianity being in fact generally admitted by the people, the public sentiment on that subject should not be maliciously assailed. This explanation was furnished by the decision in Updegraph v. The Com., and it divested of all legal meaning the phrase that Christianity is law.

**176 The propriety of that phrase was vigorously maintained at the trial of Abner Kneeland, by District-Attorney PARKER, who examined the authorities, and controverted Jefferson's view of the subject. Pamphlet Report of the Arguments in that case 49-51, 64-76; 4 Jefferson's Works 397 (vol. 6, pp. 303, 304, 311-319, ed. of 1861); Am. Jurist, Apr. 1833, p. 346; Cowan v. Milbourn, Law Rep., 2 Ex. 230; 2 Bishop Cr. Law, secs. 87-94.

The phrase has been used by the most eminent jurists of England. BLACKSTONE, quoting the words of Lord HALE, stated that blasphemy is punishable at common law, “for Christianity is part of the laws of England.” 4 Bl. Com. 59; King v. Taylor, 3 Keb. 607; Vent. 293. But he had previously demonstrated, in the same chapter, that the law is without any technically Christian foundation. “Human laws can have no concern with any but social and relative duties, being intended only to regulate the conduct of man, considered under various relations, as a member of civil society. All crimes ought therefore to be estimated *208 merely according to the mischiefs which they produce in civil society; and, of consequence, private vices, or breach of mere absolute duties which man is bound to perform considered only as an individual, are not, cannot be, the object of any municipal law any further than as, by their evil example or other pernicious effects, they may prejudice the community, and thereby become a species of public crimes. * * The vice of lying, which consists (abstractedly taken) in a criminal violation of truth, and therefore, in any shape, is derogatory from sound morality, is not, however, taken notice of by our law unless it carries with it some public inconvenience, as spreading false news; or some social injury, as slander and malicious prosecution, for which a private recompense is given. And yet drunkenness and malevolent lying are in foro conscientiæ as thoroughly criminal when they are not, as when they are, attended with public inconvenience.” 4 Bl. Com. 41. BLACKSTONE does not mean that Christianity is part of a system of common law, which, except in a few specified instances, takes no notice of malevolent lying; for such a statement, under the English practice of presuming malice, would be blasphemy. But, in view of a sectarian Christianity established by statute as the national religion, with a creed, and spiritual artillery, and temporal power; and the statute, which made it a crime for any person, educated in or having made profession of the Christian religion, to deny the Christian religion to be true, or the Holy Scriptures to be of divine authority, or to deny any one of the persons of the Holy Trinity to be God, or to maintain that there are more Gods than one,--4 Bl. Com. 44, 49,--there was a certain propriety in the remark that Christianity was part of the laws of England. For the purpose of persecuting men for their theology, it was a part of English statutes; but for the purpose of promoting common veracity, it was no part of the common law.

**177 It is not strange that Lord HALE considered Christianity, in some sense, to be a part of the laws of England; for he left on record the following opinion: “I think that at common law, and so at this day, * * if the diocesan convicts a man of heresy, and, either upon his refusal to abjure or upon a relapse, decree him to be delivered over to the secular power, and this be signified under the seal of the ordinary into the chancery, the king might, thereupon, by special warrant, command a writ de hæretico comburendo to issue.” 1 Hale P. C. 392, 405, 709; 4 Bl. Com. 97; 1 Neal's Hist. Puritans 102. If this opinion of Lord HALE is correct,--if at common law a bishop can, in this manner, send heretics to the flames,--there is no doubt that Christianity, defined as the Christianity of a bishop, is a part, and a very material part, of the common law. Such a system of ecclesiastical jurisprudence might operate as a considerable check upon the independence of courts of law, and affect the legal value of their decisions on ecclesiastical topics: but any judge, entertaining Lord HALE'S opinion of the supremacy of a sectarian church, would conclude with him that the religion of that church is law, without regard to the consequences of announcing the opposite conclusion.

*209 Although Lord HALE'S opinion of Episcopal supremacy at common law was erroneous (20 Pick. 235), it points out the origin of the remark that Christianity is part of the laws of England. Catholicism was the law of various countries when it burned Protestants; Calvinism was the law of Geneva when Calvin was personally responsible for the burning of the Unitarian Servetus; Episcopalianism was the law of England when it burned Unitarians and Baptists; puritanism was the law of Massachusetts when Williams and Wheelwright were banished, Quakers were hung, and Quaker women were scourged through the streets of this town of Dover, under a Massachusetts law. When church and state are one, the Christianity of any sect established as the religion of the state is, to some extent, the law of the land; and, so far as other sects agree with the governing party, their faith is law. The maxim, that Christianity is part of the laws of England, is a relic of the time when the clergy ruled England; when ambassadors, judges, and chief ministers of state were ecclesiastics. It is the acknowledgment of a state religion; and it is immaterial whether the religion was originally established by statute or by a perversion of the common law under a sacerdotal domination practically absolute. In either case the maxim is not common law.

The laws of England are partly of pagan, partly of Jewish origin (4 Bl. Com. 409, 410); and it is not the general understanding in England or in this country that the founder of Christianity promulgated a scheme of civil government or municipal law. The common law takes cognizance of some overt acts, words, and conduct, but not of mere intent, desire, motive, or principle, not carried or threatened to be carried into action. And the operation of the law is not thus restricted by lack of proof; for if, in a civil or criminal case of any description at common law, the defendant confesses the possession of all mental and moral depravity, no judgment can be rendered thereon. As BLACKSTONE states, there is no general rule of law requiring men to be truthful. To be a common scold is an indictable offence; to be a common liar is not. Of the untruths provable by legal evidence, not one in a thousand can be visited by any legal reprehension. Even falsehood under oath is not punished, except in peculiar circumstances. Perjury is, only in a judicial proceeding, under a competent jurisdiction, and concerning a matter material to the question pending. And compulsory veracity in relation to the future is equally exceptional, and is materially circumscribed by the statutes of frauds and limitations. In what sense could Christianity be a part of a system of law, in which a promise without a legal consideration is void, and a moral consideration is not a legal one? “A contract without a consideration is * * not binding in law, though it may be in point of conscience.” 2 Kent Com. 463; Lang v. Johnson, 24 N. H. 302, 307. And many promises, sustained by a consideration and by common honesty, are not enforced in law. A fortune, made by breaking a promise to restore or to pay for property acquired under some circumstances, may be retained without any legal censure whatever. There are cases of fraud, of accident, *210 and of trust, which neither courts of law nor of equity presume to relieve or mitigate.” 1 Story Eq., secs. 61, 308. “Human laws are not so perfect as the dictates of conscience; and the sphere of morality is more enlarged than the limits of civil jurisdiction. There are many duties that belong to the class of imperfect obligations which are binding on conscience, but which human laws do not and cannot undertake directly to enforce.” 2 Kent Com. 490; 1 Parsons Contracts 429, 434; 2 id. (5th ed.) 767-769; Fox v. Mackreth, 2 Bro. C. C. 400, 420; Harrison v. Bush, 5 E. & B. 344, 349. At common law, “the relief of the poor is not a legal obligation.” “There are many precepts of the gospel which the law of England does not enforce as obligations. It is the duty of every man to ‘honor his father and mother,’ but the law of England has no method to compel such honor.” Steel v. Houghton, 1 H. Bl. 51, 52, 62. “When some one remarked, ‘Christianity is part and parcel of the law of the land,’ Rolfe said to me, ‘were you ever employed to draw an indictment against a man for not loving his neighbor as himself?” 1 Henry Crabb Robinson's Diary 353, Am. ed., 1869. The common law makes a distinction between moral and legal obligation; does not compel the performance of such duties as charity, hospitality, kindness, humility, forbearance, mercy, and gratitude; and requires but a limited practice of veracity and honesty. And to say that Christianity is a part of such a system, is to say that miraculous revelation and inspiration are no part of Christianity, and to reproach the prevailing religion in an opprobrious manner, by reducing it to a fragment of natural religion, the legal rationalism of Lord COKE, and a very imperfect code of morality. When courts shall instruct juries that the golden rule is the preëminent rule of law on which verdicts are to be rendered; when legal decisions shall be avowedly based upon the Sermon on the Mount, or any of the precepts of the Christian revelation, there will begin to be some ground for the assertion that Christianity is a part of the law of the land. Until that shall be done, or until church and state shall be united, the assertion will continue to be a sounding and deceitful phrase,--a mere rhetorical expression, unintelligible in law and untrue in fact.

**178 And it is no disparagement of the law to say that miraculously revealed Christianity is not a part of it, as it is no depreciation of a physical science or a mechanical art to say that miraculous revelation is no part of it. Every institution, art, and science is not ordained for the accomplishment of all the purposes of creation: some are assigned to one work, some to another: if each is equal to its office, it is sufficient. The common law is not designed to be either a civil agency of the church, or an ecclesiastical institution of the state. It does not claim either a divine or a human authority to propagate or patronize any system of theology, to enforce or interpret the divine law, or to control or regulate the relations between mankind and the supreme government of the universe. “An orange-woman stops up the pavement with her wheelbarrow, and a policeman takes her into custody. A miser who has amassed a million, suffers an old friend and benefactor to die *211 in a workhouse, and cannot be questioned before any tribunal for his baseness and ingratitude. Is this because legislators think the orangewoman's conduct worse than the miser's? Not at all. It is because the stopping up of the pathway is one of the evils against which it is the business of the public authorities to protect society; and heartlessness is not one of those evils.” Macaulay's Essay on Church and State, Ed. Rev., Apr. 1839. Upon views of this kind, it was stipulated in the treaty with Tripoli, in 1796, that, “as the government of the United States is not in any sense founded on the Christian religion,” no pretext arising from religious opinions should ever interrupt the harmony existing between the two countries. And such are the views taken by the common law, which, unperverted by the union of church and state, is adopted in the constitution of New Hampshire, and which, by its principles and analogies, supports the general doctrine of religious equality, and requires the construction of the Protestant test that disables no man for his theology.

All parts of the constitution relating to religion unite in demanding this construction of the test. “Toleration,” said Chief Justice SMITH, “came to be considered a duty. With us it is exploded, for it implies an establishment which we have not. Here the doctrine of toleration has given place to the most perfect equality of rights.” Muzzy v. Wilkins, p. 107; Bloom v. Richards, 2 Ohio St. 387; Cooley Const. Lim. 467, 469. The constitution does not establish one religion as orthodox, and tolerate another as heretical; but its guaranties of equality of religious rights are promulgated with much more particularity and emphasis than the guaranties of other rights,--so anxious were the framers of that instrument to guard against the possibility of mistake, and the strained legal constructions which the fraudulent spirit of intolerance had employed in former times. Under this constitution, an undertaking by one class of men, in ignorance or defiance of law, to tolerate the religion of another class, is a dangerous usurpation. The power of toleration is to be resisted because it is the unconstitutional power of persecution.

**179 ARTICLE I. All men are born equally free and independent; therefore all government of right originates from the people, is founded in consent, and instituted for the general good.

ART. II. All men have certain natural, essential, and inherent rights,--among which are the enjoying and defending life and liberty, acquiring, possessing, and protecting property, and, in a word, of seeking and obtaining happiness.

ART. III. When men enter into a state of society, they surrender up some of their natural rights to that society, in order to insure the *212 protection of others; and without such an equivalent the surrender is void.

ART. IV. Among the natural rights, some are in their very nature unalienable, because no equivalent can be given or received for them. Of this kind are the RIGHTS OF CONSCIENCE.

ART. V. Every individual has a natural and unalienable right to worship God according to the dictates of his own conscience and reason; and no subject shall be hurt, molested, or restrained in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession, sentiments, or persuasion, provided he doth not disturb the public peace, or disturb others in their religious worship.

ART. VI. As morality and piety rightly grounded on evangelical principles will give the best and greatest security to government, and will lay in the hearts of men the strongest obligations to due subjection; and as the knowledge of these is most likely to be propagated through a society by the institution of the public worship of the DEITY, and of public instruction in morality and religion;--therefore, to promote those important purposes, the people of this state have a right to empower and do hereby fully empower the legislature to authorize, from time to time, the several towns, parishes, bodies corporate, or religious societies within this state to make adequate provision at their own expense for the support and maintenance of public Protestant teachers of piety, religion, and morality.

Provided notwithstanding, That the several towns, parishes, bodies corporate, or religious societies, shall at all times have the exclusive right of electing their own public teachers, and of contracting with them for their support and maintenance. And no person of any one particular religious sect or denomination shall ever be compelled to pay toward the support of the teacher or teachers of another persuasion, sect, or denomination.

And every denomination of christians, demeaning themselves quietly and as good subjects of the state, shall be equally under the protection of the law; and no subordination of any one sect or denomination to another shall ever be established by law.

The equality of freedom at birth, declared in Article I, is not limited to any particular religion, and the continuance of this equality is sedulously maintained throughout the constitution, except so far as the supposed allegiance of Catholics was regarded as inconsistent with the loyalty, obedience, and civil duties of citizenship. Article IV declares that the rights of conscience are unalienable and not surrendered to the government.

**180 Article V guarantees to every individual the “natural and unalienable right to worship God according to the dictates of his own conscience and reason,”-- not according to the Bible, nor according to the precepts of any particular faith,--and to entertain any sentiments on the subject of religion. “The object of this clause was to protect all, *213 the Mohammedan and the Brahmin, the Jew and the Christian, of every diversity of religious opinion, in the unrestrained liberty of worship and religious profession, provided the public peace should not thereby be endangered, nor the worship of others obstructed.” Donahoe v. Richards, 38 Me. 380, 403, 410. “Its object was, to secure the utmost possible latitude of toleration for every species of religious sentiment, and for the avowal or profession of every species of religious opinion.” Com. v. Kneeland, 20 Pick. 206, 221. That part of the article which relates to freedom of worship “embraces all who believe in the existence of God, as well Jews, Mohammedans, and deists, as Christians of every denomination;” and that part which relates to freedom of religious sentiment, “clearly protects every citizen not only in adopting but in professing whatever tenets he may think right; and necessarily includes the right of advocating and disseminating them. * * It has been suggested that this provision does not extend to atheists, because they do not believe in God or religion; and therefore that their sentiments and professions, whatever they may be, cannot be called religious sentiments and professions. But this, in my opinion, is too narrow a construction. * * Both the spirit and the language of this provision include within its protecting power all sentiments and professions concerning or upon the subject of religion; and guarantees to every one a perfect right to form or to promulgate such opinions and doctrine upon religious matters, and in relation to the existence, power, and providence of a Supreme Being, as to himself shall seem just.” MORTON, J., in Com. v. Kneeland, 20 Pick. 206, 233, 234. If in that case there had been occasion to investigate the Protestant test in our constitution, which did not establish a religion “to the support of which all were to be holden to contribute, and upon the ministrations of which all were to be compelled to attend,”--a constitution under which Abner Kneeland had been a parochial Protestant minister and a Protestant member of the legislature, instead of being imprisoned for blasphemy as he was in Massachusetts,--it would seem that there could have been no difficulty in ascertaining how the test, as originally understood and intended, was, in the general judgment of the Protestant world of 1783, consistent with guaranties of religious equality.

**181 Even if this equality had been confined to worship, it could not be destroyed by interpolating, in Article V, any sectarian ideas of the Deity. Trinitarians who acknowledge, and Unitarians who deny, the Deity of Christ, cannot, in precise and critical theological language, be said to worship the same God; but their religious equality before the law is not disputed. The Supreme Being, worshipped by Catholics and Protestants in general, was worshipped by the Jews many ages before the theological systems of Catholicism and Protestantism were introduced into the world; and there has been a greater change in the prevalent ideas of New England Protestants in regard to the attributes of the Deity, in a century, than among the Jews for thousands of years. And if the court should assume to put a stop to that innovation, they would usurp the spiritual jurisdiction of the extinct inquisitions of the *214 ancient Catholic, Episcopalian, and Calvinistic churches, and there would be an end of the religious liberty so solemnly and amply guaranteed.

The guaranty of religious freedom and equality in Article V accords with Article XXXVIII, which declares that “a constant adherence to justice, moderation, temperance, industry, frugality, and all the social virtues, are indispensably necessary to preserve the blessings of liberty and good government;” and with Article LXXXIII, Part II, of the constitution, which makes it “the duty of the legislators and magistrates” “to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and economy, honesty and punctuality, sincerity, sobriety, and all social affections and generous sentiments among the people.” In these passages, the noticeable absence of all allusion to miraculous revelation, or any particular form of theology, could not have been accidental.

The name of the Deity in Article V has the same meaning as the same word in Article LXXXIV of Part II of the constitution, which prescribes the form of official oaths with the clause “So help me God;” and that meaning is furnished by the oaths of witnesses at common law, which require a sense of accountability to the Supreme, a belief in a divine government that punishes falsehood. At common law, oaths are administered to witnesses of every religion of which such belief is a part, and in any form considered obligatory to the witness. Atheism (supposing it to be a possible faith) is the only religion that excludes a witness; and the exclusion is not a punishment of atheism. Chase v. Blodgett, 10 N. H. 22, 29. A deist, a theist, or a pagan, is as competent as a Catholic, a Lutheran, or a puritan. 1 Gr. Ev., secs. 368-371; Rex v. Bosworth, Stra. 1112; Com. Dig., Quaker; King v. Morgan, 1 Leach C. C. 54; Mildrone's case, Id. 412; King v. White, Id. 430; King v. Taylor, Peake 11; Mee v. Reid, Id. 23; Cooper v. Bisbee, 4 N. H. 329, 336; Maden v. Catanach, 7 H. & N. 360; Reg. v. Entrehman, Car. & M. 248; Reg. v. Serva, 2 C. & K. 53, 56; 1 Smith's Ldg. C. 195; Arch. N. P. 25; 2 Saund. Pl. & Ev. 1274; 1 Phil. Ev. 14-22; 1 Stark. Ev. 93; 3 Bl. Com. 449; Burn's Justice, Oaths, 537; Cooley Const. Lim. 478; 6 Camp. Ld. Chanc. 199-201; 9 id. 55; Webster's Argument in the Girard Will Case, 6 Webster's Works 168. The theory that morality and piety accompany an intellectual assent to the correctness of certain theological dogmas, and that immorality and impiety are a consequence or incident of the non-acceptance of a particular creed, has prevailed, in various parts of the earth, among different tribes more or less civilized; but it is not the theory of the common law or the constitution of New Hampshire. Long before our state constitution was written, it had been settled by the highest legal authorities that the notion of a man's rejection of Christian theology destroyed his sense of moral obligation (including the moral duty of veracity), and rendered it unsafe to receive his testimony, was never a principle of the common law. And the common law, which authorizes and requires a witness to pledge himself to testify under a sense of responsibility to the infinite power which he acknowledges, recognizes his *215 religion as lawful. He cannot, in law, be said to deny God, who, in law, is allowed and compelled to testify because he believes in God. And freedom of religious profession, sentiment, and persuasion being as plainly established as freedom of worship, an atheist can no more be hurt, molested, or restrained, than a pagan, a theist, a Unitarian, or a Trinitarian. By the express terms of Article V, religious equality has no other limits than the disturbance of the public peace and the infringement of rights necessary to the enjoyment of that equality. The anti-Catholic test was, in the minds of the men who constructed and adopted the constitution, a protection against a certain supposed foreign political allegiance, and not a theological discrimination. To their apprehension there was no incongruity in the constitution; and it is not for us to interpolate discrepancies in behalf of religious inequality, which is religious persecution.

**182 The sole object of Article VI is to obtain “the best and greatest security to government,” and the “strongest obligations to due subjection,” and not to provide for the spiritual welfare of the people. The careful selection of phraseology by which all oversight and charge of the religious interests of individuals was omitted as being not a legitimate function of government, and by which loyal subjection to the government was asserted as the object of the article, establishes its meaning too plainly to admit of doubt or cavil. And the use of the word “Protestant” was, in the non-Catholic view of 1783, in perfect harmony with, and specially designed to carry out, that object; for it is as certain that the loyalty and obedience of Catholics were commonly distrusted by non-Catholic governments, as that Catholics generally in Catholic countries gave to Protestants neither office nor religious equality. The public teacher of an incorporated parish, as we have seen, holds a civil office,--as purely civil, in contemplation of law, as the office of selectman or president of a railroad. And if it should be held that by Article VI the Protestant test was imposed upon such a public teacher, it must also be held that it was imposed only to prevent the dissemination of sentiments inconsistent with perfect allegiance to the state, for the sole purpose of securing loyalty and subjection to the government, according to the express terms of the article, and not for the purpose of persecuting men for their theology. If the test, now so odious that it has become obsolete, is to be revived at all, it cannot disable any class whose allegiance was not discredited in 1783; and the class to which Jefferson, Franklin, Ethan Allen, and Gov. Plumer belonged, although regarded by many as entertaining the worst theological opinions, were not esteemed less loyal than any other class of men. It would be contrary to legal rudiments to extend the test beyond the class of cases which were within the mischief the test was intended to remedy.

“Evangelical” was formerly synonymous with “Protestant,” both being used indiscriminately as a mere designation of the anti-Catholic party. 5 D'Aubigne Hist. Ref. 426, 431, 497; 1 Marsden Hist. Churches 144, 145; 3 Hume Hist. Eng. 370; Adler's German Dict., *216 5th ed., 186; 1 Laveaux French Dict., 2d ed., 782. In the constitutional convention of 1850, that was said to be the meaning of “evangelical” in Article VI. The word is now used, for ecclesiastical purposes, by orthodox denominations, to distinguish themselves from Unitarians, Universalists, and others. And if it is taken with the ecclesiastical signification which it has in nine tenths of the churches of the country, and if, with that signification, it modifies the Protestant test, and if the test, with that modification, is applied to the office of parochial public teacher, the decree in this case should prohibit Unitarian preaching instead of prohibiting all preaching except Unitarian. It would be our duty, upon proper application, to silence the pulpit of every incorporated Unitarian and Universalist parish in the state; and Unitarians and Universalists would be disqualified for the offices of governor, councillor, senator, and representative. In Dr. Baird's classification, the unevangelical denominations were Catholics, Unitarians, Christian Connection, Universalists, Swedenborgians, Tunkers, Jews, Rappists, Shakers, Mormons, atheists, deists, socialists, and Fourrierists; and spiritualists are now added to the same category. But religious equality is asserted in the constitution so explicitly, strenuously, and repeatedly, and with such great variety and intensity of expression, that it cannot be overborne by a word that has been used, in common with “Protestant,” as a simple designation of the anti-Catholic party. And the structure of Article VI tends strongly to show that “evangelical” is there used merely to describe principles opposed to Catholicism. The word occurs only in the preamble, and “Protestant” occurs only in the enacting clause; whereas the idea of the preamble and the enacting clause is the same, and is expressly declared to be the security of the government, and the subjection,--that is, the allegiance and obedience,--of the people to the government, with which Catholicism was, and infidelity was not, supposed to be inconsistent. At all events, whatever the word separated from the context might mean, even if it were literally irreconcilable with the guaranty of religious equality, that guaranty is set forth with such superabundant fulness, such an exhibition of profound earnestness, and radical, uncompromising purpose, that it would not be doubtful which must be held subordinate to the other. We must read the constitution with the emphasis clearly indicated in its composition.

**183 In a nation in which any form of religion is substantially universal or unopposed, the name of that religion naturally becomes, in common usage, synonymous with religion in general; and “Christianity” is frequently used in this sense. “I believe with Justin Martyr,” said John Adams, “that all good men are Christians, and I believe there have been and are good men in all nations.” 10 Works of John Adams 390, 45. “Christianity was at first regarded as embracing so wide a range, that Justin did not hesitate (Ap. 1, c. 46) to consider Socrates, and all those who had lived up to the light of reason, as Christians.” Hase Hist. Christianity 74. One of the definitions of “Christian” in Worcester's Dictionary is, “In the most general sense, *217 an inhabitant of Christendom.” “In a general sense, the word Christians includes all who are born in a Christian country or of Christian parents.” Webster's Dictionary. The word “Protestants,” as sometimes used, includes none who are not Christians in this or some other sense. In this general sense Abbott is included, as well as in the legal, non-Catholic sense of the Protestant test.

“What a lamentable case it is to see so many Christian men and women strangled on that cursed tree of the gallows, insomuch as if, in a large field, a man might see together all the Christians that but in one year in England come to that untimely and ignominious death, if there were any spark of grace or charity in him, it would make his heart to bleed for pity and compassion.” 3 Inst. 243. In the Plymouth colony it was a capital crime for “any Christian (so called)” to “be a Witch;” it was a crime for “any Christian so called” to “speak contemptuously of the Holy Scriptures;” and it was provided, “if any Christian so called shall, within this jurisdiction, go about to subvert or destroy the Christian Faith or Religion, by broaching or maintaining any * * dangerous Error or Heresie * * tending to corrupt and destroy the souls of men,” he “shall be fined, banished, or otherwise severely punished.” Plymouth Laws, p. 244, sec. 8; p. 247, sec. 11; p. 248, sec. 12. In Massachusetts, it was enacted, in 1646, that, “if any Christian within this jurisdiction shall go about to subvert and destroy the Christian faith and religion, by broaching and maintaining any damnable heresies,” he “shall be sentenced to banishment;” in 1652, it was made a crime for any person, “professing the Christian religion, above the age of sixteen years,” to deny any of the books of the Old or New Testament “to be the written and infallible word of God;” and there was a special penalty for any negro or mulatto who should “presume to smite or strike any person of the English or other Christian nation.” Ancient Charters Mass. 120, 748. The New Hampshire code of 1680 retained the Massachusetts statute, that, “If any Christian soe called be a witch, that is, hath or consulteth with a familiar spirit, he or they shall be put to death.” 8 N. H. Hist. Coll. 11. If Mr. Abbott, with his present religion, had lived under that law, and had been accused of witchcraft, he would not have escaped on the plea of not being a Christian.

**184 In 1684, the sending of Indian allies by the governor of New York to aid in suppressing “a sudden rising intended by the Indians in these eastern parts” was called “a work of piety and charity for preventing the effusion of christian blood.” Id. 252. In 1714, it was stated in the preamble of an act copied from a Massachusetts statute, that “the over great number and increase” of “Indians and other slaves” “is a discouragement to the importation of white christian servants.” Laws 1771, p. 53. In 1718, an act was passed restraining ““““““““inhuman severities” toward “christian servants,” and making it a capital offence to kill an “indian or negro servant.” Id. 101. Who some of the ““““““““christian servants” were is shown by the act of 1701, which provided that persons convicted of larceny might be disposed of “in service.” *218 Id. 16, 17, 61, 62. If Abbott had been in that service, and had been ill-treated by his master, he would not have been deprived of the protection of the law on the ground that he was not a Christian servant.

Narrow, technical definitions of Christianity abound in sectarian controversies, and in the history of united church and state, at levels of civilization lower than that of New Hampshire in 1783. Eleven years before the settlement of New Hampshire, Bartholomew Legatt and Edward Wightman were burned in England for being guilty of that Unitarianism which the decree in this case undertakes to perpetuate. The writs de hæretico comburendo issued in their cases are given in 2 How. St. Tr. 731-738. The writ for burning Legatt, directed to the sheriffs of London, contained a preamble, reciting, among other things, that “the reverend father in Christ, John, bishop of London,” had certified that “in a certain business of heretical pravity,” “with the advice and consent as well of the reverend bishops and other divines as also of men learned in the law in judgment sitting and assisting,” he had decreed Legatt “to be an obdurate, contumacious, and incorrigible heretic, and rotten, contagious member, to be cut off from the church of Christ and the communion of the faithful,” and had left him “as a blasphemous heretic to our secular power to be punished with condign punishment, as by the letters patent of the said reverend father in Christ, the bishop of London, in this behalf thereupon made, is certified unto us in our chancery.” The mandatory clause of the writ runs thus: “We command you that you cause the said Bartholomew Legatt, being in your custody, to be publicly committed to the fire, before the people, in a public and open place, at West Smithfield, for the cause aforesaid, and the said Bartholomew Legatt to be really consumed in the said fire, in detestation of said crime, and for an example to other Christians lest they fall into the same crime.” Concerning the execution of Legatt, an orthodox historian writes,--“In this very Smithfield how many saints, in the Marian days, suffered for the testimony of Jesus Christ! Whereas, now one therein dieth in his own blood for denying him. * * Refusing all mercy, he was burned to ashes. * * Oh, that he might be the last to deserve” such manner of death. 2 How. St. Tr. 730. It is not by sectarian precedents and ecclesiastical authorities of this kind that the language of the constitution is to be interpreted.

**185 Butts v. Penny, 2 Lev. 201, “was an action of trover brought for negroes; and it was found by a special verdict, that the negroes were infidel, and the subjects of an infidel prince, and were usually bought and sold in the plantations as merchandise, by the custom of merchants, &c. The court seemed to hold that negroes, being usually bought and sold as merchandise, and also being infidels, there might be a property in them sufficient to maintain trover. But it was adjourned, and it does not appear that any judgment was ever given. In this, and some subsequent cases, the infidelity of negroes was considered as a ground of property in them. There have been times, indeed, when it *219 was holden, to the disgrace of human nature, not only by Mahometans, but by those who professed to be Christians, that the whole race of infidels might rightfully be reduced, by fire and sword, to the dominion of the faithful. Those were not times in which the rights of men would be respected or understood. By a progress in improvement, more just and enlightened opinions have been entertained. The spirit of bigotry dictated that heathens were unworthy of all confidence and belief, and hence they were excluded from testifying in a court of justice. The bitterness of that spirit cannot, perhaps, be more strongly shown, than by repeating what it induced so great and good a man as Sir EDWARD COKE to express in Calvin's case, 7 Rep. 17, that “All infidels are in law perpetual enemies; for between them, as with the devils whose subjects they be, and the Christian, there is perpetual hostility, and can be no peace. * * And herewith agreeth the book in 12 H. 8, fol. 4, where it is holden that a pagan cannot have or maintain any action at all.' But these principles have since, by repeated decisions and constant practice, been exploded; and they are gone, I hope, forever, with the bigotry from which they originated. Chief Justice WILLES, speaking of the foregoing opinion of Lord COKE, thus with great justness expresses himself: ‘But this notion, though advanced by so great a man, is, I think, contrary, not only to the Scripture, but to common sense and common humanity; and I think that even the devils themselves, whose subjects he says the heathens are, cannot have worse principles.” Judge SEDGWICK'S opinion in Greenwood v. Curtis, 6 Mass. 358, 366, n. These exploded principles were not held by those only who were Christians in a theogical sense: they were also held by those who were Christians only in an ethnological sense.

“Perhaps no name in the English language has been more improperly applied than that of Christian. In its original application, it designated persons who were born from above; now it is applied to all born in a nation of this world called a Christian land. * * It is given to many merely because they have been baptized in the name of Christ. They have had his name called over them by a minister, and, as if there was some charm or incantation in the mere sound of the name, they are called Christians. If baptism makes men Christians, it is evident there are many Christian drunkards, and Christian swearers, and Christian liars, and Christians who practise every kind of iniquity. * * If these are Christians, the difference between heathenism and Christianity does not consist in any change of heart and life, but in being washed with water. * * Others are called Christians, because they are descended from religious parents. * * No man can go to hell by substitute, nor can he find admittance to heaven by the Christianity of others. * * Every true Christian is born again. * * To have any title to the name, it is absolutely necessary to have the character of a Christian. * * Many are called by this name because they can talk about the doctrines of Christ. The religion of Jesus to such seems to be a matter of mere speculation; for, while the most orthodox doctrine flows from their lips, their hearts seem unimpressed *220 with its importance, and their lives at variance with it. * * Is an orthodox creed all that is necessary to constitute a Christian? Or do any imagine that God has given us his word, to see * * how orthodoxly we shall speculate, and how wickedly we shall live? * * Some receive the appellation Christian, because they are what is called morally decent in their conduct among men. Without true morality, no man can be a Christian; but mere morality is not Christianity. Many of the sages of antiquity were what is called moral men, yet were ignorant of Christ and his revelation. * * Others are called by the name Christian, because it is supposed they have been converted. Without conversion to God, no man is a Christian. * * But in this we are liable to deception. If the animal passions have been moved, alarm of conscience experienced, and some sudden feeling of joy produced in the mind, these are considered by many true conversion. All these have been produced in many, to a very extreme degree, who continue ignorant of Christ, and walk after the course of the world. The passions may be moved, the conscience alarmed, and the mind made joyful, from a variety of causes unconnected with the gospel of Christ. The peculiar tone, the bodily gesticulation, and furious declamation of a preacher have produced these things in a whole congregation; while the understanding has not been addressed, nor the gospel preached. Sympathy may produce tender feelings, mere dread of present or eternal danger may excite alarm of conscience, and joy may be produced in the mind, not from the hope revealed in the gospel, but from the hope that we are better people. * * How many, in giving an account of their conversion, seem to think that feelings are all that is necessary to prove it genuine. * * Many, moreover, receive the name Christian because they are members of some Christian church. Such ought to be Christians, not in name only, but also in deed and truth. But, alas! whilst their names are on the list of the living in Jerusalem, they still continue in the congregation of the dead. * * They are to be found at meeting to-day, and at the play-house to-morrow; at the Lord's table on the first day of the week, and at the card table the other six. * * Will a name and a place here among the saints prove a covert from the tempest and a refuge from the storm, in the terrible day of the Lord? No. Jesus will gather out of his kingdom all things that offend and those that do iniquity, and cast them into the lake of fire and brimstone, which is the second death.” The Panoplist (N. S.), vol. 1, p. 11.

**186 Such is the general doctrine of the Christian church,--a man is not a Christian without orthodox theology, Christian character and life, sound theoretical, practical morality, regeneration, and salvation secured by grace through faith in the crucifixion as a propitiatory sacrifice. But it is not pretended that the constitution or the law provides any process or tribunal for the determination of all these points. No one imagines that the word “Christians” is used in the constitution in this technical, ecclesiastical sense. In what sense is it used? It does not mean sound theology; for, as this court has declared, “it is agreed *221 on all hands” that the court is not authorized to decide what sound theology is. The Dublin case, 38 N. H. 510. As it does not mean all the doctrines of sound theology, it does not mean any one of them: the court has no more power to decide upon the soundness of one, than it has to decide upon the soundness of all,--no more power to decide what the true doctrine of the Messiahship is, or that it was a doctrine taught by Christ, than to decide what any other true doctrine is, or to settle all the doctrines taught by him. If it means character, life, and morals, it is admitted on all hands that Abbott is a Christian, and that the decree is wrong. It does not mean sound morality. It is admitted on all hands that, in the elections of parochial public teachers, the court has not a veto power to be exercised when the moral characters of the persons elected do not meet the approbation of the court; that the court cannot reverse the decision of the electors by removing from parochial, executive, or legislative Protestant office an infamous person elected by the competent authority; and that the court cannot forbid parishes “to allow, suffer, or permit” any person to preach in their meeting-houses, who, in the opinion of the court, is not morally sound. And as the word “Christians” in the constitution does not mean the theology or the moral principles and practice of Christ, so it does not mean the belief that those principles were unknown in the world before they were announced by him. The decision in this case is, that a man who calls himself a Christian, and assents to the truth of the Christian religion as taught in the New Testament as he understands it (whether he understands it rightly the court cannot determine), is a Christian. If he conforms to that definition, his Christianity is res adjudicata, although in theology he is a deist who believes Christ was a deist; although in practical morals he is totally depraved; and although he agrees with Buckle when he says,--“That the system of morals propounded in the New Testament contained no maxim which had not been previously enunciated, and that some of the most beautiful passages in the apostolic writings are quotations from pagan authors, is well known to every scholar; and, so far from supplying, as some suppose, an objection against Christianity, it is a strong recommendation of it, as indicating the intimate relation between the doctrines of Christ and the moral sympathies of mankind in different ages. But to assert that Christianity communicated to man moral truths previously unknown, argues, on the part of the assertor, either gross ignorance or else wilful fraud.” 1 Buckle's Hist. Civ. Eng. 129, n. 14, Am. ed. 1861. Christianity, as a system of theology and morals, stripped of theological and moral soundness, and of the Christian origin of Christian ethics,--does the constitution establish such Christianity as that for an ecclesiastical purpose?

**187 There is no way to condemn Abbott but by the device of nominal Christianity. What kind of religion is that? It is not Christianity, and therefore it is something spurned by the whole Christian church. It is not that religion, because it is nominal, and because it must be something the court can authoritatively define, declare, and establish. *222 It is nominal, that is, theoretical, unsubstantial, of no consequence. Unitarian Christianity is to be maintained, and infidelity put down, by something immaterial. This immaterial, Christian nominalism, by which Abbott is condemned, is not what a man is, nor what the court think he is, but what he chooses to say he is. For simplicity, facility, and convenience, it is unsurpassed. It is a man's election of himself into the popular party by calling himself a Christian, and professing to believe what he professes to believe the religion of Christ was. It is an easy method for one, ambitious of such martyrdom as the civilization of the age allows, to gain that distinction by indulging a verbal crochet.

For all the purposes of this case, the religions of Jefferson and Abbott are undistinguishable, except in name. This is Jefferson's religion: Jesus ““endeavored to bring” the Jews “to the principles of a pure deism.” ���To the corruptions of Christianity I am indeed opposed; but not to the genuine precepts of Jesus himself. I am a Christian, in the only sense in which he wished any one to be.” 4 Jefferson's Works 422, 479, ed. 1861. Abbott's religion, as set forth in the sermon complained of by the plaintiffs as containing the sum and substance of his heresy (preached upon the text, Luke ix, 49, 50, And John answered and said, Master, we saw one casting out devils in thy name, and we forbade him, because he followeth not with us. And Jesus said unto him, Forbid him not: for he that is not against us is for us) is this: “How shall we define Christianity? * * Let us briefly compare what Jesus himself seems to have taught, and what his disciples have taught in his name. If I have truly caught the spirit of his teachings, Jesus taught nothing essentially different from pure theism. That faith in the Divine, which is the soul of theism, he rendered more intense and vital by the marvellous way in which he himself lived it; and he gave it more definite directions upwards to God and outwards to man,--but no new truth that can be stated in words can be traced to his lips. All his great sayings of ethical or spiritual importance can be paralleled in other ancient authors. The career of Jesus seems to me to derive all its power over the souls of men, all its influence over the course of history and the progress of civilization, from the one fact that he put pure theism into an individual life, and that this life tends perpetually to put theism into the life of humanity. Love to God and to man is the epitome of his instruction, and this is simply faith in the Divine in its twofold aspect. Hence I deem it right to say that Jesus was himself not a Christian, but a simple theist; and that simple theism is the entire burden of his life and doctrine. Quite otherwise is it, when we come to his disciples. The same narrow spirit which made John prohibit the stranger from casting out devils (whatever that may be), unless he would accept the yoke of discipleship, has ever since, despite the reproof of Jesus himself, appeared and ruled in the Christian church. * * I claim to be neither a Unitarian nor a Christian, but simply a theist. The convictions I have expressed to you the past three years have not changed *223 except to strengthen and intensify. Jesus I believe to have been a theist, and Christianity I believe to be a perversion of theism. In resigning the names Unitarian and Christian, I do so with full knowledge of the grave, practical consequences that must ensue; but, wishing ever to be docile to the teachings of life, this step seems to me the plain lesson of recent circumstances. Outside of Christianity must my protest against error and sin henceforth be heard; but not outside of religion,--not, I trust, outside of spiritual fidelity,--not, I believe in my soul, outside of God. Face to face with him at every step, let us toil faithfully on.”

**188 Jefferson, a deist, believing that Christ was a deist, calls himself a deist and a Christian, using those words as synonymous, and not in the sense of that Christianity which he regards as “the corruptions” of the deism of Christ. Abbott, a theist, believing that Christ was a theist, and not a Christian, that is, not one of that class of Christians whose Christianity is “a perversion” of his theism (or, as Jefferson expresses it, “the corruptions” of his deism); Abbott, believing this, and fearing that, if he calls himself a Christian, he will be understood to belong to that class to which he thinks Christ did not belong, calls himself a theist and not a Christian. Jefferson asserts his legal, moral, and ecclesiastical right to call that Christianity which he believes to be the religion of Christ: Abbott resigns the Christian name because others use it to describe that which he believes to be a perversion of the religion of Christ. Jefferson insists upon and exercises the right of calling things by what he considers their right names,--a right disclaimed by nobody but Abbott, whose idiosyncrasy, but for his established character as a sincere religionist and ingenuous devotee, would expose him to the suspicion of having an inclination to be persecuted. By the circumstance that others do not agree with Jefferson and Abbott, or with each other, as to what the religion of Christ was, Jefferson is not, and Abbott is, deterred from calling it Christianity. Each claims to be “a Christian in the only sense in which” he believes “Christ wished any one to be.” And yet, according to the nominal distinction, one of these men is a Christian and the other is not, because one does and the other does not call himself a Christian, although both mean the same thing. To condemn Abbott by such a refinement, is alike discreditable to religion and law. It were better for church and state that he be let alone. If Jefferson were here in Abbott's place, being a nominal Christian, that is, calling himself a Christian, and accepting “the principles of a pure deism,” which he believed Christ taught, the court would permit a parish to permit him to preach Abbott's religion in the meeting-house of the parish, although the court would not permit the parish to permit Abbott himself to preach it there. As a religious standard, without doctrine or virtue, faith or works, reformation or rectitude, discipline or ceremony, reality or formality, substance or shadow, this nominal Christianity is exceedingly nominal. De minimis non curat lex.

The true construction of the constitution is that which makes every *224 parish theologically independent of the state, and leaves the pulpit of every parish in the control of the parish, free from the theological correction of secular tribunals. The constitution, like the common law adopted by it, is neither a medical theory (Boardman v. Woodman, 47 N. H. 148, 150) nor a theological system. It is human law, reverently recognizing the inviolability of religion; not impiously usurping the direction of spiritual affairs; permitting no executive, legislative, or judicial encroachment upon the kingdom that is not of this world; meddling not, and allowing no earthly power to meddle, with those rights for the exercise of which, men, in their individual, parochial, and ecclesiastical capacities and relations, are responsible only to the divine government. Upon these fundamental and acknowledged principles of the constitution, the word “Christians,” in Article VI of the bill of rights, does not give the court any spiritual jurisdiction, or any temporal power to invade the province or infringe the liberty of the church; and therefore is not an ecclesiastical criterion or religious limitation which the court is to apply, and is not used in any theological sense which the court is to enforce. It does not authorize the court to demolish parochial independence, erect a hierarchical system of license and prohibition, and appropriate the ecclesiastical sovereignty. It does not force the law to profane the territory of the church, nor subject religion to the dishonor and degradation of nominal and actual insignificance.

**189 Nothing less than the broadest possible definition of the word is compatible with the general tone and spirit, or with the letter of the constitution. When it is declared in Article I, that “all men are born equally free and independent;” in Article IV, that the rights of conscience are unalienable; in Article V, that “every individual has a natural and unalienable right to worship God according to the dictates of his own conscience and reason; and no subject shall be hurt, molested, or restrained in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession, sentiments, or persuasion, provided he doth not disturb the public peace or disturb others in their religious worship;” and in Article VI, that parishes “shall at all times have the exclusive right of electing their own public teachers,” and that no person of one sect “shall ever be compelled to pay toward the support of” teachers of another sect; and that “every denomination of Christians, demeaning themselves quietly and as good subjects of the state, shall be equally under the protection of the law, and no subordination of any one sect or denomination to another shall ever be established by law,”--all these provisions are to be taken together, according to a familiar and elementary rule of construction; and the evident design of them all is, to establish equality and not inequality. It was not meant that any class of citizens, “demeaning themselves quietly and as good subjects of the state,” should not “be equally under the protection of the law.” It was not meant, for instance, that a subordination of Jews to Mohammedans, or to any other class, might *225 “be established by law.” Such a law would be a plain violation of the constitution.

We may be sure that the men who framed that instrument did not resort to the artifice of asserting the legal principle of religious equality, again and again, in the broadest and most explicit terms, in the first five articles, and in the proviso of Article VI, with the singular purpose of insidiously undermining the whole in a postscript. Especially may we be confident, since the postscript purported a mere confirmation, illustration, or application of the principle they had just laid down. Their work was not a scheme of false pretences, clothed in dark, equivocal, and mysterious forms. It was not a subtle and obscure machination of intolerance, to be discovered and put in operation by astute construction. In the most positive and definite manner, they declared that government can interfere in religion for no other purpose than to preserve the public peace, and the fealty indispensable to its own existence. And if they had meant that any class of men, “demeaning themselves quietly and as good subjects of the state,” but not coming within some theological definition of “Christians,” might be deprived of the rights so solemnly and repeatedly guaranteed to all, they would have so said. They had no motive to impose upon the court the duty of developing, by conjecture, exceptions to the general rule of religious equality. And the great pains taken by them, in reiterating the rule so strongly and so often, seems to indicate a fear that attempts would be made to introduce exceptions contrary to their design.

**190 It is to be particularly observed, that the paragraph in which the word “Christians” occurs is devoted to the subject of religious equality; that it is a mere reäffirmance of the general right, in the details of being equally under the protection of the law, and free from sectarian subordination; and that it does not relate to the qualifications of parochial public teachers or other civil officers. It prohibits the establishment of any form or substance of state religion, or any sectarian monopoly or superiority. Its sole object evidently is, to reinsure equality; and, from a provision of that kind, it is impossible to infer an intention to permit inequality, particularly when it follows so many unlimited provisions of the same nature. If an exception to the general rule had been intended, it would not have been left to be implied from an equivocal word in a reinforcement of the rule. “Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects.” U. S. v. Fisher, 2 Cranch 358, 390; Smith v. Spooner, 3 Pick. 229, 230.

The Catholic exception was created by the word “Protestant,” which, for legal and ordinary secular purposes, had been the common English negative of ““Catholic” more than two hundred years, and was the familiar description of a familiar legal test relating, not to theological soundness, but to political fidelity, and designed solely for a barrier *226 against a supposed supreme civil allegiance to the pope. No theological test being imposed and no religion established, but, on the contrary, state religion being multifariously prohibited, such a negative and unsectarian term was peculiarly appropriate. In the mixed secular and ecclesiastical government of England, which established a religion instead of religious equality, positive terms and theological tests were sometimes used in addition to the negative Protestant test. Burke, in his Letter to Sir H. Langrishe, said that “to form an operose ecclesiastical establishment,” something more was needed than a religion which “was nothing but a mere negation of some other.” But in the religious plan of our constitution, excluding an ecclesiastical establishment, negatives are freely used. There is in it not a sentence that affirmatively establishes any religion; not a sentence that prohibits any but a state religion; not a sentence, taken in the sense and the view of the time in which it was written, that is incompatible with religious equality. And when we find this equality asserted as affirmatively and positively as a state religion is asserted in some English statutes, and when we consider that religious equality and a state religion cannot coexist in any government, we realize the impossibility of building up a state religion in New Hampshire on any inference or implication. In the absence of the affirmative and positive establishment of religious equality, a foundation for a legislative structure of religious inequality might, by an intolerant application of ecclesiastical definitions to legal language, have been inferred from the supplemental provision that “every denomination of Christians, demeaning themselves quietly and as good subjects of the state, shall be equally under the protection of the law; and no subordination of any one sect or denomination to another shall ever be established by law.” But, in the full measure of constitutional, positive, religious equality, there is no room for an antagonistic inference of a state religion.

**191 Whatever ecclesiastical, technical meanings, among particular classes, or in special connections, or for theological purposes, the word “Christians” might have had, it was capable of, and was often used in, a general sense that included such men as Jefferson, Franklin, and Plumer; and it is to be so understood here, because in no other sense is it consistent with the rest of the constitution. A word susceptible of a liberal as well as a restricted meaning is generally to be so interpreted as to harmonize with unambiguous clauses of the context in favor of the large liberties and equal rights impregnably intrenched on every page of the constitution. The supplemental provision, asserting denominational equality in law and prohibiting sectarian subordination, taken in connection with all the previous stipulations relating to the same general subject, shows that the authors of the constitution exerted themselves to the utmost, by repetitions of the guaranty of religious freedom and equality, in numerous forms of expression well-nigh exhausting the power of language, to establish that guaranty beyond the reach of doubt, and, by an extraordinary display of safeguards, to render it obviously and conspicuously unassailable.

*227 The conclusions are,--

The power of electing public teachers is granted to all parishes by the constitution:

This power, if limited in any respect, is not limited by any other than the Protestant official test:

Abbott is a Protestant within the meaning of that word as used in the constitution:

And this Dover parish, in the exercise of its constitutional power, is authorized to elect him to be one of its public teachers.

How are these legal conclusions to be avoided? By denouncing Abbott as an infidel? That is something not to be heard here, however effective it may be elsewhere. It is said that, recently, since the commencement of this suit, Abbott, in a sermon, publicly delivered in Dover, gave it as his legal opinion that he is not a Protestant in the meaning of the constitution. Concerning this statement of his opinion on a question of law, there are several observations to be made. In the first place, it is evident that nothing but his admitted perfect integrity and absolute artlessness save him from the imputation of enjoying persecution, and taking extraordinary pains to proclaim his opinions whenever they can do him any harm. In the second place, although it would be no great cause of wonder that such a youth should adopt a heresy notwithstanding the devotion of his life to the study of theology, it would be strange if a court of law should condemn his religion by affecting a reliance upon his opinion of law, which he has not studied at all. In the third place, if this man Abbott's ignorance of law is to destroy not only his own constitutional rights, but to give the constitution an erroneous construction that destroys the independence of every parish in the state, puts all ecclesiastical affairs under the control of this court, and abolishes religious liberty, a thorough legal education is a more important part of a preparation for the ministry than has heretofore been supposed. In the fourth place, if he is relied on as a legal authority, his whole opinion, and not a partial statement of it, is to be taken. “I have believed,” says he, “and believe still, that our (the defendants') right to occupy the church is clear, both legally and morally; for a fair majority of any society may rightfully control the use of its own buildings.”

**192 The right of a parish to elect its own public teachers is but an instance of the right of “every individual * * to worship God according to the dictates of his own conscience and reason,” which the constitution declares to be “a natural and unalienable right.” The unalienable right of freedom in worship necessarily includes the right of selecting the public teachers who conduct the parochial worship, and of listening to their teachings in the parochial meeting-house. The right, being unalienable in the individual, is not lost by his becoming a member of a parish. It is impracticable for the members of a parish to exercise it in their collective, parochial capacity, except by major vote, or major silence, or some other manifestation of the will of the *228 majority, the minority being entitled to withdraw. The right is unalienable in the parish, as in each member. The unalienable power of the parish rests upon first principles, and is of the very essence of our institutions. 2 Channing's Works 270, ed. 1849.

“The same principle prevails in these incorporated societies (all corporations) as in the community at large, that the acts of the majority, in cases within the charter powers, bind the whole.” 2 Kent Com. 293. “The general principle of the right of the majority to control the minority, in all the operations of the company, within the legitimate range of its organic law, is implied in the very fact of its creation, whether expressly conferred or not.” Redfield on Railways, sec. 20, 3, 2d ed. If the constitution had not provided that parishes “shall at all times have the exclusive right of electing their own public teachers,” they could, like other corporations, lawfully elect their officers, agents, and servants, of any and all denominations,--Trinitarian, Unitarian, and theistic. The right is inherent, and exists, unless prohibited. But the express constitutional grant of elective power to parishes leaves no occasion and no room to erect that power on any other foundation, and perpetuates it unmistakably beyond the possibility of destruction or modification under the constitution as it is.

When an incorporated parish elects a public teacher, and he accepts the office, and the terms of an unwritten contract between them are to be implied, the known opinions and usages of the parish and of other parishes may, by mutual understanding, become a part of the contract, or may tend to show a part of the contract; but known opinions and usages cannot limit the right of election--Baker v. Fales, 16 Mass. 488, 508: a repeal of the constitution cannot be implied from the circumstances, parochial opinion, and usage, as a contract may be.

The control of a meeting-house, with a sectarian restriction, might be given to a parish, and the restriction might be enforced. Although the parish would not be obliged to accept the gift (and the restriction might be such that the parish would not have the legal capacity to accept it), it would not be allowed to use the house without conforming to all valid and binding restrictions; but a restricted use of the house would not affect the constitutional elective power, which is a part of the legal nature of the corporation. If the owner of the property should legally devote it to a Unitarian use, or a Christian use, or a Unitarian Christian use, and a question should arise as to the theological nature of a use to which the property was applied, the court would inquire, not what is true Unitarianism, or genuine Christianity, or pure Unitarian Christianity, but what was the nature of the use intended by the donor, and would ascertain his intention by settled rules of law; but his intention could not change the independent unsectarian nature given to a parochial corporation by the constitution of the state.

**193 The elective power of railroad, manufacturing, and banking corporations chartered by the state, not being secured by the constitution, may be regulated by the legislature and by the corporations. But the elective power of parishes is granted with greater emphasis than the *229 elective power of towns. And as the constitutional power of a town to elect representatives cannot be abolished or limited by the legislature, or by the town, except by terminating the corporate existence of the town, so the constitutional elective power of a parish cannot be abolished or limited by the legislature, or by the parish, except by terminating the corporate existence of the parish.

Suppose a town, having one hundred and fifty ratable male polls of twenty-one years of age and upward, to be incorporated by any name the most significant that can be devised to express its position on the temperance question, or any political subject; suppose, also, that, in the act of incorporation, the legislature declare that the town shall never elect a representative whose opinions on that question do not agree with the corporate name; suppose, moreover, that, in the outset, the voters of the town vote unanimously, and agree, and undertake to bind themselves and their successors and the town, by articles of agreement, by-laws, and instruments under hands and seals, in the most solemn forms, and by the most ceremonious proceedings, to abide forever by the limitations named in their legislative charter; and suppose, at the end of one hundred years, a majority of the town, for the first time, elect a representative whose principles are exactly opposed to those asserted in that charter, and in the name, votes, action, and uniform practice of the town,--no one would think of questioning the constitutional power and right of the majority to elect such a representative, and to be represented by him; because the provision of the constitution is, that such a town “may elect one representative.” A minority would not ask us, upon incompetent evidence of the political opinions, proceedings, and usages of their predecessors, to interfere by injunction and destroy the constitutional political freedom of the town. So, if, in addition to the name adopted by the parish, Unitarianism had been expressly declared to be the religion of the corporation, by the legislature, in a general or special act of incorporation; and if the legislature had also enacted that the corporation should never elect any other public teacher than a Unitarian; and if the members of the corporation had bound themselves and the corporation, by articles of agreement, by-laws, and all other means, to abide by the act of the legislature; and if the corporation should thus abide one hundred years, the majority, at the end of that time as well as before, would have as indisputable a right to elect such a man as Jonathan Edwards, or President Wayland, or John Wesley, or Thomas Jefferson, for their public teacher, and to hear him preach and inculcate his own doctrines, as a town would have to change its opinion and its action on a political question; because the provision of the constitution is, that parishes “shall at all times have the exclusive right of electing their own public teachers.” And where have the members of a parish a better right to receive the instructions of the teacher of their choice, and engage in religious exercises under his leadership, than in the meeting-house of the parish? For what other purpose does a parish have a meeting-house?

**194 Suppose the name of a town to denote the political views of its *230 inhabitants (the names of some of our towns were in fact designed to carry a political significance, and the name of one (Jackson) has been changed for that very purpose), and the legislature change the name to one of the opposite meaning: no one would understand that the political corporate power of the town would be affected. So if, at the unanimous request of the members of this Dover parish, the legislature should to-morrow change its corporate name to The Baptist Society, The Methodist Society, The Episcopalian Society, The Puritan Society, The Trinitarian Society, The Buddhist Society, or The Independent Society, it would have no other theological corporate character or quality than it has to-day. As a corporate being, created by law, it is constitutionally incapable of any other theological capacity than independence. Under our constitution, parochial corporations are, by nature, as independent ecclesiastically, in their choice of public teachers, as towns are politically in their choice of representatives. However it may be in England or other jurisdictions in which the parochial elective power is not established by a constitution beyond legislative interference, and however it may be here in a case of corporate power not thus established, it is clear that a sectarian name of a New Hampshire parochial corporation has no more effect upon its constitutional unsectarian independence, than the name black or white has upon the natural color of a child. Calling such a corporation a railroad company would not give it the rights and duties of a common carrier. The legal capacity of a corporation depends upon the powers granted to it by law; and a parochial corporation, made theologically independent by the constitution, cannot be made sectarian by any names which the legislature or the members of the corporation may give it. Giving a member of such a corporation a Christian name does not legally bind him to a Christian character or a Christian faith; and, under our constitution, the name of such a corporation has no more legal effect upon its elective power, than a Christian name of one of its members has upon his constitutional right to choose and change his religion. A corporate name does not authorize a judicial destruction of a corporate constitutional right.

For these reasons it is immaterial whether the legislature or this Dover parish have made any attempt to restrict the parochial power of electing public teachers. Any such attempt would have been ineffectual and void,--a futile undertaking of ignorance to abolish the constitution. But if it were material, it would be found that neither the legislature nor the parish have made any such attempt. By a rule universally adopted, courts are bound to presume that the legislature have not intended to violate the constitution; and if one interpretation of a statute is in accord, and another in conflict with, the constitution, the former is generally to be preferred. 41 N. H. 555. There is, however, no opportunity to apply this rule in the present case, for there is not, and there never was, any statute, general or special, which can possibly be perverted to an assault upon the elective franchise of this parish. A similar rule of construction has been applied to conveyances *231 of property. In Attorney-General v. Pearson, 3 Meriv. 353; 7 Sim. 290; Attorney-General v. Shore, 7 Sim. 290, note; 9 Cl. & Fin. 499; 11 Sim. 615, note; 11 Sim. 592; 16 Sim. 210; and Attorney-General v. Drummond, 1 Drury & Warren 368; 1 Connor & Lawson 210; 1 H. L. Cas. 837,--(commented upon in The Dublin case, 554-560; Robertson v. Bullions, 11 N. Y. 257-262; Smith v. Nelson, 18 Vt. 554; and Story Eq., sec. 1191 a., and note),--it was held that there was a presumption that certain grantors had not intended the propagation of Unitarianism, because that religion was unlawful when the conveyances were made: it was presumed that the grantors did not design, by their bounties, to disseminate the criminal principles, and promote the commission of the crime, of Unitarianism. But under our constitution, Trinitarianism and theism being as lawful as Unitarianism, that presumption cannot be applied in this case.

**195 The provincial act of 1714 did not limit the power of towns (towns then being parishes) in the choice of ministers. The act of 1791 provided that each “town may, agreeably to the constitution, grant and vote such sum or sums of money as they shall judge necessary for the settlement, maintenance, and support of the ministry,” without undertaking to ratify or modify the parochial elective power. The act of 1819 repealed the act of 1791 so far as it made towns parishes, and provided that religious societies might become incorporated with the same power of raising money by taxes upon the polls and ratable estates of the members that had been possessed by towns in relation to parochial affairs, and gave the parochial assessors and collectors of taxes the powers belonging to town assessors and collectors. This act merely transferred the parochial nature from towns to other corporations voluntarily organized. So far as parochial independence, in theology and the choice of public teachers, is concerned, there is no difference between towns as they were before 1819, and other parochial corporations as they have been since 1819. N. Market v. Smart, 45 N. H. 87, 101, 102; Princeton v. Adams, 10 Cush. 129, 133. In the language of the constitution and of our laws, the terms “parish” and ““religious society” have the same meaning and effect. Sutton v. Cole, 8 Mass. 96, 98.

The third section of the act of 1819 provided that “each religious sect or denomination of christians in this state may associate and form societies.” The word “christians” was used in the general sense in which it is used in the constitution. “Denomination of christians” is synonymous with the preceding words “religious sect.” “Religious sect” is not qualified by “of christians;” ““““““““each religious sect” “of christians” would imply that there are sects of Christians that are not religious, which is wholly inadmissible.

And it cannot be supposed that, in the year in which Governor Plumer retired from public life, regarded by the majority of the voters of the state as “the Nestor of the politicians of that generation,” the legislature to whom his last message was addressed excluded him from the benefits of this section, and prohibited him from becoming a member of a parochial *232 corporation. If a plot thus to dishonor the foremost politician of the day in this state had been suspected, it would have been defeated with signal marks of indignation. And it is now quite too late, after the lapse of half a century, to force upon legal language a theological, technical meaning, subversive of the constitutional system of religious equality, which the legislature must be presumed to have maintained. The same language is used in the act of 1827, entitled “An act empowering religious associations to assume and exercise corporate powers,” under which this Dover parish was incorporated, and which is only an expanded copy of a part of the act of 1819. In the condensation of the statutes in 1842 and 1867, the word “Christians” was omitted, not because any change in the law was intended, but because, in the acts of 1819 and 1827, the word had no force as a term of limitation, and, in the revisions, superfluous words were often omitted.

**196 The legislature may authorize parishes to “admit members,” as was done in the acts of 1819 and 1827; and under that authority, and without it, parishes may refuse to admit as members those who do not accept certain creeds. But a parish which should restrict its membership would have the same constitutional power to elect public teachers of any and all denominations, as if its membership were unrestricted. For instance, this parish might have applied a Unitarian test to its members; but the members would still have retained the right of electing Trinitarian or theistic public teachers. And the electoral power would not be destroyed or curtailed, if the legislature should directly prescribe the qualifications, and regulate the admission and expulsion of members. Tests of membership may affect the practical exercise of the power, but not its legal existence. So that in whatever sense the word “Christians,” in the act of 1827, is to be taken, it does not touch the right of electing public teachers. The act of 1827 declares that parishes organized under that act “shall have authority to choose all such officers, and make and ordain all such by-laws and regulations as may seem expedient or convenient for the due government of such society, and the management of their funds.” If this provision authorizes the election of public teachers, it is, to that extent, an unnecessary ratification of the constitution: if it does not authorize such election, there is no allusion in this or any other general law to the subject; and there is no special statute in any way relating to this parish.

The articles of association of this parish are dated Sept. 4, 1827, and are as follows: “Believing that the public worship of God has a salutary influence upon society by awakening and diffusing moral and religious affections, and considering there are many persons in this place who are unprovided with such means of religious instructions and accommodations for public worship as are most congenial with their own convictions of truth and duty,--Therefore the subscribers, for the mutual and better accommodation in the premises, do hereby unite and form themselves into a religious society by the name and *233 style of ‘The First Unitarian Society of Christians in Dover,’ and do hereby agree to be governed in their said associate capacity by such rules and by-laws as said society shall from time to time establish. Such persons as are desirous of uniting with them, may become members of said society by subscribing this agreement.”

This agreement, and the by-laws of the parish, are as free as the statutes from all efforts to abrogate or qualify the elective power. If the signers of this agreement had entered upon the task of repealing the constitution of the state, it cannot be supposed that they would have confined their exertions to the selection of their corporate name. And if we presume that they were men of ordinary understanding, it is as incredible that they engaged in such an enterprise at all, as that, being engaged in it, they left no other record of their adventure than the usual appellation of a common sect, who were known to be strongly opposed to the prevailing theology, and were regarded as infidels, but were not suspected of harboring a design against the constitution.

**197 The legal purpose and effect of the corporate name of a town and a parish are the same; they have not changed since the time when towns were parishes; and they are stated in the acts of 1819 and 1827, which provide, in a usual form, that a parish may “assume a name and style by which such society may be known and distinguished in law,”--not a name by which the opinions of the first members may be known and distinguished in theology, nor a name by which a vain attempt to destroy the constitutional theological independence of the corporation might be held in remembrance in after times. Case of Sutton's Hospital, 10 Rep. 32, a, b; Co. Lit. 250 a, note A; Reg. v. R. J. S. Co., 10 A. & E. (N. S.) 839, 844; Minot v. Curtis, 7 Mass. 441. There is no legal presumption that the first members assumed a corporate name for any other purpose than that authorized by the statute under which they formed themselves into a corporation. And if there is a presumption of fact that their adoption of the Unitarian name indicated, with more or less accuracy, their theological opinions, and their intention to exercise their constitutional elective power by choosing Unitarian public teachers as long as they should retain the same opinions, it would still be a strained and far-fetched conclusion, and an unwarranted impeachment of their intelligence, to hold that they intended, by means of the name, to abdicate their own constitutional right, and also to reveal an absurd conspiracy to overthrow that part of the constitution which guaranteed to their successors, as well as to themselves, “the exclusive right” “at all times” “of electing their own public teachers.” So remarkable a scheme as that is not in the record, and cannot be presumed.

If the question were, whether the legislature or this corporation had entertained any project or made any movement against the constitutional guaranty of parochial freedom, they would be acquitted. But no action or purpose of the legislature or the parish is entitled to any consideration in this part of the case, since, if it had been declared in the act of 1827 that all parishes, and, in the articles of *234 agreement, that this parish, should be free and independent, and might elect Trinitarian, Unitarian, or theistic public teachers, such a declaration would have been superfluous; and if it had been declared that none but public teachers of the denomination of the first members should ever be elected, such a declaration would have been void. The right of this parish to elect a Trinitarian or a theistic public teacher is a constitutional right; and that right includes the right to hear him preach doctrines subversive of Unitarianism. And, as the greater includes the less, the right of electing a Trinitarian or a theist to the office of parochial public teacher includes the right “to hire, employ, allow, suffer, or permit” such a person, without a formal election, to preach anti-Unitarianism to the parish or to those members of the parish who choose to hear him. The answer to the first question raised in this case is, that this parish has the corporate power “to hire, employ, allow, suffer, or permit said Francis E. Abbott, or any other person, to preach and inculcate, in the meeting-house of said society, doctrines subversive of the fundamental principles of” Unitarianism.

**198 II. The next question is, Did the parish, in the exercise of its corporate power, “hire, employ, allow, suffer, or permit said Francis E. Abbott” to preach theism “in the meeting-house of said society”? Upon this question there seems to be no difference of opinion. By the decree, three of the defendants as wardens, “and all other wardens and members of said society,” are “jointly and severally strictly enjoined and forbidden to hire, employ, allow, suffer, or permit said Francis E. Abbott, or any other person, to preach and inculcate, in the meeting-house of said society, doctrines subversive of the fundamental principles of” Unitarianism. This means, for one thing, that theism is subversive of Unitarianism, and that the wardens and other defendants, members of the parish, and constituting the majority of it, did “hire, employ, allow, suffer, or permit said Francis E. Abbott” to preach theism “in the meeting-house of said society.” The decree, running as it does against the wardens and all other members of the parish, and forbidding them to exercise the constitutional corporate power of allowing theism, Trinitarianism, or any other form of anti-Unitarianism to be preached in the meeting-house of the parish, will hardly be sustained by an allegation that the power thus destroyed was not exercised by the defendants. The fact that they, the majority of the parish, did exercise it, is the only occasion there could be for destroying it. The power is destroyed by the decree: whether it is destroyed because the majority exercised it, or because they did not, is a matter of no general interest or importance.

The evidence shows that the inference, unavoidably drawn from the terms of the decree, is correct: the power is destroyed because the majority did exercise it. On the 30th day of March, 1868, the parish “Voted, That the wardens shall adopt such measures as they may deem best for supplying the pulpit with preaching the ensuing year.” On the 13th of April, a resolution was offered authorizing and instructing *235 the wardens “to hire Rev. Francis E. Abbott to preach in this church the ensuing year,” which was rejected by a majority of one. And at the same time it was voted “That the wardens be authorized and instructed to employ none other than Unitarian Christians to supply the desk in this house.” This last vote was specially aimed at Abbott, who had declared himself to be neither a Unitarian nor a Christian. On the 27th of April, the animated contest between the two parties, into which the parish was divided on the question of employing Abbott another year, terminated in the success of the defendants. Both parties had received accessions of persons who had recently become members of the parish, and on that day both were thoroughly organized for the election of wardens, and there were no scattering votes. The wardens voted for by the defendants were elected by a small majority over the candidates of the plaintiffs' party. That final vote was decisive of the question that had agitated the parish. It showed that the defendants were the majority, and as such could employ Abbott. But at the same meeting, instead of appropriating the pulpit solely for his preaching, as they might lawfully have done, they passed the following compromise resolution:

**199 “Whereas, differences of feeling and sentiment have arisen and now exist among the members of the ‘First Unitarian Society of Christians in Dover,’ so much so that a division of the society seems imminent,--Now, therefore, for the purpose of conciliating and harmonizing said differences, Resolved, That each of the two divisions of said society be entitled to the use of its meeting-house one half of the time, alternating each Sabbath forenoon and afternoon, and that each division may have the use of it at any time when not used by the other; and in case both divisions should desire to use it the same evening, that division which the last preceding evening had the use of it shall yield to the other; and that the pew rents be applied to lighting and heating the house.”

This resolution was a rescission of the former vote which instructed the wardens to employ none other than Unitarian Christians, because it was totally inconsistent with it, as a vote to pay a salary of $2,000 would be a rescission of a vote to pay a salary of $1,000; and it was so understood, and for that reason the plaintiffs' party voted against it. It was an election of two public teachers,--the one who was the choice of the majority, known to be Abbott, and the one whom the minority should select,--each one to be paid by the division selecting him. The plaintiffs in their bill allege that the wardens and the other defendants, except Abbott, since that vote, “have suffered, allowed, encouraged, and employed said Abbott * * to occupy said house and the pulpit.” The “two divisions of said society, named in the compromise resolution, are as distinct and well known as the society itself, and the majority division, according to the allegation of the bill, employed Abbott to preach one half of each Sunday, as they were authorized to do by the resolution. One of the plaintiffs testifies that one of the defendant wardens admitted that he permitted Mr. Abbott to preach *236 in the house in accordance with the vote of the society.” The accusation of the plaintiffs being that the majority division had employed Abbott to preach in the house, this testimony is introduced by the plaintiffs to prove that one of the defendant wardens admitted the truth of the charge. As the parish has had preaching but one half of each Sunday for ten years past, no complaint is made that the resolution deprives the minority of any desired opportunity of public worship. The resolution has not been rescinded, and is still in force as a valid vote and decision of the corporation. Upon the strictest legal principles, that resolution and the action of the majority under it were an election of Abbott to the office of parochial public teacher, on the conditions named in the resolution. What would become of Quaker preaching and the rights of Quaker societies, if any other election of their public teachers than a silent consent were necessary to the legality of their own preaching in their own meeting-houses? The majority of a Methodist parish elect the public teacher whom the bishop appoints, by listening to his preaching, and not electing any one else; and that silent consent of the majority is as good as a more formal election, however much opposition may be made by a minority. Suppose, in a parochial corporation of Methodists occupying a meeting-house placed by will or deed under its unrestricted parochial control, the majority “allow, suffer, or permit” the public teacher sent by the bishop to preach in the house, without any formal election or any corporate vote of any kind; and a dissatisfied minority apply for an injunction on the ground of informality of election: the court would not stop that preaching and command the majority not to “allow, suffer, or permit” it to go on. The majority of a parochial corporation may ““allow, suffer, or permit” a person sent by a bishop to fill the office of public teacher of the corporation; and, as the whole of a right includes a part of it, the majority may “allow, suffer, or permit” him, without filling that office, to preach in a pulpit of which the parish has unrestricted parochial control. The compromise resolution of this Dover parish authorized the majority to do what they did. It was a vote to “allow, suffer, or permit” the majority ““““““““to hire” and “employ” “said Francis E. Abbott, or any other person, to preach and inculcate in the meeting-house of said society doctrines subversive of” Unitarianism. On the 30th of March, the parish authorized the wardens to supply “the pulpit with preaching the ensuing year.” The parish could give that authority to the two divisions of the parish as well as to the wardens; for it has as clear a right to allow two persons, severally selected by the two divisions of the parish, to preach in its pulpit, as to allow one selected by the wardens or by a Methodist bishop to preach there. The wardens were of the majority: the wardens and the majority concurred. Against their concurrent action the bill was brought and the decree made. The will of the majority, that Abbott should preach what doctrines he pleased “in the meeting-house of said society,” was manifested so clearly that the minority brought this suit to prevent the majority allowing anti-Unitarianism to be preached in the house. And *237 the decree does not proceed on the ground of any informality in the manner of allowing anti-Unitarianism to be preached there. It deals not with things formal or temporary. It is perpetual and unconditional. It forbids the present wardens, “and all other wardens and members of said society,” “to allow, suffer, or permit,” even by unanimous vote, “said Francis E. Abbott, or any other person, to preach” Trinitarianism, theism, or any other religion subversive of Unitarianism, “in the meeting-house of said society.” In that house religious liberty and parochial independence are suppressed forever.

**200 The plaintiffs, in argument, claim that the right of parochial independence (destroyed by the decree) was not exercised by the defendants, because “their acts make them seceders from the Unitarian society, and entitle the plaintiffs to possession of the meeting-house to their exclusion.” This claim is refuted by the decree, which does not disfranchise the defendants for secession, nor exclude them from the possession of the house or the control of the corporation, nor transfer the possession or control to the plaintiffs, but runs against all members of the corporation, and forbids them to allow anti-Unitarianism to be preached in the house. If the defendants had seceded from the corporation, and ceased to be members of it, the decree, instead of forbidding them to allow anti-Unitarianism to be preached in the house, would have forbidden them to exercise any control over the house, or to vote or take any part in the meetings of the corporation, and thus would have given to the plaintiffs' party the corporate control and possession to which they claim to be entitled. As the decree leaves the defendants in the control of the corporation and its house, with power “to hire, employ, allow, suffer, or permit said Francis E. Abbott, or any other person” selected by them, and not by the plaintiffs, to preach Unitarianism in the house, or to allow no one to preach there, it is not necessary to examine the question of secession thus decided by the decree in favor of the defendants.

Moreover, if the defendants were seceders from the corporation and not members of it, the bill should be dismissed, because it can be maintained only on the ground that they are members of the corporation, controlling it or its property in an unlawful manner. If they were not members, they would be mere trespassers, and an action at law would lie, or the police could be called in to protect the house against invasion: there would be nothing in the case to give us chancery jurisdiction. When there is a plain and adequate remedy at law, and the plaintiffs' right has not been established at law, a bill for an injunction does not lie to prevent a simple trespass.

Furthermore, the evidence shows that the decree is quite right in deciding this point in favor of the defendants. The defendants (except Abbott, who is not and never was a member of the corporation) form one of “the two divisions of said society” referred to in the compromise resolution. They were one of “the two divisions” when they passed that resolution, elected the present wardens (described as wardens in the bill and in the decree), and gained the control of the *238 corporation; and they still remain one of those ““““““““divisions,” unless, since that time, they have ceased to be members of the corporation. Ordinarily, it would seem that living members of a corporation would not lose their membership, unless by some regulation of the corporation, or of the legislative power that creates the corporation, or by the exercise of some expulsive power on the part of the corporation, or by the intentional withdrawal of the members themselves. Keith v. Howard, 24 Pick. 292, 295; Taylor v. Edson, 4 Cush. 522. In this case, the majority and the minority became members of the parish by signing the agreement of organization, which is the only test and qualification of membership. It is not denied, in the bill or decree, that the majority legally and rightfully became members. And it is not pretended that there is any statute of the state or by-law of the parish which has destroyed their membership, or that they have suffered themselves to be expelled by the minority.

**201 The act of 1827, and the present law, provide that members may withdraw by leaving a written notice with the clerk, and paying their parochial taxes. “The most perfect freedom in withdrawing from any such parish or religious society is given by the statute; but the mode of withdrawing is expressly pointed out; and it is a regulation which ought to be enforced, otherwise the greatest uncertainty would exist as to the persons who may be entitled to the rights, or subject to the liabilities of membership. The mode is easy, simple, and definite. It is by leaving a written notice with the clerk of the society from which the party is desirous of seceding.” Jones v. Cary, 6 Me. 448. It was held in that case that the plaintiff, not having given the written notice, had not seceded from a parish of which he was once a member, although he had not been in the habit of attending public worship with the parish for ten years, and had, for a long time, usually attended, and contributed to the support of, the meetings of a parish of another sect. The majority, in the case before us, have not chosen to avail themselves of the privilege of secession allowed by law, and they are still liable as members to parochial taxation, and have a right to vote. Oakes v. Hill, 14 Pick. 442, 447, 448; Keith v. Howard, 24 Pick. 292, 295, 296.

A defeated minority may have a motive to retire; but a victorious party, after a severe struggle in the secure occupation of the ground which was the sole object of contest, do not usually abandon that ground to their antagonists. The struggle between these factions consisted of a very earnest effort of each to obtain the control of the pulpit, by carrying the election and obtaining the control of the corporation. The single point in controversy was, whether Abbott should be allowed to preach “in the meeting-house of said society.” The defendants' party prevailed, and obtained the control, and, under a vote of the corporation carried by that party, Abbott was preaching there when the minority commenced this suit. How much evidence would be necessary to prove that the majority withdrew from the corporation as soon as they had gained the control of it, under these circumstances, is a subject of imagination: there is no evidence of that kind in the *239 case, and there is a very great amount of evidence to the contrary. By gaining and keeping the control of the corporation, the majority effectually manifested their intention not to secede from it. The circumstance that disturbs the plaintiffs is, that they being the minority, and the defendants being the majority, the majority have not seceded. The minority have resorted to this lawsuit because the majority have not fled. Why have the minority brought this suit, why are they here, what relief do they want, if the majority have run away from the corporation and left the minority in the control of it? And why does the decree leave the majority in the control of it, and forbid them, as “wardens and members of said society,” “to hire, employ, allow, suffer, or permit said Francis E. Abbott, or any other person, to preach” anti-Unitarianism “in the meeting-house of said society,” if they are not members of the society, and have no right “to hire, employ, allow, suffer, or permit said Francis E. Abbott, or any other person, to preach” anything in its house? If the defendants were deserters and not members, would that be a reason for decreeing the destruction of the independence of the parish? The decree, in the handwriting of the judge who is to write the opinion of the court of which the decree is the conclusion and result, drawn with fulness and precision, upon deliberate consideration, after the oral announcement of the decision, is, in substance and form, the authentic record and judgment of the court; and it is based on the unquestionable fact that the defendants have not seceded.

**202 The plaintiffs claim that the majority “have left the Unitarian denomination,” and thereby manifested an intention to cease to be members of this corporation. But this corporation, like every other incorporated parish, by virtue of the paramount article of its charter established by the constitution, has “at all times” the right of electing Trinitarian, Unitarian, and theistic public teachers, and to hear those teachers preach their own doctrines every Sunday in the year. Such a parish is not, in law, a denominational corporation. While the majority of a parish continue to entertain the faith of a particular denomination, and to elect public teachers to inculcate that faith, the parish may, for some purposes, be properly called by the name of that denomination; but for any legal purpose, the denominational name has no significance or force, because the constitutional power of the parish is not limited by the corporate name. And as the members of a so-called Unitarian parish may be Trinitarians, or theists, and, whatever they are, may elect a Trinitarian public teacher, or a theistic public teacher, or both, it is irrational to say that, if a majority should exercise that constitutional right, they would thereby manifest an intention of withdrawing from the parish. It might as well be said that the exercise of any other parochial power is secession.

If a member of an unincorporated Unitarian church should become a Trinitarian and join a Trinitarian church, such conduct, in the absence of other evidence and in the absence of express statute, by-law, or agreement, might be sufficient to show his intention to withdraw *240 from the Unitarian church. His intent would be a matter of fact to be ascertained from evidence, and the antagonism of the two churches would tend to prove that he did not wish to belong to both at the same time, and he might have no expectation of revolutionizing the Unitarian church by converting a majority of its members to his views. But there is no similarity between the position of such a person in a hopeless minority in a Unitarian church, and the position of the majority of this parish who are in full and absolute control of the corporation.

The evidence on the question of intent, in the present case, is all on one side. The majority intended to remain members of the parish, and to constitute one of “the two divisions” of it; and whether they formed any other society or not is immaterial. They intended, as one of “the two divisions,” and the majority division, to employ Abbott to preach, under the compromise resolution. And because they insisted upon retaining that position, he has, since the commencement of this suit, abandoned them, and refuses to be employed by them or to preach in the meeting-house. The plaintiffs assert that the majority “actually organized themselves into an association distinct from and antagonistic to” the parish. Both parties certainly may organize as many distinct and antagonistic associations as they please. The majority, having the right to allow a theist to preach in the house, have exercised that right, and if they had also formed a theistic association, incorporated or unincorporated, no antagonism would have arisen. The plaintiffs, in their bill, complained against all the defendants except Abbott, as persons “claiming to be members of the” parish, “and as members of an independent religious society” distinct from the parish. It might well be supposed that “religious society,” the name given by the statutes to an incorporated parish, was used, in the bill, in the statute sense; and as the defendants were not members of any “religious society” distinct from the parish, in the sense apparently intended in the bill, their counsel, in pleading, properly traversed that part of the bill; and the evidence sustains the denial. Some of the defendants associated themselves together for the purpose of raising funds for Abbott's salary, and attempting (in vain, as it turned out) to satisfy his scruples, but without any purpose of ceasing to be members of the parish, or surrendering the control of it, or giving up the right to occupy the house under the compromise resolution. The idea of their intending to withdraw from the parish, cease to be members of it, and throw away the fruits of the victory they had just won, is, under the circumstances, simply preposterous; and the decree so treats it. Neither the formal validity of the proceedings allowing Abbott to preach in the house, nor the membership of the majority, is controverted by the decree, which runs against all members of the corporation, the majority and the minority, and forbids them ever, even by unanimous vote, “to allow, suffer, or permit said Francis E. Abbott, or any other person, to preach” anti-Unitarianism “in the meeting-house of said society.” In that house, the constitutional freedom of the parish is struck down for all time.

**203 *241 III. The next and last question is, whether there is any sectarian trust or limitation attached to “the meeting-house of said society,”--whether the use of the meeting-house of the parish is confined within any narrower theological lines than those of parochial power. The answer to this question it is not difficult to find or to grasp. A meeting-house, or the control of a meeting-house, given, without restriction, to an independent parish, is given to parochial independence. That is the leading idea in what remains of the case to be considered.

It is perfectly easy for persons giving their own private property to a religious use, to limit that use, and devote the property to a particular faith. Princeton v. Adams, 10 Cush. 129; Guild v. Richards, 16 Gray 309. They need no professional assistance or technical learning to supply them with a peculiar phraseology. Any intelligible language will answer the purpose. They can have no difficulty in saying, in some comprehensible form, that they intend the dissemination of the thirty-nine articles of the English church, or the Westminster Catechism; the doctrines of Luther, or Loyola, of Edwards, or Channing, or Jefferson; the tenets held by some sect at a certain time, or such as it may hold from time to time in the course of its existence in a changing world. If they intend a theological limitation, they will express it; and then the court may be called upon to decide, by legal rules settled by the wisdom of ages, not what the true faith is, but what limitation is expressed by the words used. The Dublin case, 38 N. H. 510, 563. But when the builders of a meeting-house carefully avoid imposing any theological limitation, and put it under the unrestricted parochial control of an independent parish, as was done in this case, they devote it to the independence of the parish, and a judicial imposition of a sectarian limitation is a plain breach of trust.

The plaintiffs in the bill, and the court in the decree, describe the house as “the meeting-house of said society.” And this description expresses the unanimous opinion of all parties, their counsel, and the court. For all the purposes of this case, the house is “the meeting-house of said society.” The corporation has the absolute parochial control of it, including the right to allow such preaching as it could allow, if, in addition to having the absolute control, it were the absolute owner. On this point, as the bill, arguments, and decree show, nobody has any doubt. Being the meeting-house of the parish, the building has no theological character other than what it derives from the legal character of the corporation that has the control of it; and it cannot derive from the corporation a character that the corporation does not possess. Being the meeting-house of the parish, it is free from all sectarian trusts and limitations, because the parish, a creature of law, is not, in law, a sectarian corporation,--is not sectarian in its corporate nature. The legal character of the parish, being no more Unitarian than Trinitarian or theistic, the free character of the parish belongs to all property of which the parish has the full parochial control. Unitarian, Trinitarian, and theistic uses of the house are equally within the scope of parochial power; and the parish can appropriate *242 it to such uses because the parish has the absolute parochial control of it.

**204 The control of the house belongs to a corporation that has a right “to allow, suffer, or permit said Francis E. Abbott, or any other person, to preach” anti-Unitarianism in its meeting-house? Where are the constitutional religious rights of a parish to be exercised, if not in its meeting-house? These sacred rights are not abstractions. They must be practically associated with rights of property in a meeting-house, or some other terrestrial thing. The enjoyment of them cannot be separated from the occupation and use of real estate; for real estate extends, in contemplation of law, from the centre of the earth usque ad cœlum, or indefinitely above and below the surface. Individuals can enjoy their rights, so far as legality is concerned, in their own houses,--their own in the sense of being in their legal control. Whether they have the title and the control, or the control only, is immaterial: mere title is nothing for this purpose: control, right of use, is indispensable. For religious uses, a house owned by A, and let by him to B as tenant, or held by A in trust for B's use, is the house of B, and not of A. For religious uses, this meeting-house is the meeting-house of this parish. The functions of the parish capable of being exercised in a meeting-house, can be lawfully exercised in the meeting-house of which the parish has full parochial control. The control of this house was given to this corporation by a vote that did not impose the condition that the parish should not exercise its functions in the house. What is the control of a meeting-house given to a parish for, if not for the enjoyment of the constitutional religious rights of the parish? When the control of a meeting-house is given to a parish, without a stipulation against the enjoyment of those rights in the house, the enjoyment of them there can be forbidden only by a super-constitutional power destroying the rights themselves.

As all parishes necessarily derive an independent nature from the constitution, it may be doubtful whether equity would not restrain a parish from encumbering its property with a trust calculated and evidently intended to destroy or impair the independence of the parish by limiting its electoral power. And it may be very doubtful whether equity would enforce the execution of a trust of that kind. Such a trust would be a palpable attempt to nullify the supreme article of the parochial charter, and a direct attack upon the public policy of parochial freedom established in the constitution; and there might be a question whether the creation of such a trust is within the parochial power. It might be said that a minority had an interest in preserving the corporate property free from a denominational trust, and that such interest was so secured that the destruction of it by the majority was not one of the purposes for which the corporation was created. It would hardly be claimed that a town could legally cause its town-house, purchased or built with town funds, to be conveyed in trust for the use of the town, on the condition or with the restriction that the town should continue to elect representatives of a specified political party. And it might be *243 impossible, in principle, to distinguish that case from a conveyance, by a parish, of its meeting-house, purchased or built with parochial funds, in trust, for the use of the parish, on the condition or with the restriction that the parish should continue to elect public teachers of a specified religious denomination.

**205 An individual may convey his property in trust, for any stipulated legal use, personal or corporate, private or public, special or general, ecclesiastical, sectarian, educational, or commercial. And “it would be the duty of this court, on a proper application, to see that the trust was executed according to the intention of the donor, provided that his intention was expressed so plainly that it could be legally ascertained. When the intentions of the donor, as to the religious opinions which he means shall be supported, are expressed in general terms, and the disputed construction of those terms depends on an examination of religious doctrines and the history of theological opinion and controversy, the inquiries upon which the court are obliged to enter are of an unusual and embarrassing character. What is theologically true in religion, it is agreed on all hands that the court are not competent to decide; nor have they power to determine what is really and intrinsically substantial and essential in matters of doctrine. The difficulty of considering in legal tribunals questions which depend on such inquiries has led courts to act upon the rule that they will not interfere with the application which a trustee has made of a fund given to a religious use, upon the ground that the donor intended to limit the application of the fund, unless the intention to exclude the opinions to the support of which the fund has been applied has been plainly expressed by the donor. Courts of law are, by their habits and constitution, ill fitted for the investigation of such questions; and it will not be supposed that the founder of a religious charity intended the trustee, whom he selected to administer his charity, should be called to account in the legal tribunals for a misapplication of the funds to the support of religious opinions different from those intended, unless he has used appropriate and explicit terms excluding the doctrines to which the fund has been applied.” The Dublin case, 38 N. H. 509.

In that case, the court had occasion to repeat the elementary rule that “The individual religious opinions of the donor cannot be received to enlarge or contract the meaning of general terms used in the instrument by which he established the charity.” Id. 551-562. It is not a little extraordinary that it should now be necessary to repeat again the rule “which excludes parol evidence to vary or control a written instrument,” especially in a case in which the statute of frauds requires the donor's intention to be proved by some writing signed by him. Vidal v. Girard's Executors, 2 How. U. S. 127, 197; Storke v. Storke, 3 P. Wms. 51, 52. If such evidence were received, one deed signed by a Unitarian, and another deed, composed of the same words, signed by a Trinitarian, might establish entirely different trusts; two deeds, fac-similes, executed by one person at different periods of his life when he belonged to different sects, might be construed to express opposite *244 intentions; than which nothing could be a more absurd legal result. Attorney-General v. Drummond, 1 Drury & Warren 353, 370. Attempts in this class of cases to introduce such evidence, when there is no ambiguity, are exhibitions of the intrepidity with which sectarian zeal, worked up to an intemperate pitch, is capable of arraying itself against law and order, as if it were thought possible for the court to be carried away from their duty and their oaths by the ardor of a religious crusade.

**206 In The Dublin case, the plaintiffs claimed that the word ““Congregational” was used by one of the Congregational sects, in 1817, in a peculiar sense, and that the public instructions of the founder of the trust, and his connection with that sect, tended to show that he used the word in the peculiar sense. And if a sectarian trust were now created with a ““““Congregational” limitation, evidence of that kind might show a latent ambiguity. By parol evidence, two meanings might be shown, and the one intended by the founder could be proved. In The Dublin case, it was not shown that the term “Congregational” was used by any sect of Congregationalists, at the time and place in question, in any peculiar sense different from the common and generic meaning--pp. 471, 480, 551. In the present case, it cannot be claimed that there is any latent ambiguity, or that any language has been used in any peculiar or conventional sense, or that there is any pretext for receiving parol evidence in violation of those general and fundamental principles with which all lawyers are familiar. And yet a large quantity of parol evidence has been taken, nearly the whole of which is inadmissible under the primary rules of evidence so recently and pointedly reäffirmed in The Dublin case. A great mass of testimony, concerning the origin and early history of the parish, and the proceedings and religious opinions of its members, and the opinions of other persons and of Unitarians generally, is so clearly incompetent, that nothing should be allowed in the taxation of costs for obtaining it.

The statute of frauds,--act of Feb. 10, 1791,--which was in force at the date of the deed of the lot on which the meeting-house stands, provided “That all grants and assignments, and all declarations and creations of trusts or confidences, of any lands, tenements, or hereditaments, shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none effect,”--implied trusts excepted. If any trust was attached to this meeting-house, it can be proved only by some writing signed by the party who declared the trust. The religious sentiments and conduct of the party declaring the trust, and of all other parties, are irrelevant and immaterial, and are excluded from our minds by the elementary common-law rule of evidence, and by the statute of frauds. Graves v. Graves, 29 N. H. 129; Farrington v. Barr, 36 N. H. 86; Moore v. Moore, 38 N. H. 382.

The deed of the meeting-house lot is dated June 10, 1828, is signed by the Dover Manufacturing Company, and, in consideration of $1,000, *245 acknowledged to have been paid by H., C., A., P., and O., “trustees of the first Unitarian Society in Dover, duly chosen by said society,” conveys the lot to said H., C., A., P., and O., “trustees as aforesaid, and their successors, which from time to time may be chosen by said Unitarian society in their places, or the places of any of them, whenever the same, from any cause, may or shall be vacant. * * To have and to hold said granted premises in trust for the use of the stockholders or proprietors of the meeting-house to be erected thereon, their heirs and assigns, and under such regulations, conditions, and restrictions for the sale and occupancy of the pews in said house, and for the use, care, custody, and control of said house, as may be prescribed by a majority of the votes of said stockholders, at any time previous to the sale or disposal of the pews in said house, in all cases counting one vote to each share of the stock represented in said house.”

**207 It is probably immaterial that the word “Christians,” which the plaintiffs consider so important a part of the name of the parish, is ominously omitted in this, the only deed under which the parish claim any right to use the house. A material fact is, that the instrument conveyed to the parish no right whatever in the lot or house, either of title or use. Certain persons elected by the parish, and called trustees, were made the legal depositaries of the bare title--the dry legal estate--without any control of the property or right to use it. But in the deed the parish was neither a trustee nor a beneficiary. Another important circumstance is, that the beneficiaries were not described by any sectarian name, or required to hold or profess any religion whatever. They were such unnamed and unknown persons as might, by their contributions, aid in building a meeting-house on the lot, and who were designated as “stockholders or proprietors of the meeting-house to be erected thereon.” These contributors, called “stockholders or proprietors of the meeting-house,” were not required to subscribe a list of theological articles before giving the money with which the house was built. Toleration prevailed so far as to allow anybody to be a contributor. The contributors might be, and, according to the elementary rule confirmed in The Dublin case, we have no right to know that they were not, all Trinitarians or theists. The lot was conveyed in trust for their use, and no other use was declared in the deed. So far as any trust was attached to the lot and house by this deed, it was neither Unitarian nor Christian.

“The use of the stockholders or proprietors of the meeting-house to be erected” on the lot was not a denominational use. It was a use as free and unlimited as the corporate power of the parish. It is immaterial, and we are not permitted by law to know, whether any of the so-called stockholders were ever members of the parish, or whether they had any theological opinions. The nature and extent of the trust are to be proved by the deed from the Dover Manufacturing Company,--the party who declared the trust,--and by no other evidence, according to the statute of frauds, and the rule “which excludes parol evidence to vary or control a written instrument.” The use of the so-called *246 stockholders--the only trust declared in the deed--would have been the same if the directors of the Boston & Maine Railroad had been made trustees, because the trustees have no power, use, control, or beneficial interest in the trust. The so-called stockholders, that is, contributors, whoever they might be, were the sole beneficiaries; and they might be, and for aught we can legally know, were, all Presbyterians or Freewill Baptists; and they were entitled to appropriate the house to miscellaneous preaching.

**208 Their use was to be under such regulations “for the use, care, custody, and control of said house as may be prescribed by a majority” of the contributors before the sale of the pews. And, on the 6th of March, 1829, before the sale of the pews, the contributors voted “That the general custody of said house shall be under the control of ‘The First Unitarian Society of Christians in Dover.” From that vote, and from nothing else, the parish derives its control of the house. A trust is not proved by the vote, for it is not “signed by the party who is by law enabled to declare such trust,” as required by the statute of frauds. But it seems to be regarded by all parties as a regulation, authorized by the deed, and valid and binding. Taking it to be so, what is its meaning? It evidently means, for one thing, that the independent parochial corporation (designated by its corporate name, as corporations usually are) shall control the house to the extent of deciding who may preach, and what theology may be preached therein, as it could if it had the title as well as the control. If the contributors had intended that the corporation should have any less control, in respect to theology, than it would have of a house built by a parochial tax, they would have expressed that intention in the vote by which they gave the control to the corporation. If the corporation had bought the meeting-house lot, and built the house with money raised by taxation instead of contribution, and taken a deed in its corporate name, being theologically an independent corporation, it would have had the right “to hire, employ, allow, suffer, or permit said Francis E. Abbott, or any other person, to preach” anti-Unitarianism “in the meeting-house of said society.” That anti-Unitarian right it has now: that right, the decree says, the members of the parish shall never enjoy.

The vote giving the control of the house to the parish was not dictated by the deed. The contributors could have retained the control, or assigned it to any other parish, or any other person or persons. They were under no fiduciary restraint in that respect. The rights of the parish in the house begin and end with the control given it by individuals who were under no obligation to restrain the pulpit to Unitarian preaching, and who, for aught we can judicially know to the contrary, were all Trinitarians or theists. By the terms of the deed, the regulation for the use, care, custody, and control of the house was to be prescribed by vote of the contributors. Their vote is in writing, and can no more be varied by parol than can the deed. If there is no latent ambiguity in it,--and none has been or can be suggested,--its meaning is to be ascertained from its terms and not inferred from *247 extraneous evidence of the theological opinions of the contributors or the members of the parish. The Dublin case, 38 N. H. 551-562.

**209 The name of the independent parish to which the control of the house was given by the vote of the contributors is “The First Unitarian Society of Christians in Dover.” Was a sectarian limitation of the control imposed by the non-omission, in the vote, of the name of the independent corporation to which the vote gave the control? Did the contributors, of legally unknown and immaterial theological opinions, in giving the control to an independent corporation, limit the control to Unitarian Christian uses, by not departing from the universal usage of calling a corporation by its corporate name? To give property, or the control of property, to this independent parish for its corporate uses, must anything more be done than to give the property or control to the parish? Must the donor go further, and say, “I give you this for the uses of the parochial independence guaranteed to you by the constitution of New Hampshire? Unless he delivers an oration on the subject, and expatiates upon his intention of aiding the parish in the enjoyment of its constitutional rights, will the court, in violation of the statute of frauds, in violation of the law of evidence, in violation of all legal principle and all rational probability, presume that he intended his gift for the benefit of the parish only upon a condition at war with those rights, and subversive of the constitutional character of the parish? Have constitutional religious rights fallen into such disrepute as to raise a legal presumption that everybody who does not declaim in their favor is plotting against them?

Under the recent decision of this court, in The Dublin case, a sectarian limitation must be expressed in plain, appropriate, and explicit terms; and the sectarian sentiments of individuals cannot be shown, by extraneous evidence, to control or vary a writing in such a case as this. “It is a general rule that corporations must take and grant by their corporate name.” 2 Kent Com. 292; 1 Bl. Com. 475; Bac. Abr. Corporations (C), 1; Angell & A. on Corp., sec. 99; Co. Lit. 250 a, n. (A). An intention to impose a sectarian limitation, in a transfer of the control of property to a corporation, is not plainly, appropriately, and explicitly expressed by designating the corporation by its corporate name, when it would be inconvenient to designate it in any other way, and when its name does not express its constitutional nature or the extent of its constitutional power,--when it is an independent and not a sectarian corporation. It is usual, in assignments, appointments, deeds, wills, leases, and licenses, to describe the assignee, appointee, grantee, devisee, lessee, and licensee by name. The use of a circumlocution as a substitute for the name would be a freak in which no one, knowing the name, would be likely to indulge. It would be unprecedented, useless, and troublesome. The omission of the name would be so extraordinary that it is impossible, from the presence of the name, to infer a special intent to create a sectarian limitation. When such a limitation can be imposed only by plain and explicit terms, and when the name is used for the purpose of identifying the independent parish, *248 the name, necessarily used for that purpose, is not an explicit declaration of another and totally different purpose, to wit, the creation of a sectarian limitation.

**210 Whether a corporation is eleemosynary or civil can be known only from its charter. “Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence.” Dartmouth College v. Woodward, 4 Wheat. 518, 636. Whether this parish is technically an eleemosynary or a civil corporation, it is authorized, by its charter, to apply its “property or the income and proceeds thereof to the objects of its own creation, and to no other objects; and it would be restrained by injunction from diverting its property to other objects. It would ordinarily be allowed to sell its property in good faith, but, at the suit of individuals interested, might be forbidden to devote its property, or the income or proceeds, to any purpose not within the legitimate sphere of its corporate power,--not within the line of the general purpose and object for which the parish was incorporated. March v. E. R. R., 40 N. H. 548; S. C. 43 N. H. 515; Durfee v. R. R., 5 Allen 230, 242; New S. Meeting-House Case, 13 Allen 497, 506, 510.

Dartmouth college, by its charter, was created expressly for educational purposes; and if land, or the use or control of land, were given to that corporation without any condition or limitation in the deed, and the corporation should undertake to appropriate the land, and its use, income, and proceeds, to commercial purposes, it might be restrained by injunction. A corporation is nothing but a franchise or capacity which individuals are permitted to exercise, though, in legal fiction, it is called an artificial person, or an invisible, intangible body, existing only in contemplation of law. The capacity called Dartmouth college is merely educational; the commercial capacity is only that which is a necessary incident of the other; and property given to Dartmouth college is given to an educational and not to a commercial capacity.

“The charter is granted, and, on its faith, the property is conveyed” to the corporation. “‘For the education and instruction of the youth’ * * the charter was granted.” “Dartmouth college is an eleemosynary institution,” “a seminary of education incorporated for the preservation of its property and the perpetual application of that property to the objects of its creation.” “The founders of the college contracted not merely for the perpetual application of the funds which they gave, to the objects for which those funds were given; they contracted also to secure that application by the constitution of the corporation.” “From the very nature of the case, * * there was an implied contract on the part of the crown with every benefactor, that if he would give his money it should be deemed a charity, protected by the charter, and be administered by the corporation according to the general law of the land. * * There was also an implied contract between the corporation itself and every benefactor, * * that it would administer his bounty according to the terms, and for the *249 objects stipulated in the charter.” Dartmouth College v. Woodward, 4 Wheat. 518, 627, 631, 641, 652, 689.

**211 In the present case, by the act of 1827, this Dover corporation was created as a parish or religious society, “capable in law to take, hold, and possess, to them and their successors, for the use and benefit of such society, by purchase, gift, grant, devise, or otherwise, any real or personal estate, for the purpose of erecting and repairing a house of public worship and a parsonage house, and other buildings necessarily connected therewith, and for supporting the ministry in such society.” The “house of public worship” is for the exercise of the “natural and unalienable right” which Article V of the bill of rights declares “every individual has,” “to worship God according to the dictates of his own conscience and reason;” and “supporting the ministry” is supporting “their own public teachers,” whom Article VI guarantees “the several * * parishes * * or religious societies shall at all times have the exclusive right of electing.” The act of 1827, and the bill of rights, are the charter or constitution of the parish, and, as we have seen, the parish, by its constitution, is free and independent, and not sectarian.

And now we have only to apply the law as laid down in the Dartmouth College case. The charter is granted, and on its faith the property is conveyed, and the meeting-house placed under the control of an independent parish. For the support of such public teachers as an independent parish might elect, the charter was granted. The independent parish was authorized to devote its property, and the property of which it might have the control, to the objects of its creation. The founders of the parish contracted to secure the application of the property by the constitution of the corporation. From the very nature of the case, there was an implied contract between the corporation and every contributor that it would administer his bounty according to the terms and for the objects stipulated in the charter. Those objects were the objects of an independent parish,--not manufacturing, mining, or hotel purposes, which would not be parochial;--but Trinitarian, Unitarian, and theistic purposes are within the sphere of parochial independence. Independence was guaranteed by the charter: the meeting-house was placed under the control of the parish, on the faith of the charter, and secured by the constitution of the corporation to the uses of independency.

In the Dartmouth College case, an act of the legislature was held unconstitutional and void, on the ground that it impaired the obligation of a contract. From the donation of property to the corporation, the contract was implied that the property should be applied to the legal objects of the corporation, upon which the donors were presumed to have relied. To that extent the doctrine of that case (whatever doubt there may be as to the application of it there made) is indisputable: a contract, limitation, condition, or trust, inconsistent with the character of the corporation, cannot be inferred from a donation of property to it. A donation of property, or the use or control of property, or an assignment of elective power, to an independent parish, is not, by *250 implication, encumbered with a perpetual sectarian restriction in conflict with the constitutional character of the parish. If there had been no constitutional guaranty of parochial freedom, and, by general or special act of incorporation, this parish had been constituted sectarian and not independent, the meeting-house placed under its control might have been devoted to the sectarian purposes of the sectarian parish. And the principle that would produce that result, dedicates the house to the independent purposes of the independent parish. Williams v. Williams, 8 N. Y. 525, 530, 535, and all the cases before cited on the question of parochial power.

**212 Suppose the inhabitants of a town harmonize on all political questions; the name of the town indicates their political views; some or all of them, in their individual capacities, purchase a lot of land, and cause it to be conveyed by trustees elected by the town, in trust, for the use of such persons as should contribute to build a town-house thereon, under such regulations of the use and control of the house as should be prescribed by vote of the contributors; the contributors, by vote, give the control of the house to the town; and, in course of time, the inhabitants adopt political opinions precisely opposite to those formerly held by them, and indicated by the name of the town: the court would not, by injunction, restrain the voters of the town from allowing political views subversive of their former opinions to be advocated in the house. It would be conclusively presumed that the intention was to give the control of the house to the town, for all the uses of a town-house within the sphere of all the corporate powers of the town, and not to restrict the use by the political signification of the name; that the name was employed in the vote of the contributors as the usual and most convenient means of identifying the donee, and not for the purpose of imposing on the use of the house a political doctrinal limitation. The material constitutional character of the corporation would be regarded, and not the immaterial political character of its name. And the constitution guarantees the political independence of towns no more explicitly or fully than it guarantees the ecclesiastical independence of parishes. This illustration is peculiarly satisfactory, because the towns of New Hampshire were parishes nearly two hundred years, and the independence of the parochial capacity, as it was in provincial custom and law, and as delineated in the constitution of the state, is the same, whether exercised by “towns, parishes, bodies corporate, or religious societies.”

“Where a congregation become dissentient among themselves,” said Lord ELDON, in Attorney-General v. Pearson, 3 Meriv. 400, “the nature of the original institution must alone be looked to as the guide for the decision of the court;” and the constitutional independent nature of the original institution of this parish must be our guide in this case. In England, the courts, while declaring their readiness to sustain dissenting congregations “according to their institution, if the doctrine preached is tolerated by law”--Davis v. Jenkins, 3 Ves. & B. 151, 158--have been greatly perplexed in ascertaining the nature of the institution of such congregations not incorporated nor in any *251 way connected with the ecclesiastical system of the state. But we labor under no embarassment in regard to an incorporated parish: its nature is far more plain and simple than a parish of the Church of England. A parish and minister of that church are, in the theory of the English law, as firmly bound by the established articles of religion, as a regiment by the army regulations. Its doctrines and discipline are enforced by the ecclesiastical courts of the same government that administers the discipline of the army and navy by military and naval tribunals. And, because the national ecclesiastical system is a part of the government which the people are presumed to sustain, the courts apply every fund given for the support of religion to the maintenance and propagation of the established religion of the country, unless the donor has directed otherwise. Attorney-General v. Pearson, 3 Meriv. 409; Attorney-General v. Calvert, 23 Beav. 248, 258; The Dublin case, 38 N. H. 557. The same rule is applicable here. Parochial independence being the established ecclesiastical system of the state, property given to, or in any way devoted to the use of, an unincorporated society, is presumed to be intended for the advancement of that system, in the absence of any legally expressed intention to the contrary. There is much less difficulty here, in applying property to its destined use, when it is placed by the donor under the control of a parish incorporated and therefore necessarily independent, than there is in England in applying to the use of the English church property placed under the control of a parish of that church: instead of construing the thirty-nine articles, we have only to ascertain what public teacher is the choice of the parish: his articles of religion this court is not authorized to inspect.

**213 The English courts, on the other hand, under the influence of sectarianism established by law, and accustomed to professed uniformity and stability of doctrine, discipline, and ritual, as the prominent features of ecclesiastical institutions, formerly presumed everything against the introduction of the slightest degree of parochial independence. So averse were they to the popular election of teachers of religion, that the election of a vicar of the established church by the members of a parish of that church was held to be so lamentable a mischief as to be a very fit subject for the interposition of parliament. Fearon v. Webb, 14 Ves. 13, 25. And a trust created for the benefit of a society having the right to elect public teachers of all denominations seemed to them such a chimera, that they could scarcely conceive it possible that it had been designed; and consequently it seldom occurred to them to inquire whether designs of that nature would be manifested by the natural and legal construction of the instruments by which religious trusts were established. Indeed, so thoroughly were they, in common with all other branches of the government, imbued with the spirit and addicted to the practice of a special sectarianism alleged to be apostolic and stationary, that they could have no adequate conception of absolute ecclesiastical independence as a parochial system. It was to them an anomaly and a puzzle. “It is very difficult to know what to do with *252 these dissenting societies,” said Lord ELDON, in Davis v. Jenkins, 3 Ves. & B. 151, 154. One of his difficulties was, that sectarianism had so long been the law and the practice of the country that he supposed the founders of those societies must necessarily intend to perpetuate some sectarian faith, and not to leave the societies at liberty to choose and change their own religious opinions. It did not occur to him that any other intention was possible. And in vigorously carrying out that presumed intention, he threw the English law into confusion. An intent to perpetuate the sectarian opinions held at a particular time by the members of a congregation or the founders of a religious trust or charity being presumed, it became necessary, if legally possible, to ascertain what those opinions were; but, in ascertaining them, Lord ELDON resorted to parol evidence, in violation of the elementary common-law rule which forbids a written instrument to be controlled by such evidence, and in nullification of that part of the statute of frauds which requires every creation of a real estate trust to be proved by some writing signed by the party creating the trust.

The error in regard to parol evidence into which he fell, in his zeal to execute the presumed sectarian intent, was rejected in The Dublin case (pp. 551-562); and although, in the unprecedented dispatch with which the present case has been brought to a decision by special orders of the court setting aside the rules and the usual course of practice, counsel have overlooked this point in The Dublin case, Lord ELDON'S error was a palpable one, that cannot be designedly adopted by a court that has once rejected it.

**214 The nature of the original institution must be the guide for the execution of a trust when there is an original institution to promote which the trust is created. That is merely saying that legal trusts, legally proved, are to be executed. And the English principle of presuming an intent, in the creation of a trust, to follow the example and analogies of state institutions, is not inconsistent with a democratic form of government. In England, the presumed intent formerly was to establish a sectarian perpetuity; in New Hampshire, upon the same principle, the presumed intent is to establish an independent perpetuity; for parochial independence is as much the ecclesiastical establishment of this state, as parochial sectarianism is a part of the English system. In this case, there is no occasion to draw a presumption from the examples, analogies, or influences of state institutions, for it is a state institution with which we are dealing; the intent to be presumed is furnished by the independent nature of the institution to which the control of the meeting-house was entrusted.

If an English parish had been incorporated as a branch of the established church by the name of The Independent Society, and the control of a parish church had been assigned to it by a vote describing the assignee by its corporate name, and Lord ELDON, being asked by a minority of the parish to divert the house to independent uses, had followed the independent name instead of the sectarian nature of the original institution; or, if a case could be found in which a court had *253 held a sectarian name of an independent parish to be the guide, instead of the independent nature of the original institution, there would be one authority in favor of the plaintiffs in this case.

In Attorney-General v. Gould, 2 Law Times Rep., N. S. 495, decided in 1860, a chapel had been by deed put in trust in 1746 “for the use and benefit of the congregation of particular Baptists within the city of” N., and the question was, whether the congregation should be restrained to close communion in the use of the chapel. The master of the rolls said,--“This congregation has adopted the practice of strict communion, from its first institution until within a very short period of the present time. I have therefore to consider whether that usage has precluded this congregation from altering that practice, and from now adopting the practice of free or mixed communion. * * Usage is only important in a legal point of view, where there is an absence of any instrument of endowment, or where the words of the instrument produced are ambiguous.” He rejected evidence of the usage, and the congregation not being incorporated, and the nature of the original institution not appearing by legal evidence to be sectarian in the matter of the communion, he refused to interfere.

In Attorney-General v. Bunce, Law Rep. 6 Eq. 563, funds had been bequeathed for the benefit of a Presbyterian society, which in time became Baptist and employed Baptist ministers; and it was held that the use of the term ““Presbyterian” did not amount to a requisition that any particular religious doctrines or mode of worship should be taught and observed, and that the court could not restrain the funds from Baptist uses. One of the grounds of the decision was, that the society must be regarded as independent.

**215 The principle recognized by all the English authorities, that the nature of the original institution is the guide, is established in the Dartmouth College case, and all other American cases. But when we come to apply this principle, it must be borne in mind that no decisions, in cases in other jurisdictions, restraining parochial property to sectarian uses, can be of any weight in this state, unless it appears in those cases that the parishes for whose use the property was given were independent. And if cases can be found in which the property of independent parishes, or property devoted to the uses of independent parishes with no other limitations than such as attach to the property of such parishes, has been withheld by the court from independent parochial uses, such authorities will be useful landmarks of error. The Massachusetts constitutional guaranty of parochial independence seems not to have been copied by any of the states except New Hampshire and Maine; but, in New York and some other states in which the question has arisen, it has been held that the same independence exists under statutes authorizing the incorporation of religious societies. Some courts, falling into the error of Lord ELDON, have admitted incompetent parol evidence of theological opinion and ecclesiastical usage, to alter written conveyances of property made to, or for the use of, religious societies; and cases decided by that method are of no value as *254 precedents in this state. In The Dublin case, it was said that Kniskern v. Lutheran Churches, 1 Sandf. Ch. 439, was the only American case of that kind that the court had met with.

Before the decisions in Robertson v. Bullions, 11 N. Y. 243, Petty v. Tooker, 21 N. Y. 267, Burrel v. A. R. Church, 44 Barb. 282, and Gram v. Society, 36 N. Y. 161, the view prevailed in New York, to some extent, that parishes incorporated under the statutes of that state were, or might be, sectarian in their legal character. Bellport v. Tooker, 29 Barb. 256, 272. But that view was a mistake which was corrected in those decisions. Some remarks of GARDINER, president of the senate, in Miller v. Gable, 2 Denio 492, 548 (decided in 1845), which were based upon that mistaken view of the legal character of New York parishes, have been construed as an adoption of the sectarian tendencies of Lord ELDON, although the decision of the question before the court in that case--a decision made by the president and thirteen others of the seventeen members of the court--was entirely in favor of independence and against sectarianism, expressly settling the point that a meeting-house, held in trust for the use of “The Calvinistic Church in the city of New York,” was not limited to Calvinistic doctrines. The dictum of President GARDINER, that, in a grant to an incorporated parish by name, “the corporate or denominational name, in connection with the contemporaneous acts of the corporators, may be a sufficient guide as to the nature of the trust in respect to doctrines esteemed fundamental,” was founded on two errors,--a supposition that, under the statutes of New York, a denominational name indicated a sectarian legal nature, and the admission of incompetent parol evidence,--both of which errors he rectified in 1854, when he concurred, as chief judge of the court of appeals, in the decision of Robertson v. Bullions. In the meantime, the errors of his dictum had been quoted and followed by EDMONDS, J., in People v. Steele, 2 Barb. 397, decided in 1848. In Kniskern v. Lutheran Churches, 1 Sandf. Ch. 439, decided in 1844, land had been conveyed to trustees of a society called “The Lutheran Congregation of” C. & N., “for the common use and benefit of the said Lutheran Congregation forever.” At the date of the deed, the congregation was organized, but it was not incorporated until some years afterwards. The nature of the society was not manifested by a charter or general act of incorporation; and the error of SANDFORD, assistant vice-chancellor, in altering the deed by inserting a sectarian institution upon parol testimony, in violation of the statute of frauds and the common-law rule of evidence, was sufficiently shown in The Dublin case.

**216 But if the supposition, that under statutes of New York incorporated parishes were or might be sectarian in their legal nature, had not been a mistake, and if the dictum of GARDINER had not been retracted, and the decision of EDMONDS had not been overruled, that dictum and that decision would be of no avail to these plaintiffs until they established the theory that, under the constitution of New Hampshire, incorporated parishes are not independent. That theory is indispensable to the plaintiffs' case.

*255 In Smith v. Swormstedt, 16 How. U. S. 288, 305, 307, it was decided that the general conference of the Methodist Episcopal church, an unincorporated institution, holding property in trust, might divide the property with the purpose of appropriating it to the dissemination of opposite theological views on the question of slavery, without regard to the original position of the conference on that question. That case exhibits the tendency of American law to sustain ecclesiastical independence. If there ever had been a contrary tendency in New Hampshire law (as we have seen there never was), it would have been eradicated by the constitution, which disabled the spirit of intolerance, and established religious equality as an unalienable right, and parochial independence as a state institution. And the proposition, that the control of property given to an independent parish enures for the benefit of parochial independence, is too plain to need the support of authorities, or to be overthrown by authorities, if there were any in conflict with it.

“Let us consider the reason of the case. For nothing is law that is not reason.” Coggs v. Bernard, Ld. Raym. 911. In the deed and vote by which this corporation acquired the control of its meeting-house, why was every limitation of the control of the house carefully omitted? Because the deed was made, and the vote was passed, on the faith of the charter which created and described the nature of the original institution; because it was understood, and there was an implied contract, that the corporation should use and control the house, in the full exercise and enjoyment of parochial authority and power, for the objects stipulated in the charter--the objects for which the corporation was created--the objects within the scope of its corporate capacity, and the range of its organic law; and because that use was secured by the constitution of the parish, and the constitution and laws of the land. That use included the preaching of any doctrine the corporation was authorized by its constitution to inculcate: that was the use desired by the contributors: they relied upon the organic force and law of the corporation. The court cannot receive parol evidence of their being Unitarians, and then conjecture that they were so assured of Unitarian infallibility that they resolved to fasten it as an endless, unalterable encumbrance upon the house, and that, after organizing the corporation, without any attempt to abolish the constitution which made it theologically independent, they formally proceeded, by deed and vote, to establish Unitarianism as a sectarian perpetuity, when they studiously refrained from putting in the deed or vote a single statement or declaration on the subject, and inserted not a word that could convey a sectarian idea, except the name of the independent parish, which name it was necessary to use in order to identify the free corporation to which they committed the control of the house. Nor can the court alter the deed or vote, or make them to correspond with an impossible conjecture.

**217 If, in putting the house under the control of the parish, the intention had been to forbid the parish controlling it for the uses for which the *256 parish was by law authorized to hold such property, is it reasonable to suppose that such an intention would not have been declared, as this court in The Dublin case held it must be, in plain, appropriate, and explicit terms? When the parish could apply its property to all uses within the charter powers,--when the charter expressly authorized the parish to apply its property to those uses,--is it possible to imply a contract that the parish would not apply property put under its control to the same uses? Can it be imagined that there was an understanding--an invisible, inaudible stipulation-- between the parish and the contributors, whose vote placed the house under the control of the parish, that the parish would not apply the house to the uses of the parish?

The contributors, and the members of the parish, understood that the pulpit might be occupied by public teachers. What public teachers? Necessarily, the public teachers of the parish,--the public teachers whom the parish was authorized by the constitution to elect,--unless a different understanding was expressed in the plain, appropriate, and explicit terms which are necessary to create a sectarian limitation. Wood v. Cushing, 6 Met. 448, 456. That the parish can rightfully elect a public teacher who, in the pulpit of which the parish has legal possession and unrestricted parochial control, cannot rightfully preach the doctrines he was elected to preach; and that this state of things is brought about by a vote which simply gave the control of the pulpit and house to the parish, is a mystery not attributable to the perfection of reason.

If the parish had bought the land and built the house with money raised by a parochial tax assessed upon the polls and ratable estates of the members, and collected in the manner authorized by law, and had taken a deed, in common form, from the Dover Manufacturing Company to the parish by its corporate name, the parish would now “hold and possess” the land and the house, by force of the common law as well as the act of 1827, “for the use and benefit of” the independent parish, free from sectarian limitations. And if the deed had been “in trust for the use of the parish,” describing it by its corporate name, the effect would have been the same as to the parochial use of the house: the parish not having the title could not convey the title; but its parochial control of the use, for the purposes of theological independence, would have been as absolute as if it held the fee. The corporate name of an independent parish carries no more sectarianism into a trust deed than it carries into any other deed. And the vote, transferring the control of the house to the independent parish by its corporate name, imposed no sectarian limitation that would not have been imposed by an absolute deed in common form from the Dover Manufacturing Company to the parish. A conveyance of property to an independent parish, or in trust for the use of such a parish, or a vote assigning the control of property to such a parish, is for the benefit of the members of the parish in the full enjoyment of their parochial capacity. This meeting-house was put under the parochial control of an independent parish by the vote of the contributors, and *257 was thereby devoted to the uses of parochial independence. There is no sectarian trust or limitation attached to it. The use of it is con fined within no narrower theological lines than those of parochial power. That is the answer to the third question, and the end of the law of the case, and of all the facts competent and material to be considered.

**218 And, if we were to do what the law forbids,--if we should go beyond the legal proof, beyond the charter, the deed, the votes, the law, and the constitution, receive the inadmissible evidence which has been offered, ascertain by illegal means and methods the intention of the first members of the parish, and decide according to the merits and equities, without regard to legal rules,--we should find the same answer for the third question, and arrive at the same conclusion on the whole case. And it is agreeable to know, that the principles of natural justice are enforced by the application of those general and elementary principles of law, a faithful adherence to which is of paramount practical importance, as well as an imperative judicial duty. The Dublin case, 38 N. H. 565.

The money with which the meeting-house was built was raised by subscription, in purs ance of a vote of the parish. The contributors who furnished the money, and by their vote placed the house under the control of the parish, were members of the parish. As members of the parish, they first voted to raise the money by contribution, instead of taxation. As members of the parish, they contributed the money, and built the house. As members of the parish, they put the house under the control of the parish. They intended to give themselves and their successors (that is, the parish) entire parochial control,--just such control as the parish would have had if they, in their parochial capacity, had built the house, or bought it, with money raised for the purpose by a parochial tax. Their intention, as to the theological character and destiny of the house, was precisely what it would have been if they had collected the money of themselves by their own voluntary taxation, instead of their own voluntary contribution. They chose the form of contribution rather than the form of taxation, for the same reason that induces other parishes to make the same choice in raising funds for parochial purposes. They chose the usual form, and their choice had no theological significance.

They were not ignorant of their denominational polity. The first pastor of their parish says,--“There has never been, there is not now, among the Unitarians, anything that may be regarded as an authoritative statement of religious belief, because, in the spirit of Congregationalism, they have always rested upon and contended for the independence of each separate congregation.” “Each [Unitarian] society manages its own affairs, temporal and spiritual, in its own way.” 15 New Am. Cycl. 709. They were not ignorant of their denominational history. Parochial independence, which their denomination had such experimental knowledge of, they perfectly understood. On that foundation *258 they well knew their denomination had just risen to its conspicuous position, a flourishing set of apostate parishes glorying in their freedom. On that denominational foundation of constitutional right, fully appreciated, universally acknowledged, judicially vindicated in the reported case of Baker v. Fales (ante, pp. 144, 147), and demonstrated to be absolutely invincible by Webster's inability to find an argument against it, they formed themselves into this independent parish. On the same foundation, and as the most important part of the same transaction, they built this house, and committed the control of it to themselves and their successors in their independent parochial capacity. They were intelligent men. They were theologically liberal, in the large Unitarian sense. They were honest. They believed in the principle of parochial independence, admitted by everybody, and specially professed and practised by their denomination. It was a fundamental principle of their Unitarian system: it greatly promoted their cause: they relied upon its assistance in the final triumph of the truth. Knowing what they knew, and believing what they believed, what could they do with the house but devote it to that principle of parochial independence, as Unitarian as it was constitutional, to which their denomination was publicly and irrevocably committed, to which they were indebted for their sudden denominational growth and prosperity, and in which they rejoiced with becoming joy and gratitude? They did put the house under the absolute parochial control of their independent parish. Can there be a doubt of their intending to do what they did, or of the natural justice of the case? They were respectable men, morally and intellectually. And it is due to their memories that they be exonerated from the plaintiffs' accusation of intending, in practice, to trample their avowed principles under foot, when those principles coincided with their view of their denominational interests.

**219 From whatever side and in whatever light of law or justice we look at the case, it is impossible to discover anything favorable to the plaintiffs. Here were men, who had abandoned the faith of their fathers (on points agreed on all hands to be essential, fundamental, cardinal, and vital), engaged in the business of forming themselves into an independent parish, and building a meeting-house for the use of the parish. Would they be likely to put such a restriction upon their own use of their own house, that, if they should in the course of time reconsider and reconstruct their theology once more, they would deprive themselves of the benefit of their own investment? Would they, without any necessity for so doing, put themselves under bonds never again to change their opinions? Putting a restriction upon their own use of the house would be unnecessarily giving bonds, to the amount of its value, to keep their opinions unaltered. Would their desire to debar their successors from the right of apostasy, which they had exercised, be so overpowering as to deface their own house with the humiliating inscription that they themselves should lose the control of it if they apostatized a second time?

Then, as to the use of their successors. The founders of this parish *259 may be supposed to have had some knowledge of ecclesiastical history, the laws of nature hitherto in operation, and the universal mutability of theology produced by the operation of those laws, especially in nations of education and intelligence, and more especially among those and the descendants of those who have apostatized from Catholicism. They must be supposed to have acted upon their knowledge of the historical and notorious fact. It would be uncharitable to suppose, in view of their own experience and the long experience of mankind, that they had the conceit to believe their faith could be held by their successors forever. Upon recantation of their former sentiments, they had adopted the Unitarian belief that the theology of Christ, and of his followers during his life, and for several hundred years after his death, was Unitarian, and that Trinitarianism was a heathenish corruption. That belief was a distinct recognition and affirmation of a historical and apparently inevitable fluctuation of doctrinal opinion. They did not intend, when their own remodelled theology should pass away, that this house, or its ruins, withdrawn from the uses of life, should become a monument of an extinct faith. They contemplated a use of unlimited duration, and to that end they put the house under the control and protection of their parochial corporation, the independence of which was a fixed principle of Unitarian as well as constitutional law.

In McGinnis v. Watson, 41 Penn. St. 9, decided in 1861, Ch. J. LOWRIE, delivering the opinion of the court, and commenting upon the rule laid down by Lord ELDON, says,--“We should grievously misapply this rule if we should interpret it as meaning that no congregation can change any material part of its principles or practices without forfeiting its property. This would be imposing a law upon all churches, that is contrary to the very nature of all intellectual and spiritual life. * * The guaranty of freedom to religion forbids us to understand the rule in this way. And all history forbids it. * * The principle is, that all intellectual or spiritual growth involves some change or development of opinions, principles, and practices. * * And the fact is, that, from the very origin of Christianity, such a change has been continually going on in the Christian church in all its branches, congregations, and members, without producing a forfeiture of the property held, even by those in which the change has been most decided. Changes in principles and practice are not incompatible with legitimate social succession, but are necessary elements of its normal progress.” After citing ecclesiastical history in support of these views, the chief justice adds,--“In all the early colleges and universities of Europe, there is a similar departure from the original purposes of their creation and of their founders. Many of them were established with the expectation that they should teach the Ptolemaic astronomy. * * Nor can it be said that the authority, by which all those institutions passed over to the propagation of opinions contrary to the thought of the original founders, was grounded on mere might without right. All such institutions were created for the benefit of the people, and to meet this purpose, they must grow in form and principle with the demands that *260 are made upon them, and no founder can be presumed and hardly even allowed to have intended otherwise. * * Whatever may be the limits that theologians may fix for the growth of the church in form or principle, we can fix none until the law can decide what particular church is perfect. All history reveals the church to us as an institution that is continually educating, developing, and changing society, and changing with the changes it produces, and this right to change is part of its freedom.”

**220 Smith v. Nelson, 18 Vt. 511, is a case of a legacy given for the benefit of a religious society, in which Ch. J. WILLIAMS, delivering the opinion of the court, says,--“Unless this right of the majority is recognized, and a gift or donation is to be construed as having reference to this state of our society, and as being intended by the donor to be controlled by a majority, property given, devised, or bequeathed to a religious society and for a religious purpose, might, in the course of a very few years, be wholly locked up and secluded from any useful or beneficial purposes; and we never ought to give such a construction to a legacy or gift, unless imperatively called on so to do by its explicit terms. * * Most probably, considering the times in which he [[[[[the testator] lived, the free and liberal institutions of the government under which he had been protected in his religious belief, and the tendency in all communities to divide into parties, one of which may prevail over the other for a longer or shorter time, he may have contemplated that time which witnesses changes in all things, might witness a change in that congregation even in great and important matters, and took no pains to guard against such changes by limiting or clogging the legacy with any conditions or stipulations which should prevent the congregation from having the benefit of it at all times to come while they had a pastor of their own choice. * * Most religious societies have been at times divided on questions arising out of their articles of faith, and have altered them in many particulars,--by some deemed unessential, and by others essential. The situation of our country, our constitutional provisions in relation to religious freedom, forbid that the authority of those cases [[[[[Attorney-General v. Pearson, and Attorney-General v. Shore, sustaining the English sectarian theory] should be here recognized.”

Similar views, in relation to a presumed intention of a donor not to deprive his successors of their religious liberty, were expressed by this court in The Dublin case (pp. 563, 564), so far as an opinion on that point was called for by a Unitarian use of a legacy expressly limited to the support of the Christian religion and ministers of the Congregational persuasion, and not put under the general and unrestricted control of an independent parish.

Whether the views of these authorities are correct or not, they are views entertained by all Unitarians. They were entertained by the men who built this house, and put it under the control of their independent parish. These men claimed that they were not in the condition which they constantly and fervently denounced as bigotry and *261 sectarian thraldom. They exulted in their complete liberation from the trammels of sectarianism. They expected their successors, whether influenced by their apostate precept and example or not, would modify their faith, as they had modified the faith of their fathers, as those fathers had done before, and others before them, in that series of apostasies through which their pedigree ran back, through Catholicism, to their ancestral, historic paganism, and doubtless further back indefinitely, through many varieties of paganism in pre-historic ages. These Unitarians of 1829 were zealous advocates and champions of the right of individual and parochial apostasy. They had abandoned the Trinity, the vicarious atonement, the plenary, verbal inspiration of the Scriptures, and the five points of Calvin: they knew the length of another step like that: they proclaimed themselves a progressive denomination.

**221 All Unitarian literature abounds in the sentiment that “There is nothing so revolutionary, because there is nothing so unnatural and so convulsive to society, as the strain to keep things fixed, when all the world is, by the very law of its creation, in eternal progress.” Dr. Dewey, dedicating his meeting-house in the city of New York in 1839, said,--“We would consecrate this church, not to the pride of opinion, but to modesty and humility; not to assurance, but to inquiry; not to any unbecoming claim of unfallibility, but to the great principle of religious progress.” “To free inquiry, then, we dedicate these walls.” Channing's Discourse at the Dedication of Divinity Hall, Cambridge, 1826. “I stand now to teach, where in my childhood and youth I was a learner. The generation which I then knew has almost wholly disappeared. The venerable man, whose trembling voice I then heard in this place, has long since gone to his reward. My earliest friends, who watched over my childhood and led me by the hand to this spot, have been taken. Still, my emotions are not sad. I rejoice; for, whilst I see melancholy changes around me, and still more feel that time, which has bowed other frames, has touched my own, I see that the work of human improvement has gone on. I see that clearer and brighter truths than were opened on my youthful mind are to be imparted to succeeding generations. * * I indeed take pleasure in thinking that the particular views which I have adopted, of the disputed doctrines of religion, will here be made known;--but I rejoice much more in thinking that this house is pledged to no peculiar doctrines; that it is not erected to bind my own or any man's opinions on this or on future times; that it is consecrated to free investigation of religious truth, to religious progress, to the right of private judgment, to Prottestant and Christian liberty. Most earnestly do I pray that a purer theology, that diviner illuminations, that a truer worship, than can now be found in our own or in any sect, may be the glory of this house. We, who now consecrate it to God, believe in human progress. We do not say to the spirit of truth,--‘Thus far and no farther.’ We reprobate the exclusive, tyrannical spirit of the churches of this age, which denounce, as an enemy to Christianity, whoever, in the use *262 of his intellectual liberty, and in the interpretation of God's word for himself, may differ from the traditions and creeds which have been received from fallible forefathers. We rear these walls not to a sect, but to religious, moral, intellectual, Protestant, Christian liberty.” Channing's Discourse at the Dedication of the Unitarian Church, at Newport, R. I., 1836. In September, 1841, Channing writes,--“It [New England Unitarianism] began as a protest against the rejection of reason-- against mental slavery. It pledged itself to progress as its life and end; but it has gradually grown stationary, and now we have a Unitarian orthodoxy. Perhaps this is not to be wondered at or deplored, for all reforming bodies seem doomed to stop, in order to keep the ground, much or little, which they have gained. They become conservative, and out of them must spring new reformers, to be persecuted generally by the old.”

**222 This Dover parish, by dedicating its house to the Unitarian Christianity of 1829, devoted it not to “the traditions and creeds which have been received from fallible forefathers,” “not to a sect,” but to free inquiry, the right of private and parochial judgment, and the principle of progress to which Unitarianism was pledged as its life and end, and from which the denomination had not then, if it ever has, apostatized. And if we should decide, upon the incompetent evidence and the improper considerations upon which the plaintiffs ask us to act, we should find that, in point of fact, the Unitarians, whose money built the house, intended the legal force and effect of their vote. They meant to put the house under the control of a free parish, which, in exercising its right of free inquiry, could not be restrained by any hostile power, and, in redeeming the denominational pledge of progress, could not be lawfully commanded by any earthly tribunal to stand still.

And, disregarding even the Unitarian principle of progress, and taking the starting-point of Unitarianism as the standard, without inquiring into its progress, the plaintiffs' bill should be dismissed with costs. Freedom from sectarianism is, according to all Unitarian authorities, a distinguishing Unitarian characteristic. “To Channing, Unitarianism owes much of its freedom from sectarian and dogmatic trammels.” 15 New Am. Cycl. 708. Unitarianism “is characterized by nothing more than by the spirit of freedom and individuality. It has no established creed or symbol. Its friends think each for himself, and differ much from each other.” “I can endure no sectarian bonds.” “We must shun the spirit of sectarianism as from hell.” Such was the Unitarianism of Channing, expressed in his own words. The founders of this Dover parish, like all Unitarians of 1829, were Channing Unitarians; and they were followers of Channing in nothing more than in his detestation of that very spirit of sectarianism of which the decree in this case is intended to be an embodiment, and which is as anti-Unitarian as anything can be. Affixing a sectarian restriction to their meeting-house by simply putting it under the control of their independent parish, is an idea that did not occur to them.

On this subject, all Unitarian authorities agree. Rev. F. A. Farley, *263 in a sermon at the ordination of Rev. G. W. Briggs, at Fall River, Mass., said,--“Nowhere does it [the gospel] insist on a uniformity of faith. * * Nowhere does it threaten condemnation for mere error of belief, where the light enjoyed has been faithfully used to attain the truth.” Rev. W. H. Furness, in a discourse at Hingham, said,--“Christ did not appear presenting opinions,--definite ideas to the intellect,--but he inspires true affection. It was not knowledge, or faith, as these pertain to the understanding, that he sought first to communicate, but a spirit life to the inmost heart. * * As he did not begin with a creed, he did not end with a creed or anything like a creed. When he parted with his personal friends, who were to be his successors in the work which he had commenced, he did not deliver to them a list of articles of faith. * * I can hardly conceive of any mental darkness or confusion more complete than that in which the disciples of Jesus found themselves when he left them. They knew not what to believe, they knew not what to think even.” Dr. N. L. Frothingham said,--“In every nation, whether Christian or not, and in every Christian nation, believer or not, he that doeth righteousness is accepted,--of whatever color, or tribe, or name; Jew, Mussulman, deist, pagan. Deliver me from the narrowness of thinking otherwise!”

**223 “Are we a denomination? We are such in some sense, but not so definitely such as most other bodies of Christians. * * We have not those things which are necessary to the existence of a defined and bounded denomination. We have no marks by which to designate those who belong to us, and no standards by which to test the fitness of their coming among us or remaining among us, or the fitness of their leaving us. * * There is no such thing as the Bible only, either for us or other Christians. We, like all others, must take with the Bible some means or principles of interpreting it,-- ascertaining its purport and requirements. * * Shall we say we mean the Bible, as interpreted by fair rules of criticism,--our own, and not those of the Westminster divines or a Romish hierarchy? But what are fair rules of criticism? Are they rules based on the idea that the Scriptures were composed under the express guidance of inspiration, attending the writers throughout, as some of us maintain? or, on the idea that there is no such inspiration, and that the Bible is to be dealt with as freely as any other ancient books, as others hold?--for it makes a vast difference on which idea we base our rules of criticism. Or, again, on what system of philosophy shall the criticism and interpretation of the Bible proceed?--that system which makes miraculous attestations necessary to the confirmation of Christ's authority as divine, miracles a chief and essential voucher for the truth of what he taught? or, that system which finds the only and sufficient witness and verification of religious truth in the judgments and responses of the individual soul? Or, again, if we choose to be vague, and to say that common sense shall be the interpreter of the Bible, then whose common sense shall it be?--mine, which receives historical facts upon historical testimony and logical grounds? or, another man's, who alleges that no kind or amount *264 of testimony can overcome the antecedent improbability of facts which involve the supernatural? Both these kinds of philosophy and of common sense, and all kinds between them, are found among those who profess to base their religion upon the Bible, and to find in the life and teachings of Jesus Christ the best and a sufficient guide of faith and practice. We all, like other men, unite with the Bible one means or principle of interpretation or another, one kind of philosophy or common sense or another. And hence there are almost as great differences among ourselves, or those who are numbered with us, as between us and other denominations. That, therefore, which we have usually held forth as our denominational test,--‘the Bible only,'--is not sufficiently definite or distinctive to serve as a real test. We have not, then, any defined and authorized tests, by complying with which a man belongs to our denomination rather than some other, or by departing from which he can properly be excluded from it. We have not the essential requisites of a denominational existence. I am glad it is so. * * There are, indeed, some persons, imperfectly acquainted with us, who, thinking they have an affinity with us, and who, from always living among sects, have not yet risen to a conception of the possibility of being a Christian man, or a Christian church, without wide ecclesiastical relations, definite standards, a denominational union, and an aggressive array,--there are some such who desire to know where we stand, demand to know where to find us. And it is a common complaint among those who dislike and oppose us, that they do not know where to find us. But they cannot be informed where to find us. US! there is no US in any corporate sense, and it was never meant that there should be: I pray God there never may be. We properly consist of a scattered and indefinite number of free minds and free churches, all forming their opinions for themselves. * * If you wish to find any given individual preacher or writer, you can ascertain; but you will never know where to find us. Our strength lies in our freedom.” Dr. Putnam's Discourse at the Installation of Rev. David Fosdick, as Pastor of the Hollis Street Church, Boston, March 3, 1846. Whatever may be thought of this freedom as a bond of sectarian union, it is one that any sect may lawfully adopt: it is the principle of constitutional parochial independence.

**224 In a tract written by Dr. Andrew P. Peabody, published by the American Unitarian Association, and distributed for many years as an authoritative exposition of Unitarianism, entitled “FIDELITY IN DUTY, NOT ACCURACY IN BELIEF, OUR TEST OF THE CHRISTIAN CHARACTER” (“1st series, No. 137”), that eminent divine says,--“We do not pretend to any degree of uniformity of faith. * * We agree in making fidelity in duty, not accuracy in belief, our test of the Christian character. * * We regard no particular doctrine or set of doctrines as essential. * * With regard to modes of faith, the Bible and the church are entirely at issue. This church has its five points; that, its thirty-nine articles: here, there is a creed full of dark subtilties; there, a covenant by which a man enters into a contract with his Maker to *265 believe an indigestible mass of the metaphysics of the dark ages. And these standards are made a Procustes's bed to which every mind, great or small, must adapt its dimensions, or forego admission to heaven. But what says the Bible? A word of all this? By no means. One of the first things that strikes us on turning over its pages is the strictly practical character of its requisitions. It is the least technical book in the world. It makes no attempt at giving a system of theology. * * If in any heathen land there be one who has turned away from fraud and violence, who has done justice and loved mercy, and walked humbly before the God whom he has heard in the evening breeze, or beheld in the glow of nature, or felt in the deep workings of his own spirit, he has done the will of his Father in heaven, and belongs to the Christian family. If there be a Jew, who with contrite heart mourns for the desolation of Zion, and prays for the peace of Jerusalem, and serves the God of Abraham, Isaac, and Jacob, he, too, as a doer of God's will, belongs to the household of the Saviour, whom his brethren set at nought. If faith be the standard, the devout pagan, the pious Jew, are reprobates; but if those who do God's will shall enter his kingdom, they are heirs of that kingdom.”

In the Unitarian extremity nearest to orthodoxy, there has been no higher human authority since the death of Channing than Dr. Peabody. According to his test, sanctioned, avowed, and promulgated by the whole Unitarian denomination, Abbott is a Christian in the Unitarian sense. If a different spirit or a different creed can now be found in any professed Unitarians, it merely divulges their recent progress towards orthodoxy. The Unitarian Christianity of 1829 is truly set forth in that Unitarian tract, “1st series, No. 137.” It is useless to accumulate Unitarian authorities to substantiate a fact so well known to everybody who knows anything of Unitarian history, and whose understanding is not warped by interest or feeling. The Unitarian Christianity of 1829 was the Unitarian Christianity of the founders of this Dover parish. The testimony of a minister, whose Unitarianism is unquestioned, and who was the public teacher of this parish from 1840 to 1850, with an interval of two years, shows that the parish has been Unitarian in the belief that Christ “spoke with the authority that truth and goodness will ever have over what is highest and best in the human soul;” that Christ did not intend “to teach a system” of theology or “sharply defined dogmas;” that “if he had, he would have taken pains to have had it embodied in strict forms of expression, and with perfect verbal accuracy,” in a duly attested and absolutely authoritative record made during his lifetime.

**225 Even if the Unitarianism of 1829 superseded the constitution and the independent theological character guaranteed to the parish by the constitution, the plaintiffs have no case against Abbott. The decree, so far as it is meant to be a decree in favor of the plaintiffs and against the defendants, so far as it is understood and intended to establish a Unitarian creed and convict Abbott of heresy, and so far as it compels the defendants to pay the plaintiffs' costs as a penalty for allowing Abbott *266 to preach heresy “in the meeting-house of said society,” overturns the fundamental principles of Unitarianism, as well as the constitution. Unitarians “regard no particular doctrine or set of doctrines as essential:” they accept the Bible; and the Bible, according to their interpretation of it, “makes no attempt at giving a system of theology.” “The devout pagan, the pious Jew,” belong to the Unitarian “Christian family.” The word “Christian,” in its Unitarian sense, has no theological significance. Whatever else Unitarian Christianity may be, it is the abolition of heresy. They who erroneously suppose that Unitarians, in calling themselves liberal Christians, use the word “Christians” in a theological and orthodox sense, cannot comprehend Unitarian consistency; but no one has any difficulty in understanding why they call themselves “liberal:” and, in their sense of the words, the noun is as appropriate as the adjective. Abbott, giving the word ““““““““Christian” a theological meaning that Unitarianism does not give it, asserts that he is neither a Unitarian nor a Christian. The devout pagan and pious Jew assert the same thing of themselves. The Unitarian denomination, using language in the Unitarian Christian sense, asserts the contrary; and the denomination knows better than Abbott, pagan, or Jew, whom it regards as Christians in its sense of the word, and whom it intends to include in its “““““Christian family.” “““Every theological inquirer * * finds a fruitful, almost an exhaustless and endless task, in settling the meaning of theological terms, in coming to an understanding with others about their use of those terms, in asking whether all who employ them connect the same sense with them. * * Nor are the perplexities which arise from this source relieved by our agreeing to use Scripture terms in our theological discussions. All the terms used in these discussions become technical. They are generally chosen from other languages than our own, and are perplexed with etymological niceties of definition, or they are used in a sense different from that which associates them with common, earthly things. These technical theological terms are adopted as if more expressive or comprehensive in their signification than any which our household speech affords; but certainly one prevailing reason with theologians for keeping them in use is, that they are often so vague and indefinite, and so burdened with double meanings, like old oracles, as to allow those who employ them a considerable range of liberty, and to excuse them from being too explicit. If we take any one of the contested problems in doctrinal or speculative theology, we find it to be involved with terms each of which asks for a re-definition or a rectification of its popular or scholarly interpretation, before any new writer can profitably use it in discussion. He must, at any rate, tell us in what sense and with what limitations he intends to use each of these test words. * * Any one, who will undertake the hard task of reading the old controversial pamphlets on the orthodox side, will find them to abound in the most scorching denunciations of Unitarians as infidels, and of Unitarianism as bald, malignant, and wicked infidelity. * * Our own brethren were always aware that their ‘use of language not very unlike that of their orthodox *267 brethren,’ when dealing with ‘some of the great truths of the Bible,’ was regarded as a very remarkable phenomenon by their opponents. Time was when Unitarians were considered trespassers and deceivers, if they ventured to use the dear and consecrated terms and phrases of a traditional piety. The orthodox imagined that they had monopolized or appropriated even Scriptural epithets and texts, by having assigned to them an interpretation which might claim to be a part of their signification forever after. It was wicked for a Unitarian to employ the language in which orthodoxy spoke its own convictions. Still, the Unitarians would not be warned off the sacred precincts. They considered that Bible terms, and even the affectionately treasured phrases of devotional literature, formed a part of the common stock of the language. Orthodoxy now concedes that liberal Christians feel at liberty, in consistency with honesty, to use such terms and phrases; and, instead of admitting its own error in its former charges of hypocrisy, accounts for the fact by supposing something like a reaction among Unitarians.” Ellis's Half-Century of the Unitarian Controversy 379, 380, 410, 411. The right of Unitarians to use language in a Unitarian sense can no more be denied, than the right of Trinitarians to use the same language in a Trinitarian sense. All that can be required is, that both parties explain their meaning so as not to mislead any one who is not versed in their ecclesiastical dialects. And Unitarians have explained their meaning quite as clearly as the other party. They are not in fault for being misunderstood or misrepresented. No one ever complained that their negations of orthodoxy were equivocal. And as to their affirmative faith, when they assert, in the language of Dr. Peabody, that the Bible “makes no attempt at giving a system of theology,” no one can fail to understand what they mean. Their doctrine, of “““FIDELITY IN DUTY, NOT ACCURACY IN BELIEF, OUR TEST OF THE CHRISTIAN CHARACTER” (Tract No. 137, 1st series), is, in explicitness, not inferior to any other creed published in the English language. A person, accustomed to the Trinitarian and ignorant of the Unitarian idiom, hearing Unitarians affirm the divinity (not the deity) of Christ and the inspiration of the Christian Scriptures, and not understanding how human perfection can be divine, nor how a human being can properly be called a child or son of the Creator, nor how all truth can be fairly said to be revealed by a divine influence, or made known by a divine power, government, or law, might easily fall into the error of supposing that Unitarians use theological language in the orthodox sense, that they believe in Christ as the Messiah in the orthodox sense, in revelation and inspiration, the Trinity and the atonement, in the orthodox sense, and that they are Christians in the orthodox sense. Forty years ago, when they built this meeting-house, they were understood: then they were infidels in the orthodox sense. Now their infidelity is judicially established, by the decree in this case, as a kind of Christianity at least equal to any other.

**226 Where is the theology of Christ to be found, if not in the record of his teachings in the gospels according to Matthew, Mark, Luke, and *268 John? If that record “makes no attempt at giving a system of theology,” what other revealed Christian theology have we, except that of natural religion, revealed through natural instrumentalities of human reason and human knowledge? One of the plaintiffs testifies that Abbott's idea is, that a Christian is one who has the spirit of Christ, or is Christ-like in spirit. That is a familiar Unitarian idea, free from all doctrinal limitations. Abbott objects to the Christian name in the doctrinal sense in which it is now used by some to describe a class of men whose theology, in his belief, is non-Christian. He is admitted to be, in the Unitarian Christian sense, a model of piety, morality, and Christian spirit--as perfect an illustration of “fidelity in duty” as any denomination has produced. His exclusion from the Unitarian Christian family of devout pagans and pious Jews, is as mysterious as the operation of the nominally-Christian test that condemns him for accepting the religion of Christ as he understands it. Such is the work of nominalism usurping ecclesiastical jurisdiction in behalf of Unitarianism.

But why protest against a decree that establishes a non-theological Unitarianism? Because it will be understood to be, and is meant to be, an exercise of ecclesiastical authority, a vindication of Unitarians as Christians, a condemnation of the religion of a theist, a judgment compelling the majority of an incorporated parish to pay costs for allowing Abbott to preach theism in the meeting-house of the parish, and forbidding all wardens and members of the parish “to hire, employ, allow, suffer, or permit said Francis E. Abbott, or any other person,” to preach anti-Unitarianism there, under penalty of fine and imprisonment, and because, in these respects, it is a violation of constitutional rights.

The further we look into the inadmissible evidence upon which the plaintiffs rely, the more untenable is their position found to be. When the parish was organized, and when the meeting-house was put under its control, the evidence tends to show that there were not more than eight parishes in the state controlled by Unitarians, and that six of those parishes had apostatized from orthodoxy without forfeiting their parochial rights of property. The plaintiffs, in their bill, allege that this meeting-house was dedicated by Unitarian ministers. Ten parishes were invited to dedicate the house, and, at the same time and place, to ordain the first public teacher elected by the parish. And those ten parishes accepted the invitation, were present by their delegates and public teachers, and rendered the service requested. To one of the ten,--the Unitarian parish nearest Dover,--Jonathan Edwards had preached, at the ordination of one of Dr. Peabody's predecessors. Of that parish, Dr. Peabody was a Unitarian public teacher nearly twenty-seven years. 13 New Am. Cycl. 64. In his published history of his apostate parish, Dr. Peabody says,-- “We have a history on which we can look back with unmingled satisfaction.” P. 89. One of the plaintiffs, who is substantially the party instituting and carrying on this suit, officiated as a delegate from that parish (of which he was then a prominent *269 member), at the dedication of the meeting-house of this Dover parish. Every one of the ten parishes had, in its parochial capacity, apostatized from the orthodox faith, without losing its corporate property, or its corporate control of property, and without any suggestion or suspicion that any liability of loss was incurred. Apostate parishes alone were invited to dedicate this house, because leading and influential parishes were selected, whose presence would tend to strengthen the ecclesiastical and social standing of the new parish; and it happened that all the Unitarian parishes of that description in the country were of the apostate class. Into the fellowship of a denomination of apostate parishes, this Dover parish entered: as an heir of a known and asserted right of parochial apostasy, in the exercise of which the Unitarian power in America had been chiefly attained, it voluntarily came into existence: to an appreciated inheritance of parochial freedom, it chose to be born. Its members, in the selection of friends to dedicate their house to the uses of that freedom, did not overlook the prominent position of the parish of King's chapel, who had inaugurated the apostate movement with the express and public assertion of their right to apostatize “by virtue of the third article in the declaration of rights,” from which “third article” the New Hampshire constitutional guaranty of that right had been copied. And it may be taken for granted that the invitation given to King's chapel, and the nine other apostate parishes, to perform the ceremony of dedication, was not a request publicly to confess themselves guilty of wrongfully and unlawfully appropriating parochial property, and committing ten breaches of trust. They were not called to Dover to receive an affront, or to expose themselves to ridicule. Their ceremony was not a satire upon their own history and the apostate parochial origin and career of their denomination in this country.

**227 Nothing is wanted to expose the plaintiffs' case to that abhorrence which, under Providence, is one of the punishments of the spirit of persecution. The plaintiffs, in their bill, have not asked the court, and the court has not undertaken, to remove the wardens from office, to expel the majority from the parish, or to transfer the corporate power from the majority to the minority. The avowed object of the minority in bringing this suit was, the expulsion of Abbott from the pulpit of the parish. But, before the case was submitted to the court for decision, Abbott, obeying a conscience of extraordinary acuteness and activity, had refused to remain a public teacher of the parish, or to be in any way connected with it, or to preach in its house. The corporate name of the parish had no effect upon its constitutional independence: the parish had a legal right to allow him to preach theism in its house, and had legally exercised that right; but, disclaiming for himself the name Unitarian Christian, in a certain non-Unitarian sense, he feared that, by occupying the position of a public teacher of the parish while it retained its corporate name, he might be misunderstood or misrepresented. The name of the corporation had, in law, no theological significance; but the name, in fact, might be made to carry a *270 sectarian meaning to persons more familiar with a sectarian idiom than with the constitution: the name might be understood or represented to give a support to doctrines which he discarded; and, to avoid the possibility of misconstruction and misrepresentation, he refused to be any longer employed by the other defendants as the majority of the parish, and retired, declaring he could preach in that house no more. It is incredible that a man, who writes as he does, can think his theological position in any danger of being misunderstood: and his renunciation of his legal rights, on the ground that somebody might, against his protest, insist upon calling him a Unitarian Christian in the Unitarian sense, when he calls himself a theist, is a phenomenon, which, if it be judged by the highest Unitarian or Trinitarian standards exhibited in practice, must be attributed to a morbid sensitiveness or abnormal development of his moral faculty.

On his retirement, the counsel of the other defendants endeavored to pacify the plaintiffs, and to open negotiations with them for a parochial peace. He gave them a proposition in writing, that the defendant wardens would apply to the American Unitarian Association for a pastor, and the majority would employ such as the association should send,--the pastor's salary to be raised by subscription in the usual way,--counsel saying at the time, “that he made the proposition on his own responsibility, but he thought the defendants would assent to it.” One of the defendant wardens was present, and made no objection. He says in his deposition that he should not feel satisfied with an agreement that the association should supply the pulpit all the time, because some of those who subscribed largely might wish to hear some one else occasionally. He sees no objection to the parish putting itself under the general guardianship of the association: but it seems to him reasonable that the members, who pay the salary of the minister sent by the association, should occasionally be allowed the privilege of hearing somebody else, if they should desire to do so. But even this modest qualification of an absolute guardianship he did not suggest. No objection or qualification was suggested by anybody on the defendants' side. The written proposition was made without any conditions. When counsel for the defendants said, at the time he made it, that he thought the defendants would assent to it, he was familiar with the views of his clients, as counsel generally are. He was one of the defendants himself. He was the member who offered the compromise resolution of April 27 (ante, p. 235). He has all along sought the restoration of harmony in the parish, and his clients have magnanimously concurred with him in following after the things that make for peace. He knew, and the plaintiffs knew, that he was right in thinking the other defendants would assent to his proposition, or any other reasonable one, as a basis of settlement. The whole course of the majority, and particularly their adoption of the compromise resolution, showed that conciliatory spirit, and that anxiety to prevent the dissolution of the parish, which they expressed in that resolution. And here was a formal offer in writing, made by *271 their counsel, that they would accept any public teacher sent to the parish by the highest authority of the Unitarian body. It was not an ultimatum. It was a tentative proposition, declaring the continued readiness of the defendants to agree to any reasonable adjustment, and inviting the plaintiffs to treat about the terms of accommodation. That invitation the plaintiffs rejected. They would entertain no overtures. They would enter into no negotiation. It was not enough that Abbott banish himself from this pulpit; that the majority allow the plaintiffs, and public teachers of the plaintiffs' choice, to occupy the pulpit and the house as much as they desire; and that the majority employ the public teachers sent to the parish by the acknowledged representatives of the Unitarian denomination. The cause of contention had ceased, and the defendants' counsel requested a cessation of the plaintiffs' hostilities: the plaintiffs would neither go peaceably out of court themselves, nor permit the defendants to go. The object of litigation had disappeared: the lawsuit continued for the purpose of employing the court as the ecclesiastical tribunal of a state church, in excommunicating Abbott, and convicting him of the crime of unlawful religion. The plaintiffs are contending for something more important, in their estimation, than the harmony of the parish, or the propagation of Unitarian Christianity. They demand that the court follow Abbott out of the parish, and investigate the question whether he is a Christian in the Unitarian sense of the word, whatever that may be. They insist that he be publicly stigmatized for his theology, by authority of the government, in the solemn form of a judicial condemnation. The court are not authorized, by the law or the justice of the case, to engage in the pursuit, the inquisition, or the anathema.

**228 The plaintiffs, in argument, have informed us that Abbott's theology is heterodox (that is, in conflict with the prevailing religion of the country), with no great show of success as yet; and inflammatory appeals have been made, calculated to rouse the prejudice of influential classes and powerful ecclesiastical organizations against him, on account of his religion, and to excite their sympathy in behalf of his persecutors. We certainly needed not to be informed that his religion is not a fashionable one. These harangues are not made for our information. For what purpose are they made? To what motives are they addressed? If it were the duty of the court not to be impartial in the administration of justice to the few and the many, the feeble and the strong, but to be influenced by hope of favor and fear of personal consequences; if commanding a man to be smitten contrary to the law, when it is popular and safe to do so, were not an abuse of judicial power, an act of perjured tyranny and cowardly corruption, these harangues might be adapted to the occasion.

Whatever views the plaintiffs may entertain of the proper grounds of judicial decision, they repudiate the spirit of Unitarian Christianity, as set forth by its American apostle. “It is necessary that religion should be held and professed in a liberal spirit. Just as far as it assumes an intolerant, exclusive, sectarian form, it subverts instead of strengthening *272 the soul's freedom, and becomes the heaviest and most galling yoke which is laid on the intellect and conscience. Religion must be viewed, not as a monopoly of priests, ministers, or sects, not as conferring on any man a right to dictate to his fellow-beings, not as an instrument by which the few may awe the many, not as bestowing on one a prerogative which is not enjoyed by all, but as the property of every human being, and as the great subject for every human mind. It must be regarded as the revelation of a common Father, to whom all have equal access, who invites all to the like immediate communion, who has no favorites, who has appointed no infallible expounders of his will, who opens his works and word to every eye, and calls upon all to read for themselves, and to follow fearlessly the best convictions of their own understandings. Let religion be seized on by individuals or sects, as their special province; let them clothe themselves with God's prerogative of judgment; let them succeed in enforcing their creed by penalties of law or penalties of opinion; let them succeed in fixing a brand on virtuous men, whose only crime is free investigation; and religion becomes the most blighting tyranny which can establish itself over the mind. You have all heard of the outward evils which religion, when thus turned into tyranny, has inflicted; how it has dug dreary dungeons, kindled fires for the martyr, and invented instruments of exquisite torture. But, to me, all this is less fearful than its influence over the mind. When I see the superstitions which it has fastened on the conscience, the spiritual terrors with which it has haunted and subdued the ignorant and susceptible, the dark, appalling views of God, which it has spread far and wide, the dread of inquiry which it has struck into superior understandings, and the servility of spirit which it has made to pass for piety,--when I see all this, the fire, the scaffold, and the outward inquisition, terrible as they are, seem to me inferior evils. I look with a solemn joy on the heroic spirits who have met freely and fearlessly pain and death in the cause of truth and human rights. But there are other victims of intolerance, on whom I look with unmixed sorrow. They are those who, spell-bound by early prejudice, or by intimidations from the pulpit and the press, dare not think; who anxiously stifle every doubt or misgiving in regard to their opinions, as if to doubt were a crime; who shrink from the seekers after truth as from infection; who deny all virtue which does not wear the livery of their own sect; who, surrendering to others their best powers, receive unresistingly a teaching which wars against reason and conscience; and who think it a merit to impose, on such as live within their influence, the grievous bondage which they bear themselves. How much to be deplored is it, that religion, the very principle which is designed to raise men above the judgment and power of man, should become the chief instrument of ursurpation over the soul. Is it said that, in this country, where the rights of private judgment, and of speaking and writing according to our convictions, are guaranteed with every solemnity by institutions and laws, religion can never degenerate into tyranny; that here its whole influence must conspire to the liberation *273 and dignity of the mind? I answer, we discover little knowledge of human nature, if we ascribe to constitutions the power of charming to sleep the spirit of intolerance and exclusion. Almost every other bad passion may sooner be put to rest; and for this plain reason, that intolerance always shelters itself under the name and garb of religious zeal. Because we live in a country where the gross, outward, visible chain is broken, we must not conclude that we are necessarily free. There are chains not made of iron, which eat more deeply into the soul. An espionage of bigotry may as effectually close our lips and chill our hearts, as an armed and hundred-eyed police. There are countless ways by which men in a free country may encroach on their neighbors' rights. In religion, the instrument is ready made and always at hand. I refer to opinion, combined and organized in sects, and swayed by the clergy. We say we have no inquisition. But a sect skilfully organized, trained to utter one cry, combined to cover with reproach whoever may differ from themselves, to drown the free expression of opinion by the denunciations of heresy, and to strike terror into the multitude by joint and perpetual menace,--such a sect is as perilous and palsying to the intellect as the inquisition. It serves the ministers as effectually as the sword. The present age is notoriously sectarian, and therefore hostile to liberty. One of the strongest features of our times is the tendency of men to run into associations, to lose themselves in masses, to think and act in crowds, to act from the excitement of numbers, to sacrifice individuality, to identify themselves with parties and sects. At such a period, we ought to fear and cannot too much dread lest a host should be marshalled under some sectarian standard, so numerous and so strong as to overawe opinion, stifle inquiry, compel dissenters to a prudent silence, and thus accomplish the end, without incurring the odium, of penal laws. We have indeed no small protection against this evil, in the multiplicity of sects. But let us not forget that coalitions are as practicable and as perilous in church as in state; and that minor differences, as they are called, may be sunk, for the purpose of joint exertion against a common foe. Happily, the spirit of this people, in spite of all narrowing influences, is essentially liberal. Here lies our safety. The liberal spirit of the people, I trust, is more and more to temper and curb that exclusive spirit which is the besetting sin of their religious guides.” 4 Channing's Works 85.

**229 The plaintiffs seek a coalition reprobated by Channing; they rely upon influences execrated by MANSFIELD,--Rex v. Wilkes, 4 Burr. 2527, 2561, 2562, 2563,--and subversive of every principle of judicial duty. They would have a decision indorsing their own orthodoxy, and covering Abbott with reproach, not merely as an outcast from fashionable ecclesiastical society, but also as a heretic branded by law. The law does not authorize such a decision to be made upon any questions that can be raised either in this suit or in any other that can be brought.

If there were no such thing as constitutional parochial independence, and this meeting-house had been devoted to a religious use by ambiguous *274 terms in an ancient instrument, which left it doubtful whether a Unitarian use was authorized, and the plaintiffs had brought this suit to obtain an injunction against a Unitarian use, claiming that, by the true construction of the instrument, such a use was not authorized, there are authorities going to show that evidence of an original and long continued Unitarian use of the house would be considered by the court as furnishing ground for an inference that such use would not have been submitted to if it had been considered illegal. The Dublin case, 38 N. H. 512, 546. Although in this case there is such a thing as parochial independence; and although there is no ambiguity to be resolved; and although nobody claims that a Unitarian use is illegal,--the plaintiffs have offered evidence tending to show that the parish has employed Unitarian public teachers nearly forty years. They seem to understand that any parish can abolish the constitution of the state; and they seem not to understand that parochial independence includes the right of perpetual adherence, as well as the right of daily apostasy. They claim that the founders of this parish, by continuing to be Unitarians after they became a parish, lost their constitutional right to be anti-Unitarian. The manner in which the parish has exercised its independence, is put forward as proof upon which the court is asked to hold that its independence is extinguished. A constitutional right, decided to be worn out by a forty years' Unitarian use of it, might discourage those who have entertained a hope of the perpetuity of free institutions. But the danger has a certain limit. The list of Unitarian parishes in the Unitarian Year Book seems to show that at least thirty-seven (and probably many more) of those parishes were orthodox for the space of more than one hundred years before they became Unitarian, and some of them for the space of nearly two hundred years, the Plymouth parish of the pilgrim fathers, “founded at Leyden, Holland, 1602,” being one. It is only by a Unitarian exercise of the constitutional right of parochial independence, that the plaintiffs claim the right is annihilated.

Notwithstanding the unfavorable light in which all the evidence, admissible and inadmissible, presents the plaintiffs, they should be judged leniently, in consideration of the intemperate and blinding excitement with which human nature, engaged in any strife, is apt to be transported. Misrepresentations and distortions of facts, insinuations and calumnies poured out upon the victims, are what everybody expects the persecuting party to be guilty of. To that party, many of the best of men have generally belonged. And we ought not hastily to conclude that the plaintiffs are less respectable than the defendants. The scrupulously frank and fair, the singularly meek, gentle, and forbearing manner in which the evidence shows the defendants have carried themselves, under circumstances of extreme provocation, from the beginning of this controversy till now, may be due, in some measure, to peculiar and temporary influences. It is not improbable that there is something transient in the situation of the parties, that depresses the plaintiffs below, and exalts the defendants above, the real level of their characters.

**230 *275 But inadmissible evidence and extraneous considerations (upon which the plaintiffs rely, and which are as fatal to their case as the admissible evidence and the relevant considerations) must not be allowed to divert our attention from the legal views upon which alone the court is authorized to act. The questions presented are, whether “the meeting-house of said society” is under the control of an independent parish, and whether the parish has exercised and proposes to exercise its control for parochial purposes. These questions, by the plaintiffs' implacability, the court is constrained to answer, however unjustifiable and vexatious the further prosecution of the suit; and, upon legal grounds and legal evidence, they should be answered in the affirmative, and the bill should be dismissed.

These questions concern interests of greater consequence than the doctrinal sermons to be preached, by leave of the court, in the meeting-house of this parish. They comprise the inquiry whether this is an ecclesiastical court, with papal or prelatic powers and general jurisdiction in parochial heresy, liable to be called upon by parochial minorities to dictate the theology of every pulpit, superintend the clergy, and regulate the ordinances of religion. They involve the independence of every parish in the state, the parochial privilege of choosing public teachers, the sovereign prerogatives of electing and being elected to executive and legislative office, and the comprehensive birthright of religious freedom and equality. When such investigations are forced upon the court, and natural, unalienable rights, established institutions of society, and first principles of free government are attacked, under whatever pretexts or with whatever disclaimers the attack may be made, it becomes necessary to resist, with firmness proportioned to the vigor and audacity of the assault.

A division of society into two ranks, a theological aristocracy on one side, a lower caste on the other,--the former wielding all the instruments of the law and all the power of the government to degrade men of the faith of Jefferson, Franklin, Ethan Allen, or Governor Plumer; commanding what doctrines shall not be preached; suppressing the freedom of the pulpit; abolishing the rights of property given to independent religious uses; and confiscating such property for the use of a state religion,--all this is as repugnant to the plain and vital principles of the constitution, as to the sense and spirit of the people who made the constitution. The governmental work of that generation has been sufficiently extolled for eighty-five years past as a triumphant vindication of human rights, affording a sure protection against ecclesiastical oppression in particular, and perpetuating throughout the state such refuge as Wheelwright found for a season at Exeter in exile for conscience' sake. That work must be undone, and a degenerate age must be ready to welcome the return of the worse despotisms, before a system of religious caste can be introduced. When an infidel does not stand as well in law before the tribunals of justice as a Christian, in any sense of the word, our free institutions are a failure. To sneer at free-thinkers or free thought is to make a thoughtless use of free speech, *276 and to scoff at a privilege which we are bound to protect. The constitution does not assume to create religious rights or to distribute them. It reverently recognizes and maintains them as original and universal, as rights which human government can neither grant nor withhold, which are not of human tenure, and which no man can give up. A single unresisted infringement, established as a precedent, subjugates the weak, and leaves them at the mercy of the strong. Every man and every parish is liable to hold unpopular theological opinions. And when the right to hold and inculcate such opinions is not sacred, and the violation of it is not sacrilege; when the constitutional defences of that right are dismantled, and it is left with no better security than the generosity and tolerance of an ecclesiastical court, or the caprice of a ruling class; when freemen are reduced to the consolation of remembering that the writ for burning heretics is obsolete, and of hoping that civilization will not suffer it to be revived,--the theory of our government is exploded and its original authority at an end.

**231 Unless Abbott's religion is unconstitutional, the majority of this Dover parish, in allowing him to preach it “in the meeting-house of said society,” did what they had an obvious constitutional right to do. We cannot adjudge his faith to be a heretical departure from a state religion until we destroy the constitution, establish a state religion, and annex a supreme bishopric to the judicial office. If we can condemn this man as a heretic, and his religion as an offence against the state, or as legally inferior to any other, we can anathematize and outlaw any other person, and any other form of religion. Abbott's cause, strenuously opposed in the field of theology, becomes, in law, the common cause of religious liberty, and the indestructible interest of mankind. The decree cannot be aimed at him until it batters down constitutional bulwarks, erected by our ancestors for the defence of a possession, which, through ages of suffering and struggle, cost too much, and, after being long enjoyed in apparent safety, has been found worth too much, to be voluntarily surrendered.