Attorney-General v. Murdoch. In the evidence, whether documentary or parol evidence, there is not any thing that I have been able to discover leading or tending to a conclusion different, as concerning this part of the case, from that to which, in my opinion, the documents and circumstances that I have stated tend and lead, a conclusion, namely, against the appellants. It must necessarily, I think, on the materials before the court, be taken that, before and at the time of the institution of this suit, which was commenced in the year 1846, Mr. Murdoch had ceased to be and no longer was a minister of the Established Church of Scotland, had ceased to be and no longer was qualified to be a minister of that Church, had ceased to be and no longer was in communion with her. But then comes to be considered the proposition of the materiality of that state of things, the proposition affirmed by the relators and plaintiffs, and denied by the appellants, that by ceasing to be a minister of the Established Church of Scotland, by ceasing to be in connection with that Church, by ceasing to be in communion with her, Mr. Murdoch became disqualified and unfit to continue or be the minister upon the foundation in question. This point, depending on the evidence in the suit, considered with a due regard to the nature of the pleadings, is certainly, I think, not concluded by the deeds of 1717, 1719, 1734, and 1766, or any one or more of them, or any later deed; for I am clearly of opinion, that, neither the appellants' contention, nor the respondents' contention is inconsistent with the language of any one of those instruments. The litigants on each side say, that the congregation in question, is a congregation of "Protestant Dissenters," and so has always been; and assert therefore that Master John Turner's congregation was a congregation of Protestant Dissenters. The appellants and respondents differ, it may be, as to the meaning of the term. But that difference does not necessarily involve, does not necessarily imply, a contradiction of any one of the deeds on either side. The affirmation or the denial that the minister on this foundation must needs be in connection or communion with the Established Church of Scotland, or must needs be a minister of that church, may well be maintained by persons submitting to be bound by every word of each of the deeds. It may then be right to refer to some portions of the doctrine stated by Lord Eldon in the case of the Attorney General v. Pearson, where he is found thus expressing himself : "But there is another view in which the case should be considered, and it is this that where an institution exists for the purpose of religious worship, and it cannot be discovered from the deed declaring the trust what form or species of religious worship was intended, the court can find no other means of deciding the question than through the medium of an inquiry into what has been the usage of the congregation in respect of it; and if the usage turns out upon inquiry to be such as can be supported, I take it to be the duty of the court to administer the trust in such a manner as best to establish the usage, considering it as a matter of implied contract between the members Attorney-General v. Murdoch. of that congregation. But if, on the other hand, it turns out, (and I think that this point was settled in a case which lately came before the House of Lords, by way of appeal out of Scotland,) that the institution was established for the express purpose of such form of religious worship, or the teaching of such particular doctrines as the founder has thought most conformable to the principles of the Christian religion, I do not apprehend that it is in the power of individuals, having the management of that institution, at any time to alter the purpose for which it was founded, or to say to the remaining members, 'We have changed our opinions; and you who assemble in this place for the purpose of hearing the doctrines and joining in the worship prescribed by the founder, shall no longer enjoy the benefit he intended for you, unless you conform to the alteration which has taken place in our opinions.' In such a case, therefore, I apprehend, considering it settled by the authority of that I have already referred to, - that where a congregation become dissentient among themselves, the nature of the original institution must alone be looked to as the guide for the decision of the court, and that to refer to any other criterion, as to the sense of the existing majority, -wonld be to make a new institution, which is altogether beyond the reach and inconsistent with the duties and character of this court. - "In this view of the case it is of the first importance to see what the record before the court says upon the subject of the original institution. "It is also clearly settled that if a fund, real or personal, be given in such a way that the purpose be clearly expressed to be that of maintaining a society of Protestant Dissenters,-promoting no doctrines contrary to law, although such as may be at variance with the doctrines of the established religion,-it is then the duty of this court to carry such a trust as that into execution, and to administer it according to the intent of the founders. In this case it is impossible to doubt that the trust was originally created for the purpose of maintaining a Protestant dissenting institution; and it would be doing violence to the intention of the parties to these deeds to say that the worship and service of God, being the object expressed by them, the trust must be administered in such a way as to maintain the religion of the Established Church. Nevertheless, I take it from the experience of many years in this court, that if any body of persons mean to create a trust of land or money in such a manner as to render the gift effectual, and to call upon this court to administer it according to the intent of the foundation, whether that trust has religion for its object or not, it is incumbent on them in the instrument by which they endeavor to create that trust to let the court know enough of the nature of the trust to enable the court to execute it; and, therefore, when a body of Protestant dissenters have established a trust without any precise definition of the object or mode of worship, I know no means the court has of ascertaining it except by looking to what has passed, and thereby collecting what may by fair inference be presumed to have been the intention of the founders. "And with respect to the clause which invests the trustees or the Attorney-General v. Murdoch. major part of them with the power of making orders from time to time upon matters relating to the meeting-house, I think it would be doing violence to all the principles of construction upon which we act to understand it as meaning that those trustees or the major part of them should have power to convert that meeting-house, whenever they thought proper, into a meeting-house of a different description, and for teaching different doctrines from those of the persons who founded it and by whom it was to be attended; I say that appears to me to be as inconsistent with the probable meaning of the original founders as it would be to hold that they meant it should be converted, at the discretion of the trustees, into a place of worship according to the form and doctrines of the Church of England. "Upon the provisions of this deed there arises a question (upon which usage will have great effect,) whether, according to the original constitution of this society, the minister, preacher, or pastor could be appointed for three years only, or whether, according to the general principles of this body of dissenters, the congregation and minister might agree that the one will give and the other accept a nomination for three years only. It appears highly probable that the person who gave this part of the fund contemplated a provision for the minister for his life, since he has expressly given it to him for life, even when he could no longer officiate as minister; but on the other hand, it may turn out to be established by usage that he was only a temporary minister elected with the concurrence of the congregation, and liable to be removed in the same manner as he was called upon to officiate." It is to be observed, that (subject possibly to the question, if it is a question, whether Erastianism, or an opinion favorable to Erastianism, or analogous to Erastian views, is an opinion belonging to religious belief or religious doctrine,) the dispute before us is not one that concerns religious belief or religious doctrine, or, except as to the quali fication of the pastor or minister, the form or manner of conducting divine worship. But it cannot, I think, be considered that the manner of conducting divine worship is not at all touched by the question to what church, in point of discipline, the minister belongs, or the question whether, through his own conduct and proceedings, he has ceased to be a member of that church of which, when chosen, he professed, and must, by the electors, have been thought to be a member. Nor, if the manner of conducting divine worship is not so touched, does it seem to me that Lord Eldon's doctrine is inapplicable to the mere qualification of the minister in other respects than those points of opinion upon which the plaintiffs and defendants here are agreed. Now, it appears to me to be a just inference from the pleadings and evidence, and to be a fact established, that the congregation in question was, at the time of its original foundation in the latter half of the seventeenth century, and has thenceforth to the present day continually been in theory, opinion, views, and profession, Presbyterian. Indeed, in a very early part of the appellants' first answer, they state their belief "that the doctrines, government, and discipline" of this "congregation, from the time of their first assembly down to the time of putting VOL. XII. 9 Attorney-General v. Murdoch. in that answer, have always been such as were held and maintained by the Presbyterian Church in England" in the year 1685, and such as are contained in the standards called in the same answer the Westminster Standards, and which standards (it states,) " are also the standards of the Church of Scotland as formerly and as now established." It appears to me proved also that, during fifty years (at least) next before the election of Mr. Murdoch, and during sixty years (at least) next before the commencement of this suit, the uniform course, usage, and practice of the congregation in question, and its trustees, - the uniform plan and system upon which the property in question has been administered by the persons claiming, for the time being, under the conveyance of 1734,-were, as concerning the choice, appointment, ordination, and settling of the pastor or minister in accordance and conformity with the course pursued as already mentioned, when Mr. Murdoch was elected, appointed, ordained, and settled, and therefore support (I do not say conclusively establish) the contention of the relators and plaintiffs in this respect. It must upon the evidence be taken that, for full fifty years next before Mr. Murdoch's election, for full sixty years next before the institution of the suit, during which period more than five pastors or ministers have been chosen and appointed, each one of them who preceded Mr. Murdoch was, when chosen, a licentiate of the Established Church of Scotland, or an ordained minister of that church,was, when first settled in the office, an ordained and a recognized minister of that church, and so continued while in connection with this foundation. Then, with regard to the period, more than fifty years before Mr. Murdoch's election, and more than sixty years before the commencement of the suit, Mr. Ogle (an Englishman, I believe, who held the living of Berwick at the time of the death of Oliver Cromwell, and was, upon or soon after the Restoration, ejected from it,) seems to have been the founder and first pastor or minister, or at least the first pastor or minister of this congregation, which may safely, I think, be taken to have had its origin and commencement between the Restoration and the Revolution. He died in the year 1696, I believe, and seems to have been immediately or otherwise succeeded in the office of its minister by Mr. John Turner, whose name is mentioned in the conveyance of 1766, probably an Englishman also. He died, I think, in 1760, and was succeeded immediately, or otherwise, by Mr. Gardner, who died, I believe, between 1777 and 1781, and whose immediate successor was Mr. Aitchinson, who was or had been a licentiate certainly of the Established Church of Scotland, and seems to have held the office of pastor or minister on this foundation for a period of fifteen years and upwards, commencing from the year 1781, or earlier. Of these gentlemen there is not, I think, the least reason to believe that any one was an EpiscopalianEpiscopalian-or not a Protestant Dissenter or not in theory-not in opinion—not in profession not, so far as possible, in practice a Presbyterian. or The question, then, appears to be, whether it was originally, or had, before the election of Mr. Murdoch, become, in an effectual manner, Attorney-General v. Murdoch. a private law or governing and binding regulation of this congregation of this religious institution and foundation—that its minister or pastor at all times should be in communion with the Established Church of Scotland should be, or have been, a licentiate of the Established Church of Scotland, and should be a minister of that I understand, however, the appellants to contend, in effect, not only that there is no such private law, no such governing regulation, but moreover that none such could effectually have been made, unless before or contemporaneously with the original formation of the congregation in the seventeenth century, or at least before or contemporaneously with the acquisition of the meeting-house, or its site, for the purposes of the congregation. To this I do not agree. It appears to me to be competent to a congregation of dissenters, acting unanimously, and with the concurrence, where they have trustees, of those trustees, to introduce effectually into their system and constitution new regulations from time to time-regulations at least not in contravention of any deed of trust or of foundation not subversive of the original system or constitution—not opposed in principle to it. Whether the unanimous votes of an entire congregation, and their trustees, could be of such force as to convert a Trinitarian into a Socinian foundation, a Protestant into a Popish, a Presbyterian into an Episcopalian institution, is not a point before us. The congregation and foundation to which this suit relates were originally, are, and have ever been Presbyterian; nor is any thing sought by the information and bill, or done by the decree, not consistent with Presbyterianism, or not within Presbyterian limits. My opinion is, that upon the assumption (for the purpose of the argument,) that before the year 1720, or before the year 1767, it was not necessary that the pastor or minister of this congregation should be, or have been, a licentiate of the Established Church of Scotland - should be a minister of the Established Church of Scotland, or should be in a state of communion with that church; it was competent to the entire congregation for the time being acting unanimously, and with the concurrence of their trustee or trustees, if any, for the time being, to resolve and agree effectually, (I am not saying irrevocably,) that every future minister or pastor should be a person in communion with the Established Church of Scotland, should be, or have been, a licentiate of the Established Church of Scotland, and should be a minister of that church. Such a resolution, such an agreement, was not, nor would be, to extend or change, though it was, or might be, to restrict the class from which the minister or pastor of the congregation was to be chosen; nor could such a restriction, whether likely or unlikely to be approved by all rational and pious Presbyterians, be in the unquestionable circumstances of the case, considered absurd, or necessarily mischievous, necessarily inexpedient, or necessarily unprincipled. I think it to be a just and correct inference from the whole of the admissible evidence, that long before the vacancy caused by the death of Mr. Murdoch's immediate predecessor upon this foundation, Mr. Crambe, because before Mr. Crambe's appointment or election,it was determined by the congregation-the whole of the congrega |