
    Heman Stebbins versus Calvin Jennings.
    Where a parish or religious society is, by its constitution, limited to any place, the church of such society is equally limited, being indissolubly connected with such society ; so that an adhering minority of the church, and not a seceding majority, constitutes the church of such parish or religious society, to all civil purposes.
    A church, connected with a parish, is not a corporation or quasi corporation for the purpose of holding property.
    The body of communicants gathered into church order, according to established usage, in any town, parish, precinct or religious society, established according to law, and actually connected and associated therewith, for religious purposes, for the time being, is to be regarded as the church of such society, as to all questions of property depending upon that relation.
    Upon the dissolution of the connexion between a minister and a parish, he ceases to be the pastor of the church in such society; and a reservation, with the assent of the church and the society, of the right to retain his relation as pastor of such church, is nugatory and void.
    Trover. The opinion of the Court, drawn up by Shaw C. J., contained the following statement of the facts.
    This action of trover, for certain tankards, and other articles of church furniture, comes before the Court upon an agreed statement of .facts. The plaintiff claims the property of these articles, in his official capacity, as deacon of a church in Brookfield, and in that capacity he made a demand therefor before the action was brought; and the defendant, admitting that he was in possession of the articles, and insisting on his right to retain them and withhold the possession from the plaintiff, refused to deliver them, and claims property therein, as deacon of the same church. This was sufficient evidence of conversion, if the property was in the plaintiff; and this therefore is the sole question. Both parties rely upon the statute of 1786, which provides that all grants and donations of property, real or personal, made to churches, shall vest in the deacons thereof in their official capacity, to hold to them and their successors in the same office. These terms “ grants and donations, whether real or personal,” seem comprehensive enough to embrace any mode in which property can be acquired, and any species of property; and therefore all property, whether acquired by gift or purchase, or in whatever mode conveyed, for the use and benefit of a church, by force of the statute, vests in the deacons thereof, so that the legal property is in them, though held for the use and benefit of such church. The question in controversy then resolves itself into this ; which of the churches, namely, the one represented by the defendant, or the one represented by the plaintiff, is beneficially entitled to the property thus claimed.
    It is agreed that the property was once beneficially the property of a congregational church in Brookfield, called “ The Church in the Third Precinct in Brookfield.” A part of the furniture in question was, bequeathed to the church, by this designation, by a Mrs. Bartlett, and was received by the church in 1772 ; in regard to the remainder, it is not particularly known how it was acquired. This circumstance, however, is immaterial, it being admitted, that however acquired, the property of the whole vests in the samé manner, the legal property depending not upon the mode of acquisition, but upon the identity of the church, which is beneficially interested. Previously to the incorporation of the town of North Brookfield, - in 1812, there were three territorial parishes in Brookfield, and the above designation “ the Third Precinct in Brookfield,” was sufficiently accurate and descriptive. But by the incorporation of the second parish into a distinct town, it in some measure ceased to be so ; and the third precinct was therefore sometimes called the second society or parish in Brookfield, and sometimes the South Parish ; but it is agreed that all these names designated but one religious society, which was that incorporated by the name of the third precinct, in the year 1756, and over which Mr. Stone was settled in 1801. The furniture in question was used by the said church, in the third precinct, until the formation of the Evangelical Society in 'Brookfield, with which the major part of the individuals, then constituting the said church, united, and have ever since worshipped, having filed with the clerk of the third precinct, certificates of their having become members of the Evangelical Society, and thus ceased to be members of the third precinct. In April 1827 the civil contract of Mr. Stone, the ordained minister of said precinct, ceased by mutual consent. In the contract of dissolution between the parish and Mr. Stone, the latter reserved the right to be still deemed the pastor of the '.hurch existing in that society, and to have the occasional use of their meetinghouse, until it should be occupied by some person engaged by the parish to which reservations the parish, as far as their rights were concerned, assented. In May 1827, a major part of said church, including the deacons, with others, constituting a minority of the parish, commenced attending upon the ministrations of Mr. Stone, at a place in the vicinity of the meetinghouse, and continued so to do till the 24th of August of the same year, when, by a written agreement, they formed themselves into a new religious society, under the name of “ The Evangelical Religious Society in the South Parish or Precinct of Brookfield.” This agreement recites the dissolution of the civil contract between Mr. Stone and the said congregational society, contrary to their wishes, and against their individual counsels, and that the pulpit of said parish had been supplied by said society with teachers, who, in their opinion, inculcated doctrines and precepts contrary to those taught in the bible, and therefore they united together as a society, under the name above mentioned, for the purpose of supporting public worship and receiving religious and moral instruction, agreeably to the dictates of their consciences, and agreed to conform to the laws of the Commonwealth, in relation to religious societies formed for such purposes. The society was formed and organized under the statutes of 1811, c. 6, and 1823, c. 106, and gave to the members composing it, certificates of membership, which were duly filed with the clerk of the third precinct, and thereby the said members became exempt from the payment of taxes, and from all other duties and obligations as members of the parish, and ceased to be members thereof. Two of the male members, and a number, though a minority, of the female members, remained with the old society. This society shortly after settled the Rev. Mr. Noyes, and for convenience may be designated Mr. Noyes’s society. On the 9th of October, an ecclesiastical council, convened at the request of Mr. Stone and that part of the church that attended his ministry, came to a result, approving of the course pursued by them, and recommending to them to make great exertions and sacrifices, to support their pastor separately from the parish, and maintain public worship, and if necessary, to apply to a missionary society for aid. In November 1827, a majority of the male members of the said third church, as it existed previously -to the formation of the Evangelical Society, Mr. Stone continuing to act as their moderator and pastor, at a church meeting duly notified, voted to unite with the Evangelical Society, in the support of public worship. In December, this society formally invited Mr. Stone to act as their minister ; and from August preceding, till the time of the .commencement of this action, the said major part of said church attended public worship in such places as could be conveniently obtained, in conjunction with the Evangelical Society, celebrating from time to time the Lord’s Supper, under the pastoral care of Mr. Stone.
    The two remaining male members of Mr. Noyes’s society, upon due notice of a church meeting, proceeded to act as the church of that society, by joining in the call to Mr. Noyes, uniting with the parish committee in calling an ordaining council, and in admitting other members. In October, these two members, assuming to act as the church of the third precinct, proposed a mutual council to Mr. Stone to dissolve his relation to the church, but Mr. Stone refused to.recogize them as such church, and for this and other causes, no council was called for this purpose. The ecclesiastical council, called to assist in the ordination of Mr. Noyes, recognized these two members and their associates, as the third church, and proceeded to ordain Mr. Noyes, as the minister and pastor of the third church and society in Brookfield. From the settlement of Mr. Noyes, the said two members and their associates, claiming to be the said first mentioned church in the third precinct in Brookfield, have acted as a church under his pastoral care, admitting new members, attending upon the communion, and continuing from that time to be associated with said third precinct. Of this church the plaintiff was duly elected sole deacon. Both of these bodies claim to be the true church, and each of them, by some official act, has passed some censure upon the members of the other, and upon their claims and proceedings.
    The case was argued in writing.
    
      Hoar and Burnside, for the plaintiff,
    referred the Court to Baker v. Fales, 16 Mass. R. 488, and The Deacons of the First Church in Sandwich v. Tilden, there cited, as fully sustaining the claim of the plaintiff.
    
      L. Strong, for the defendant,
    attempted to distinguish the case of Baker v. Fales from the case at bar, insisting that the only point decided in that case was this, that if property be devised to a church, in trust, and for the benefit of a parish connected with it, and the church secede from the parish, a new church, formed within the parish, and in connexion with it, will be entitled to receive the property from the seceding church; and that the principle settled by the Sandwich case was substantially the same.
    Presuming therefore the questions arising in this case to be entirely open to counsel, he proceeded to consider the case under three distinct propositions.
    I. The congregational churches of Massachusetts, regularly gathered, are and always have been distinct from the towns, parishes, and congregations, with which they may have been associated in public worship.
    And the correctness of this position, in relation to churches and congregations, he argued, from the solemnity with which churches were formerly gathered ; 1 Savage’s Winth. 180 ; from the limited number of their original members ; 1 Sav. Winth. 95 ; 1 Hutch. Hist. 18 ; Morton’s Mem. 160; from the rigid exactness practised in ascertaining the character of those about to become such ; Cambridge Platform, ch. 12, § 1 ; Hub. Hist. 537 ; 2 Math. Mag. 183 ; from the privileges and powers intrusted to these bodies by law ; Old Col. Laws, 56 ; Anc. Ch. 104 ; from the loud complaints of those who were excluded ; 1 Hutch. Hist. 137 ; Hub. Hist. 500, 515 ; and from the seventy with which all interference With r’ghts of the churches was punished ; Anc. Ch. 104.
    And this distinction between churches and congregations was supposed to exist also between churches and towns, (Old Col. Laws, 43, 147 ; Prov. St. 4 & 5 W. & M. c. 20 ; Prov. St. 7 Will. 3, c. 9,) and churches and parishes, the duties of the latter having been pointed out for the first time in 1702, (Prov. Laws, 141,) and the distinction between them and churches having been repeatedly recognized by judicial decisions. Burr v. First Par. in Sandwich, 9 Mass. R. 297 ; Gridley v. Clark, 2 Pick. 410.
    II. To some extent and for some purposes at least, the churches sustain a corporate character.
    It is altogether unimportant, whether they are strictly corporations, or merely qua corporations, bodies recognized by law, enjoying certain privileges, and made capable of perpetual succession. Riddle v. Merrimack Locks and Canals, 7 Mass. R. 187 ; Fourth School Distr. in Rumford v. Wood, 13 Mass. R. 193 ; 2 Kent’s Comm. 224. Nor is any particular form of words necessary to create a corporation ; but corporations may be created by intendment, or implication. Danv. Abr. Corp. F; 1 Kyd on Corp. 2; Case of Sutton’s Hospital, 10 Co. 30 ; 1 Bl. Comm. 474 ; Aldermen of Chesterfield’s case, Cro. Eliz. 35 ; Dyer’s Rep. 100, pl. 70 ; Russell v. The Men of Devon, 2 T. R. 672. And it is entirely immaterial also, whether these bodies are established with a view to purposes of a mere secular nature, or exclusively for the advancement of religion. 1 Bl. Comm. 467.
    It seems to be plain, therefore, that if churches have an existence in contemplation of law for any purpose, and are made capable of an indefinite duration for the accomplishment of that purpose, they sustain to this extent a corporate character.
    And it was thereupon urged, that the defendant’s position, as to the corporate character of churches, was correct.
    
      1. Because of the authority given for their establishment and self-perpetuation. Old Col. Laws, 43.
    2. Because of the exclusive power they possessed for more than half a century, in the election of ministers for themselves, and the towns in which they were planted ; and the controlling influence they were authorized to exercise, in reference to the same subject, for nearly a century afterwards. Old Col. Laws, 43, 46 ; Cambridge Platform, ch. 6 and 8 ; Hub. Hist. 537 ; Prov. St. 4 & 5 W. & M. c. 20 ; Prov. St. 7 Will. 3, c. 9 ; Baker v. Fales, 16 Mass. R. 515 ; Avery v. Tyringham, 3 Mass. R. 180.
    3. Because of the great civil privileges, exclusively enjoyed in early times by their members. Old Col. Laws, 56.
    4. Because certain powers having been granted to them, the right of holding such property, as was requisite to the exercise of those powers, must have been given them by implication. Old Col. Laws, 43 ; Burr v. First Par. in Sandwich, 9 Mass. R. 297.
    5. Because the deacons of churches, being constituted by law a body corporate for certain purposes, the body, by which that class of officers is to be appointed, advised, and brought to an account, must of necessity have a perpetual, and to some extent, therefore, a corporate existence.
    The very form and fashion of the statutes of 1754 (Prov. St. 28 Geo. 2, c. 9,) and 1785, c. 51, induce a violent presumption, that the legislature regarded the churches as sustaining, for some purposes, prior to 1754, a corporate character.
    But even if it were otherwise, how are the deacons of the churches since to take in perpetual succession, without the existence of some body, in which is supposed to be vested the power of successive appointments to that office ? By whom are they to be appointed ? By the churches. The churches then are supposed by law to have a perpetual existence for that purpose ; and if so, they must be qua corporations.
    The churches "have power also to choose a committee to call the deacons to an account, and this provision, if it mean any thing, must confer a power corresponding in its extent or duration with the extent or duration of the estate vested in those who are to render it. But that is an estate in perpetual succession ; and the power given, therefore, must be perpetual, and the body by which it is to be executed, must have a perpetual existence.
    And he committee, thus chosen, are authorized, not only to call the church officers to an account, but to commence and prosecute any suits touching the same. But how are such suits to be prosecuted ? In the name of the church ? Then the church must be a corporation. But if in the name of the committee, a committee of what body ? chosen by whom ? The church. Their character then must be disclosed upon the record, and the church to this extent must possess corporate powers.
    “ There are many instances, in the law, of collective bodies of men, coming under one general description, endowed with a corporate capacity in some particulars expressed, but who have, in no other respect, the capacities incident to a corporation. Thus, in England, under the statute of Winchester, the hundred can be sued in its collective capacity.” Jackson v. Hartwell, 8 Johns. R. 332. “ And when the legislature gave the action,” Lord Kenyon said, “ they virtually gave the means of maintaining that action ; they converted the hundred into a corporation for that purpose.'1'1 Russell v. The Men of Devon, 2 T. R. 672.
    6. Because these proceedings are matter of record, and may be proved by a certified copy of the votes under the hand of the proper recording officer, or at least by the production of the record itself. Goss v. Inhabitants of Bolton, determined in 1778.
    And the want of a corporate name or common seal was considered by the counsel to be of no importance. 1 Bl. Com. 475 ; l Salk. 191 ; 2 Kent’s Comm. 235 ; Fourth School Distr. in Rumford v. Wood, 13 Mass. R. 199.
    The argument under the second proposition was concluded by a reference to the opinions of Mr. Wise, Judges Dana and Lowell, and others. 2 Sav. Winth. 93 ; Hub. Hist. 412 ; Vind. of N. E. Churches, 9 ; Church’s Quarrel espoused, 17 ; Goss v. Bolton, determined in 1778 ; Strictures on Rev. Mr. Thacher’s pamphlet, (published in 1784,) 22; Month. Anthol., Nov. 1806, p. 614 ; 1 Sav. Winth. 95, note.
    III. A church may be dissolved by the death of all its mem hers, or the destruction of an integral part, as perhaps the death of all its male members, or its own voluntary determination to that effect; but except in case of a forfeiture of its privileges by non-user, in no other way. 2 Kyd on Corp. 447, 448, 465, 474 ; Terrett v. Taylor, 9 Cranch, 52 ; 2 Kent’s Comm. 251.
    But with a view to disproving the identity of the church, or the truth of the defendant’s position as to the dissolution of churches, it may be objected,
    1. That persons, once members of the church, when ceasing to be members of the parish with which the church is connected, cease also to be members of the church. Baker v. Fales, 16 Mass. R. 504.
    It was insisted, however, that this objection could not be sustained, and was altogether inconsistent with the original constitution of the churches, and their practice in ancient and modern times. Platform, ch. 13, § 6, 7 ; 2 Sav. Winth. 331 ; 16 Mass. R. 504, 513 ; Burr v. First Par. in Sandwich, 9 Mass. R. 297 ; Gridley v. Clark 2 Pick. 403.
    2. That it is essential to the existence of a congregational church, that it should be connected with a parish, or some other distinct religious community. 16 Mass. R. 504.
    But whence, inquired the counsel, could a principle, so utterly subversive of the independence of the churches, have been ' derived ? And he proceeded to consider, at some length, the arguments urged in support of it, insisting that they were all either irrelevant or untenable.
    3. That when a church withdraws from a society with which it has been connected, it loses its civil character and legal rights, as a church, although at the same moment it joins another society. 16 Mass. R. 503.
    Two arguments were supposed to be offered in support of the second objection as it is extended in the third.
    1. That though many instances may have occurred, of the removal of church members from one church or place of worship to another, and no doubt a removal of a majority of members has sometimes occurred, we do not hear of any church ceasing to exist while there are members enough left to do church service. 16 Mass. R. 504. But it is obviously unimportant, whether one member or a majority of members remove, or whether from the church as a body, or from the place of worship. If they are regularly dismissed, they cease to be members ; if not, they continue members ; and in eithei case we hear nothing of the church ceasing to exist, as it still lives, and is known to live.
    2. That very glaring evils'would result from the power of removal contended for by the defendant. 16 Mass. R. 506. But a possible abuse of privilege furnishes no sufficient ground for withholding it altogether ; and whatever these evils may be, this power of removal has been possessed and exercised from the first settlement of Massachusetts. As in' the case of the first church in Boston, 1 Holmes’s An. 267 ; 1 Sav. Winth. 95, note ; the church in Dorchester, 1 Sav. Winth. 95, 194 ; Hub. Hist. 187, 307 ; the church in Cambridge, Hub. Hist. 307 ; 1 Sav. Winth. 179, 183, 187 ; and the church in Rowley, 1 Sav. Winth. 278, 279. See also 2 Pick. 403.
    The counsel having thus endeavoured to establish his three general positions, but one topic of discussion was supposed to remain, — Is the defendant church, supposing those propositions established, the church to which the bequest was made ?
    Perhaps it may be objected, that the property was bequeathed to the church in the third precinct in Brookfield, and not to the church connected with the Evangelical Society in Brookfield. But to this the defendant’s answer is twofold : — 1. That corporations may be known by several names, as well as individuals ; 7 Mass. R. 444 ; and 2. That the identity of a body corporate, like each of our churches, must be shown by its records ; (1 Sav. Winth. 95 ;) and these must be, as they are, in the hands of the defendant.
   Shaw C. J.

drew up the opinion of the Court. [After stating the facts as before mentioned.] From this statement of facts, condensed as far as possible, from the case made by the parties, and the documents» therein referred to, the question again recurs, which of these two bodies, thus formed and organized, can best claim, in a legal sense, to be “ The Church in the Third Precinct in Brookfield,” and to have the beneficial interest and property in the church furniture in question. The defendant being in possession, will not be disturbed in that possession, unless the plaintiff can show a better legal title, and therefore the burden of proof is upon him to establish such title. But as all the material facts upon which that title is founded, are agreed, and as it is manifest that the legal property is in one or the other of them, so that disaffirming the title of either, necessarily affirms the title of the other, the rule in regard to burden of proof will afford very little aid, in deciding the question.

That an adhering minority of a local or territorial parish, and not a seceding majority, constitutes the church of such parish to all civil purposes, was fully settled in the case of Baker v. Fales, 16 Mass. R. 503, and Sandwich v. Tilden there cited. This, if considered a binding authority, would be sufficient to settle this case in favor of the plaintiff. So it seems to have been considered by the counsel respectively ; and the free, able and very elaborate argument of the defendant’s counsel, consists mainly of a revision of the positions advanced, and the points decided in that case.

■ The propositions maintained by the learned counsel for the defendant are,

1. That the congregational churches of Massachusetts, regularly gathered, are, and always have been, entirely distinct from the towns, parishes and congregations, with which they have been associated in public worship : —

2. That to some extent and for some purposes, at least, they sustain a corporate character : —

3. That a church can only be dissolved by the death°of its members, its own voluntary determination to that effect, or by a forfeiture of its privileges by non-user.

Without examining these propositions in detail, it is obvious to remark, that it may be very true that churches in this Commonwealth are, and always have been, distinct from the towns, parishes and congregations, with which they are associated, and yet it by no means follows that a church, as such, in legal contemplation, can exist, except as incident to, or connected with some parish or religious society. They may be distinct, as having distinct powers and functions, distinct rights, duties and obligations, and yet cannot exist independently of the parish or congregation in which they are gathered. A familiar instance of such distinct character and functions, with such dependent existence and indissoluble connexion, is that of deacons of a church, who are expressly declared to be a corporation, with succession. As such corporation, they have distinct powers and functions, and constitute an entirely distinct body from the church, by whom they are elected, and with whom they are associated. But notwithstanding they are thus distinct bodies, they cannot separate themselves-from the churches,- with which they are connected, and still claim to act as corporate bodies. By the very act of secession, they would cease to be deacons of such church, and thereby cease to possess the character in which alone their power to act as a corporation subsisted, and these powers vest in their successors. It follows, therefore, we think, that though distinct bodies, they are incident to, and indissolubly connected with the churches from which they emanate.

This analogy, we think, will be more obvious, by considering what the nature of a congregational church is, as gathered and constituted in the various towns, parishes and religious societies of Massachusetts. The church is composed of those persons, being members of such parish or religious society, who unite, themselves together for the purpose of celebrating the Lord’s Supper. They may avail themselves of their union and association, for other purposes of mutual support and edification in piety and morality, or otherwise, according to such terms of church covenant, as they may think it expedient to adopt. But such other purposes are not essential to their existence and character as a church. Such is the genera] definition of a church. Perhaps the churches in colleges may be considered as exceptions ; these cases, however, are few and anomalous, and can hardly affect the general rule. But even there, the college itself would probably be considered as giving locality and identity to such church. Suppose a majority of the church of Harvard College, dissatisfied with the theological instruction given them, or for other causes satisfac tory to their own consciences, should determine to remove with their officers, the|r records and their furniture, to Amherst College, for instance, would they and their successors still claim to be the church of Harvard College, and would the property, before given, or which might at all times thereafter be given to the church of Harvard College, vest in the body thus transferred to Amherst and their successors ?

Possibly other exceptions may be imagined, as associations of pious persons, formed in remote and unincorporated settlements, for the purpose of celebrating the Christian ordinances. Such an association, perhaps, might, to many purposes, be denominated a church. Such cases would not affect the general question. It would be sufficient for the purposes of the present inquiry, to consider the description of a-church here given, as applying to a local or territorial parish ; but we can see no reason why it should not apply to all cases of churches gathered in and associated with a poll parish, or other organized religious society.

To this view of a church, as necessarily incident to, and connected with some congregation or religious society, it may perhaps be objected, that in order to the existence of an association of Christians, united for the celebration of Christian ordinances, and the enjoyment of Christian privileges, it presupposes the necessity of a union with persons, not entitled to participate in such celebration, or to enjoy these privileges, which would be incongruous. But we think there is no substantial ground for this objection. A congregation may be imagined, every individual of which may be a church member. In this case, the same body of individuals would possess two distinct capacities, having certain rights, duties and obligations in each. This is no anomaly in the law. It is strictly analogous to the case of a town acting at the same time as a town and a parish, of which there are, or recently were, hundreds of instances in the Commonwealth. In that case, one corporate organization is commonly used for both these purposes. The town settles a minister and makes other contracts of a parochial nature; it also establishes schools, engages instructors, and makes contracts in regard to other municipal objects. It also purchases and receives grants, donations, and conveyances of property, real and personal, some expressed to be for the support of a minister, and others for the support of schools, all of which are, or may be, held and managed under one corporate organization, and by one set of officers. Afterwards, a part of su< h town is set off into a distinct territorial or poll parish, and the remainder of the town, by law, becomes a parish. Here it *s man*festi that as all those who compose the town, no longer compose the parish, the two capacities can no longer subsist together in the same body, and a distinct organization becomes necessary. But there is no difficulty in recognizing these two distinct capacities, whilst they subsisted together. For, after the separation, all those rights, duties and obligations, which belonged to the town in its parochial character, devolve upon that portion of its inhabitants, who by operation of law become successors to the town in that capacity ; whilst all those which belonged to the town in its municipal character, continue so to belong, notwithstanding the erection of a new parish. And it may be remarked in passing, that this is equally the case, where the persons, who are formed into one or several new parishes, constitute a great majority of the inhabitants of the town. Those who become the successors of the town in its parochial capacity, succeed to the whole of its parochial rights, although they constitute but a small minority of its inhabitants.

So with regard to the church and congregation, they may be, though they rarely are, composed of the same individuals ; in which case the same body may be regarded in two distinct capacities. To illustrate this, suppose ten young married men procure from the government the grant of a township of land, and settle upon it, get incorporated as a town, and settle a minister, all with their wives being members of the church in full communion. Here the town, parish and church are all composed of the same individuals. They are, however, to be regarded as three distinct bodies, for different purposes known to the law, or, what is in effect the same thing, a body with three distinct capacities. In this state of things, property is given to this body, by any designation sufficient to identify it, by one person to procure a service of church plate, by another to support a teacher of piety, religion and morality, and by another to support a school. The year after, several persons move into this town, become proprietors of lands and houses, by purchase and lease, and as such, settled inhabitants, but who are not church members. They attend public worship, and are assessed for their polls and estates, to the parish tax. Here the distinction, between church and parish, which all along existed in contemplation of law, becomes manifest and takes effect in practice. Those only who are church members, will constitute the church ; and all property that had been given to the original body, which by the express terms of thd grant was limited to the use, or given in trust for the church, or which, from its nature, the law will presume to have been so intended, vests defacto in those, who, by law, are constituted a corporation to take property for the use and benefit of the church. In the case supposed, the service of plate, whether given to the church or parish, or by whatever designation, as it could only have been designed to be used in the celebration of the Christian ordinances, would by law vest in the deacons, the law implying from the nature of the property, that such was the tru'st intended by the donor. All the other property would remain vested in the town, in its municipal or parochial capacity. Again should a part of the inhabitants be incorporated into a parish, the remainder, whether a majority or minority of the whole, would become a parish ; and here the distinction of capacities, into municipal and parochial, which had before existed, would take effect in practice. That portion of properly which had been given to the town for the support of public worship, or from its nature was obviously adapted to that purpose, would be deemed to have vested in the town in its parochial capacity, and would vest in the parish, becoming its successor ; whilst that given to the same town by the same name, for the support of schools, being for a municipal purpose, would be deemed to have vested in the town 'in its municipal capacity, and so would remain vested in the town, notwithstanding the change in its parochial character. This familiar instance may serve to illustrate the point, that there is no incongruity in saying that a religious society and a church are, to many purposes, distinct bodies, associated for distinct purposes, and having distinct rights, and yet may be composed of the same individuals. When thus composed, which case rarely happens in fact, though these distinctions may exist only ■n contemplation of law, they are nevertheless plain and real ; but when one or more individuals are members of the society, but not of the church, the distinction becomes practical, and relates back to all grants, contracts and other acts done, and rights acquired, when the same individuals were associated in different capacities.

From these views, it seems evident, that the identity of a congregational church, used in the sense already explained, must be considered as depending upon the identity of the parish or religious society, with which it is connected. In this view, its identity may or may not depend upon locality. If the religious society, with which it is connected, may change its place of meeting and worship, without affecting its identity, as most societies may, at least within certain limits, the same change might take place in regard to the church, and yet it would continue the same church. Whether a poll parish or religious society might be incorporated, without any local designation, or any provision, express or implied, giving it a local character, to consist of certain individuals named, and such associates as they might receive, and might at their election remove from one place to another within the Commonwealth, it is not now necessary to inquire. It is sufficient for the purposes of the present inquiry to say, that when a parish or religious society is, by its constitution, limited to any place, the church of such society, by whatever terms designated, is equally limited, being necessarily associated and indissolubly con nected with such religious society, and incapable of subsisting independently of it.

But it is insisted that churches, to some extent and for some purposes at least, sustain a corporate character ; that as corporations, they have perpetual succession, and therefore that they can subsist and act without dependence on, or connexion with, any religious society, or other body whatever. It may be proper briefly to consider the soundness of this position, and the correctness of the conclusion drawn from it.

Using the term corporation ” in a loose sense, and without technical exactness, it may be true that these bodies, to some extent and for some purposes, have a corporate character. The same may be said of all the various associations and voluntary societies formed in the community, for any charitable, useful or innocent object. They are known and designated by a collective name, may hold meetings, elect officers, pass votes, raise money by voluntary assessment, and direct its disbursement. The individuals composing it, may bind themselves, by mutual engagement, to the performance of particular duties and obligations, which are valid in law. They may therefore be said to perform some of the functions, and possess some of the characteristics of corporations. But to be of any avail in the argument, it must be shown that churches are corporations, or possess corporate powers, known to the law, at least to the extent of enabling them to have an independent existence and perpetual succession, and to hold and exercise some control over property. And to this extent the proposition goes in the argument, in this case.

It is a principle of law, which has been often acted upon, that where rights, privileges and powers are granted by law to a body of persons, by a collective name, and there is no mode by which such rights can be enjoyed, or powers exercised, without acting in a corporate capacity, such bodies are deemed by necessary implication, to be so far corporations, as to enable them to enjoy and exercise the rights and powers thus granted. So when a duty or obligation is imposed ; for where the law gives a remedy against an aggregate body, it gives a right of action, and to that extent constitutes them a corporation by implication. In Russell v. The Men of Devon, 2 T. R. 672, this principle was recognized by Lord Kenyon, and applied to the case of an action against the hundred, on the statute of hue and cry. But to found this argument, it must appear that the rights and powers conferred, can only be enjoyed by the exercise of corporate powers, and therefore if such powers are not necessary, they are not given by implication.

The power given to churches, by some of the colonial and provincial laws, to act and vote in the choice of a minister, either exclusively or concurrently with the society, required, whilst it existed, nothing more than that there should be a church in each religious society, duly organized, and perpetuated ; besides, this power has been expressly abrogated by the constitution. The importance given to church membership, by making it a necessary legal qualification for civil and political office, conferred no power on the church, to be exercised in its aggregate capacity. The power of electing members, with a view to a perpetual succession, of choosing deacons, committees and other officers, of maintaining ecclesiastical discipline and celebrating Christian ordinances, does not confer corporate powers by legal implication, within the principles stated, if those privileges can be fully enjoyed and exercised without the exertion of such corporate powers.

It is conceded that in early times neither legislation nor jurisprudence were exact upon this, or any other subject. Churches were respected for their piety and utility, their rights were recognized and acquiesced in by general consent, without being defined or secured by law. But when they became numerous, and the property incident to their beneficial operation, considerable, an express legal provision was made, by the act of 1754, enacting, that the deacons, for the time being, should be a body corporate, with power to take and hold property, for the use of the church, and to transmit it to their successors for the like purpose ; which law has ever since been in force. No implied corporate powers therefore are necessary to enable the church to hold property, because by this statute, express provision is made for the taking, holding and transmission of property, in which the church is beneficially interested. The statute provides, that all property given to the church, shall vest in the deacons and their successors as a corporation, and the maxim applies, expressio unius exclusio est alterius. As two persons or corporations cannot legally hold the same property at the same time, the law which provides that it shall vest in one, by necessary implication declares that it cannot vest in the other. The statute was professedly made for the better recovering of grants and donations to pious and charitable uses, for the better support and maintenance of ministers, and defraying charges relating to public worship. Two objects were to be accomplished by the statute ; one, to give all such grants a legal effect and operation, by enabling the grantees to take and hold real and personal property ; the other, that such property should go in succession. But both of these objects would have been as effectually accomplished without the statute, had the churches been deemed corporations, or qua corporations, with power to take and hold property to them and their successors, and so the statute would have been unnecessary and nugatory. This is a legislative exposition of the law, and the implication from it is inevitable, that tip to 1754 churches were not deemed corporations capable in law of taking and holding property ; and since that time they cannot be taken to have such corporate powers by implication, not only because such powers are not necessary to enable them to enjoy all their rights, but because the statute, by vesting all property given to them in another body for their use, has effectually rendered them legally incapable of either taking or hold"ng property. This statute, therefore, which was passed about he middle of the last century, and which was revised and substantially reenacted soon after the adoption of the constitution, and which is of the highest authority upon this subject, so far from proving that churches are corporations empowered to hold property, appears to us to prove the contrary.

If then the question is asked, how, if churches are not corporations, can they preserve their own perpetual succession, and elect deacons, who shall constitute a corporation, with perpetual succession, and invested with acknowledged, legal, corporate powers, it appears to us, that it is not of difficult solution. If a church is rightly described as an association of all, or part of the members of a religious society, and united for the celebration of Christian ordinances, it is necessarily incident to, and inseparably connected with such parish or religious society, which is a corporation with perpetual succession, and the perpetual existence and identity of the church is ascertained and identified by such corporation. Even should every member of an existing church die or remove, it would be competent for other members of the parish or religious society to associate themselves for the purpose of celebrating the Christian ordinances, or, in the language of the early days of New England, to gather a church, and such associated body would possess all the powers and privileges of the "church of such parish, and would be the legitimate successors of the former church, to the same extent as if no suspension or interruption in the regular succession and continuity of the body had taken place. Such a body would have the power of electing deacons, and when elected, by force of the statute, all property, real and personal, which had been held by their predecessors, or given to the church, would vest in such deacons. The same consideration therefore applies to this, as to a former view of the subject, that corporate powers are not attributable to churches by implication from the supposed necessary existence of those powers, in order to maintain a perpetual succession of deacons, because by the corporate character and powers of the religious societies to which such churches are incident, the perpetual succession of deacons can be preserved.

The same consideration applies to the power of a church to choose a committee in certain cases, to sue. The corporate character of the religious society ascertains the church, the election of this body constitutes the committee, and the power to sue vests in the committee by force of the statute.

It appears to us, therefore, that all the considerations urged' in argument, fail to establish the position, that churches, in any legal sense, possess the character and powers of corporations. But were it otherwise, were it proved ever so clearly, that to some purposes churches are corporations, with power to bold property, it would tend very little to establish the conclusion, that therefore they may secede from the religious societies in which they are formed, and be capable of subsisting and acting, without dependence on or connexion with such societies. It is easy to imagine the case of an incorporated institution, with incidental and subordinate corporations depending upon and connected with it. Such is the case of an incorporated university. Different trustees, professors and other officers might be vested with corporate powers, for the management of particular professorships, charities and schools, connected with such university. Could they, because possessing corporate „ powers, remove these charities, schools and professorships to another university, or conduct them as independent establishments ? So in a city, the overseers of the poor, the aider-men, the fire department, and the school committee, for the time being, may severally be incorporated, for particular purposes, but incident to, and subordinate to the incorporation of the city. Ceasing to hold these offices, and to be connected with that corporation, they would cease to be corporations, and could not subsist and act independently.

But it is impossible to imagine a case more strongly illustrative of this point, than one arising immediately out of the subject before us, and already referred to. Deacons of churches, by statute, are made corporations, with all the legal powers and qualifications of corporations, capable of taking and holding property, in succession, and of suing and being sued. Both the parties in this suit are such corporations, suing and defending in that character, and without it would have no standing in court. But can it be imagined that deacons could separate themselves from the churches by which they are chosen, and, as corporations, subsist and act independently of them ? How then could it be concluded, if churches were corporations, that in consequence of holding that character they could subsist and act independently of the parishes and religious societies in which they are formed ?

It is quite probable that some confusion may have arisen on this subject, from not sufficiently considering the precise distinction between a church.and a religious society. The latter, being qualified to provide for the support of public worship, and the maintenance of religious teachers, is invested with all vhe powers pf an independent body politic, which are necessary and proper to enable them to accomplish those objects ; whilst a church has no power and no occasion to provide for those objects, or to make any contract in relation to them. If, then, it is asked whether, if a church be dissatisfied with the doctrines taught, and the instructions given, in the parish in which it is formed, they cannot withdraw, the answer appears to us to be obvious ; that the organization of a church in any parish is designed for the edification and benefit of those members who choose to unite in it, and if those members, be they few, many or all, can no longer conscientiously attend there, they may unquestionably withdraw and provide for the' institution of public worship elsewhere. But this they necessarily do in another and distinct capacity,—that of a religious society. They may also form a church, but it will be the church of the society thus established, and not the church of the society from which they have withdrawn. Otherwise, the anomaly would be presented, of a society competent to settle a minister, and to support public worship, and yet incapable of having a church, or celebrating the Christian ordinances ; for it is impossible that there should be two distinct bodies, having no communication with each other, organized under different officers, and keeping distinct records, which should each be the same church, at the same time. This would be contrary to the usage, practice and general understanding of the Commonwealth, from the earliest times, and equally contrary to the spirit and purport of the statute ( St. 1799, c. 87,) which provides, “ that the respective churches, connected and associated in public worship with the several towns, parishes, precincts, districts and other bodies politic, being religious societies established according to law, within this Commonwealth, shall at all times have, use, exercise and enjoy all their accustomed privileges' and liberties, respecting divine worship, church order and discipline, not repugnant to the constitution of this Commonwealth, and shall be encouraged in the peaceable and regular enjoyment and practice thereof.” This statute implies the understanding of the legislature, not only that churches are bodies connected and associated with parishes and other religious corporations, but also that each of those religious societies, established according to law, shall be capable of having churches so connected and associated with them, who can at all times use and enjoy the liberties and privileges therein assured to them.

It would be equally anomalous to suppose that a religious society, established according to law, and not only capable, but bound by the constitution and laws to provide for the institution of public worship, and the support and maintenance of teachers of piety, religion and morality, should be made to depend for their decent and orderly action, upon a body who had wholly withdrawn from them and instituted public worship in another place, perhaps a distant town or State, who had not only ceased to be members, but who had formally furnished the society with legal evidence of their having so done, and who by these acts had shown, that even if they bad no adverse pr hostile interests, they had no longer any interests in common with such society, upon these subjects.

Upon a review of the subject, the Court are all of opinion, as it was substantially decided in Baker v. Fales, so far as that case involved the same point, that in whatever aspect a church, for some purposes, may be considered, it appears to be clear, from tue constitution and laws of the land and from judicial decisions, that the body of communicants gathered into church order, according to established usage, in any town, precinct, or religious society, established according to law, and actually connected and associated therewith for religious purposes, for the time being, is to be regarded as the church of such society, as to all questions of property depending upon that relation.

It remains only to apply these principles to the case under consideration. It appears that at the time Mr. Stone consented to the dissolution of his connexion with the parish, he reserved the right to retain his relation as pastor of the church in that society, to which reservation the parish and the church, as far as they respectively might, assentéd. It may be admitted, without affecting this inquiry, that individuals may bind themselves by express engagements with each other, for spiritual aid and mutual edification, and that some obligations, binding in conscience, may arise therefrom. But considering a church, gathered in a religious society, in the sense in which it is used, and in which alone it can be used, in this relation, it seems to follow conclusively, from the principles already stated, that when a minister ceases to be the teacher of piety, religion and morality in such society, he ceases to be the pastor of such church. It appears to us, therefore, that the reservation in question, as to its effect upon the condition of the church, was wholly nugatory and void, and did not alter the relation of church and congregation. But were it otherwise, the consequence only would be, that Mr. Stone retained the relation of pastor to the church, as it had withdrawn and separated itself from the parish of the third precinct, and as it afterwards connected itself with the Evangelical Society. If the relation of pastor and church continued to any purpose, it was with this church, and if, for the reasons before given, this body ceased to be the church of the third precinct, the continuance of such relation or not, could have no effect upon the present question.

It appears from the facts in the case, that the defendant and those whom he represents, long before the commencement of this action, had withdrawn from all the meetings of the parish, either for business or worship, that they had formed a new society under a collective name, the Evangelical Society, had applied to a magistrate to call a meeting, and thereby, and by force of the statutes of 1811 and 1823, had become incorporated as a distinct religious society, and had filed certificates with the clerk of the third precinct, and thereby wholly ceased to be members thereof; that as a church, they had voted, as far as they were capable of doing so, in that capacity, to unite with the Evangelical Society, and thus, if a church at all, had become a separate and distinct church from that of the third precinct. It further appears, that the body représented by the plaintiff is composed in part of those who were, before am division, members of the church of that parish, with others regularly chosen by them, that they are associated for the celebration of Christian ordinances, in usual church form and order, that they have been recognized as a regular church by an ecclesiastical council, and joined in the call and settlement of a minister in that parish, and therefore possess all the requisites and characteristics of the church of that parish. The plaintiff having been duly elected deacon of this church, is entitled by force of the statute to take and hold all the property, in which it is beneficially interested, including the furniture in question, and therefore is entitled to judgment in this action. 
      
       See Sawyer v. Baldwin, 11 Pick. 492; Revised Stat. c. 20, § 3.
     