Muzzy v. Wilkins

¶1The following is the opinion of

¶2By these pleadings, as it respects the second count, in which the plaintiff sets up a claim to exemption from the Rev. Mr. Barnard’s salary for 1795, it is admitted that the plaintiff was and is a Presbyterian; and the only question referred to the decision of the court is whether Presbyterians are, within the meaning of our Constitution, of another or different persuasion, sect, or denomination, from Congregationalists. If they are, the plaintiff is entitled to recover upon this count. If not, he was rightfully taxed, the replication is sufficient, and the defendants must have judgment. The question is important, inasmuch as there is involved in it the construction of a great and fundamental article of the Constitution, an article in which every individual is concerned, and which has at all times, when drawn into discussion, excited a great degree of interest and zeal. It is of importance that we should decide aright, and that the grounds of our judgment should be clearly and certainly known, as a rule to be followed hereafter in all cases of the like nature. The best, if not the only, way to arrive at the true sense of any particular clause in the Con*4stitution, is to examine all the parts of that instrument which relate to the same subject, compare them together, and then put that sense upon it which, on a fair consideration of the whole, we collect the framers intended it should bear. This is the more necessary, as it is apprehended that very erroneous opinions have been entertained on the clause of the Constitution which relates to religion and the right of conscience.

¶3I. By the fourth, fifth, and sixth articles of the Bill of Rights it is declared “ that the rights of conscience are founded in nature and are unalienable ; that every individual has a right to worship God according to the dictates of his own conscience and reason; and' that no one shall be hurt, molested, or restrained, in his person or his estate for thus worshipping his Maker, or for his religious profession, sentiments, or persuasion, provided he doth not disturb the public peace or disturb others in their religious worship ; 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.” (a)

¶4That society, or, which is the same thing, that the civil magistrate, should ever undertake to prescribe to men what they shall believe and what they shall not believe, is a thing so absurd that we should hardly believe it upon less evidence than that of experience. Opinions are not the proper objects of human authority. The mind of man was not intended by its wise Creator to be subjected to the control of finite and limited beings like itself. Freedom of thought is the prerogative of human kind (Eden, 91), (b) a quality inherent in the *5very nature of a thinking being, a privilege which ought never to be denied. And yet we find an English Parliament making it treason to bo willingly withdrawn or converted to the Popish religion. Eden, 144. (a) Equally, absurd was the Act of the same Prince which made it treason to believe that he was married to Anne of Cleves. Eden, 93. (b)

¶5The infallible Church of Rome condemned the Copernican System as a heresy, and the famous Galileo was imprisoned for believing and teaching it. He was obliged to recant and curse his former opinions, and swear that he would believe so no more. This was compelling him to promise what he could not perform, (c) Mere difference of opinion has been deemed an offence. The weaker body, though perhaps the stronger mind, was always the offender. It is still more unjust and absurd for government to extend its jurisdiction over the *6opinions of men in matters of religion, (a) Religion is that sense of Deity, that reverence for the Creator, which is implanted in the minds of rational beings. It is seated in the heart, and is conversant with the inward principles and temper of the mind. It must be the result of personal conviction. It is neither to be produced by fines and penalties, nor can it be extirpated by them. It is a concern between every man and his Maker. The laws which regulate faith come immediately from the author of the human soul. They are not like human laws to-day, commanding us to believe what to-morrow we are roasted alive for believing. They are always the same, and will remain the same when the laws and constitutions of men shall have only an historical existence or be utterly forgotten.

¶6No human government has a right to set up a standard of belief, because it is itself fallible. (b) It has not pleased God to enlighten by his grace any government with the gift of understanding the Scriptures. Uniformity of opinion in matters of faith is not practicable, and, if it were, is not desirable, (c) All the means that have been used for the purpose at all times and in all places have multiplied, instead of diminishing, *7sects and opinions. In the English statute book we find an act for abolishing diversity of opinion in certain articles of the Christian religion, (a) The preamble recites that great advantages result from unity of sentiment, and that many evils flow from diversity of opinion, in religious matters, that the King had summoned Parliament and the Convocation for the express purpose of putting an end to this diversity; that among other questions he had submitted this to these two venerable assemblies, “ Whether, after consecration in the sacrament of the Eucharist, the substance of the bread and wine remains, or no ? ” that his Majesty had commanded this question to be discussed, and, what is more, to be understood ; and, to accomplish so desirable an object, had himself mingled in the debate, and given a specimen of his princely knowledge. The result of this assemblage of talents, wisdom, and piety is stated in the enacting clause: “ Therefore it was resolved, agreed, and enacted, by authority of Parliament, that, in the sacrament, by the strength and efficacy of the word of Christ spoken by the priest, the natural body and blood of Christ, conceived of the Virgin Mary under the form of bread and wine, is really present, and of course the bread and wine no longer remain.”

¶7In truth, this question was no better understood after this act passed than before. Things remained exactly as before, unless it was that the opinions of men became still more diverse, from tins absurd attempt to unite them, (b)Persecu*8tion on account of religious opinions is no less opposed to sound policy, to the sentiments of nature and humanity, than it is to the mild precepts of the Gospel of Peace.

¶8A celebrated Englishman of the present day (a) observes that it is his ardent wish to extirpate heresy by fire, —not, indeed, in the old mode of burning heretics, but by burning all the statutes which declared the offence of heresy and thus formed ■the code of persecution. This is precisely the course taken by our Constitution. It cuts up persecution by the roots. It secures to every man the free enjoyment of his opinions on religious subjects. It prescribes no articles of faith. It forbids the legislature to prescribe any. It leaves every man free to examine and judge for himself. Let it not be imagined that this provision was unnecessary and useless. (b) Mankind have always been disposed to persecute their fellow men. (c) But, as long as this charter of our liberties remains inviolate, there can be no persecution in this State on account of religion. Every man may worship God according to the dictates of his own conscience and reason; and even those who deny their Maker this “ most reasonable service,” who refuse to worship him, or who entertain erroneous opinions of him, his attributes, and his religion, are referred for trial and punishment to him whose judgment cannot err, and who will surely render to every man the just reward of his own doings, (d)

¶9*9II. But our Constitution goes further. It wholly detaches religion, as such, from the civil State. By the mixture of civil and spiritual powers, both become polluted. 8 Warb. Semi. 300, 801. The civil uses religion for an engine of State to support tyranny, and the spiritual becomes invested with the sword of the civil magistrate to persecute. Under our Constitution there is no such union, no such mixture. No one sect is invested with any political power, much less with a monopoly of civil privileges and civil offices. The particular sect, or denomination, to which a citizen belongs neither promotes nor hinders his political advancement. It is his character, not his opinions; his works, not his faith, — that is to be regarded. All denominations are equally under the protection of the law, are equally the objects of its favor and regard. No one denomination is subordinate, that is inferior in degree, to another, for all are equal. Nothing could be better calculated to promote the peace and tranquillity of society than this excellent provision. It is admirably calculated to prevent religious hate; to assuage the bitterness of religious contests, which (when religion is connected with the State) are the *10bitterest of all contests. It holds forth no motive to incite each man to divine the opinions of his neighbor, and to deduce mischievous consequences from them. It furnishes no motives to hypocrisy, nothing to gratify the passions of avarice and ambition. On the contrary, the collision of opinions in open and liberal discussion among men living under the same government, which it permits and cherishes, cannot fail to produce the most happy effects in the promotion of knowledge, candor, and charity. In a word, our Constitution regards men as they are regarded by the great Governor of the world, who bestows the blessings of his providence on all the children of men, however diversified by modes of faith, and however divided into sects and denominations, (a)

¶10III. Under the two preceding heads we have seen that the Constitution secures the citizens of this State against persecution on account of their religious faith and worship. It declares that all men are equal in the sight of the law, are equally eligible to honors, places, and employments, without any other distinction than that created by their talents and virtues. (b) Religious opinions form no ground of distinction. But we are not from hence to infer that the civil magistrate may not lawfully punish certain offences against the unalterable and essential principles of natural and revealed religion, for these principles are said to make a part of the common law. Of this description are the offences of blasphemy, (c) reviling religion, profanation of the Sabbath, &c. Nor are we *11to infer that religion is a thing of no consequence to society. The reverse is the case. (a) Religion, in the strict sense of the word, is a personal concern. It is a matter between God and every one of his rational creatures. Yet religious principles have the most unbounded and the most salutary influence on the affairs of men united in society. It is declared in our Constitution that morality and piety rightly grounded on evangelical principles, that is, on the principles of the Gospel, will give the best and greatest security to government, and will lay in the hearts of men the strongest obligations to due subjection, or, in other words, will make the best citizens and subjects; that the knowledge of these is most likely to be propagated through society by the institution of the public worship of the Deity, and by public instruction in morality and religion. It is then declared that, to promote these important purposes, the legislature may empower the several towns, corporate bodies, and religious societies in the State, to make adequate provision for the support and maintenance of public teachers of piety, religion, and morality; to be elected by the majority of the corporation. The legislature have done as they were required, and have given to towns and parishes the authority they were thus enabled to give.1

¶11*12The principles upon which.towns and parishes, in their corporate capacity, are enabled to support and maintain public instruction in religion and morality, which have just been detailed, are not the more true and solid for being recognized in our Constitution; but their being found there justly authorizes those whose duty it is to interpret that instrument to weigh and consider them in judging of the extent, the limitation, and the restrictions of the power conferred; and, taking those principles into consideration, we are bound to suppose that a power so beneficial and salutary in its consequences, so necessary to the well-being, if not to the very existence, of a free government, was not intended to be rendered wholly nugatory by any thing contained in other parts of the same instrument. We are bound to give that construction to the various clauses which will give effect and meaning to every part. We are to collect the meaning from the whole instrument, not from disjointed parts. Under these impressions, and with these rules of construction for our guide, let us examine that clause of the sixth article of the Bill of Rights which the plaintiff relies upon in support of his claim to exemption. It is this : “ No person of any particular religious sect or denomination shall ever be compelled to pay towards the support of the teacher or teachers of another persuasion, sect, or denomination.”

¶12And here it may be useful to observe that, if this clause had been omitted altogether, there would have been neither any violation of the rights of conscience, nor any proper religious establishment in the State, (a)

¶13A religious establishment (b) is where the State prescribes *13a formulary of faith and worship for the rule and government of all the subjects. 5 Senator, 742. Here the State do neither. It is left to each town and parish, not to prescribe rules of faith or doctrine for the members of the corporation, but barely to elect a teacher of religion and morality for the society, who is to be maintained at the expense of the whole. The privilege is extended to all denominations. There is no one in this respect superior or inferior to another. The minority of each corporation can neither be molested on account of their religious opinions, nor subjected to any civil disabilities.

¶14The Constitution, viewing religion in some form or other as useful if not indispensably necessary to make good subjects; not being able to decide between contending sects as to which is most agreeable to the Word of God, the infallible standard, but viewing them all as equally good for the purposes of civil society, because they all inculcate the principles of benevolence, philanthropy, and the moral virtues (Blackst. Appendix, Furneaux Lett. 94) ; (a) considering, too, that public instruction in the genera] principles of religion and morality can only be maintained by enabling corporate bodies to support and maintain it, — under these impressions and with these views, confers the powers in question.

¶15Independent of the exempting clause, it is true an individual member of the corporation would sometimes be compelled to pay towards the support of a teacher of a different denomination from his own, but still the conscience would be left free.1 He need not believe as the teacher or the majority believe. He need not worship as they worship. He may believe and worship in his own way, or not believe and not worship, just as he pleases. His conscience is free, his civil rights unimpaired. It is his misfortune that, in electing a teacher of religion and morality, he happens to be in the *14minority.1 His situation, in this respect, is precisely the same as it is in other civil concerns of the State. The minority are compelled to pay for instruction in learning, though they may be of opinion that the schoolmaster chosen by the majority neither promotes learning nor good manners, but the contrary. So the minority are compelled to pay towards the support of a governor, judges, &e., because the majority think these men advance the happiness and promote the good of society, though the minority may think they corrupt and injure the community. 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. The corporation choose them and maintain them because they believe their instructions will promote the good of society. Public instruction in religion and morality, within the meaning of our Constitution and laws, is to ever}' purpose a civil, not a spiritual, institution. The relation that subsists between a minister and the town is civil; that which subsists between a minister and the church is spiritual. Hence, the former is regarded in our laws, and the latter is not. Society has a right to judge what will promote the good of society, and to provide for it at the expense of the whole, (a) The minority must submit to the judgment of the majority. No civil regulation can be made or adopted which does not militate with the opinions and the wishes of individuals. Some there are who profess to believe that learning is no way useful to the State. They are permitted to enjoy their opinions; but they are not on that account excused from paying. There are persons who profess to believe that war of every kind is unlawful; “ they are conscientiously scrupulous about the lawfulness of bearing arms.” Thirteenth *15article N. H. Constitution ; 1 Gibb. 492, 493. And this is the scruple of a respectable religious sect. They are indulged in their scruples, but they must pay an equivalent, they must pay those who do fight, (a) An individual may in his conscience believe that his nation wages an unjust war, but as long as he continues a member of the State, he must contribute his quota towards carrying it on.

¶16In short, on this subject of conscience, there is no mistake more common than for men to mistake their wills and their purses for their consciences. (b) Whatever other objections, therefore, may lie against the plan of authorizing towns to elect and support public teachers of religion and morality at the expense of every member, it is clear that it would be no infringement of the rights of conscience, (c) The question *16before the Court, therefore, does not involve in it a matter of conscience. It is a mere question of the extent of a civil obligation and a civil duty; that is, how far a corporate body can compel its members to support the public teacher chosen by the corporation pursuant to the Constitution.

¶17IY. It is admitted that the plaintiff is a Presbyterian, and that a majority of the persons composing the First Parish in Amherst, and their teacher, are Congregationalists. Are these different sects, or are they one and the same ? What is the criterion by which we may be enabled to decide the question ? Is it a difference in faith, in doctrinal points ; or is it a difference in the form of church government, discipline, and worship, which constitutes different sects and distinguishes one set of Christians from another ?

¶18Most, if not all, the religious sects have their confessions of faith and their platform or directory of church government, discipline, and worship. We find that many sects agree in the main as to matters of faith, but differ in their platforms of government and discipline.

¶19. The Episcopalian, Presbyterian and Congregational Churches agree in articles of faith, and differ in government, discipline, and worship. Warb. Sermons, 207. (a)Presbyterians, Independents, Baptists, in England, all subscribe doctrinal articles of the Episcopal Church. 4 Blackstone, 53. (b) They are still nonconformists, Mass. Hist. Coll. IX. 42, n.; that is *17they refuse to conform to the peculiar rites, ceremonies, discipline, government, and externals of religion as practised in the Episcopal Church, because they profess to believe them unscriptural. But, notwithstanding this agreement between the different sects as sects, bodies of men, or distinct societies, yet the individual members of each of these sects differ widely in faith and doctrine, (a)

¶20In the Episcopal Church there are Calvinists, Arminians, Universalists, &c. The same may be said of the Presbyterian and Congregational Churches. If we say that articles of faith are what only distinguishes sects, then Episcopalians, Presbyterians, and Congregationalists are of the same sect. If we say that doctrinal points enter into the discrimmation at all, then individuals among Presbyterians, Congregationalists, and Episcopalians are of the same sect, for they are Calvinists, Arminians, Universalists, &c. ; and individuals in the Episcopal Church are of different sects, for some are Calvinists, some Arminians, some Universalists, &c. But according to the common and usual acceptation of the term sects, (b) matters of faith are not considered. The Episcopalians are a sect; the Presbyterians are a sect, &e. The individual members do not agree in doctrine, and among Episcopalians there are not many sects, though there is much diversity of opinion in articles of faith, and perhaps no two Episcopalians understand the Thirty-nine Articles precisely in the same sense ; yet they are all of one denomination.

¶21*18If, therefore, we allow doctrinal articles to enter into the definition of sect, the term becomes immediately indefinite and uncertain in its meaning; and, wbat is more to our purpose, affixing this sense to the term will render altogether nugatory that clause in the Constitution which enables corporate bodies to support and maintain public instruction in religion and morality. To illustrate this idea, let us suppose a whole town or parish to be composed of Episcopalians. They elect an Episcopalian teacher. An individual refuses to pay, because the majority or the parson is a Calvinist, and he an Arminian. How is this matter to be tried ? Who shall determine as to the creed of the parson or the person claiming exemption ? We must take the parties’ word for it; we cannot have better evidence. Then the corporation may make a contract as a corporate body, and yet every individual upon his own declaration merely may be loosed from the bond. What is this but saying that the corporation may coerce all who choose to be coerced ; may force the willing, but not the unwilling ; or, in other words, the corporation shall not exercise any of the powers of a corporate body.

¶22This absurdity is not attached to the other opinion, namely, that a difference in government, discipline, and worship alone constitutes the difference of sects and denominations, (a)If an individual claims exemption on the ground that he is a Baptist, &c., the truth or falsehood of his plea may be examined and tried by a jury. Though God alone is the absolute judge of a man’s faith and of his conscience, yet the world can judge as to what'sect he belongs.1 Circumstances will serve to evince whether he is what he professes to be or not, *19whether he is sincere in his declarations that he belongs to this or that sect. Is he consistent throughout ? do his actions correspond with his declarations ? All these things may be and must be manifested by overt acts. It is a just and excellent maxim, which will hold good in this as in all other cases, “ By their fruits ye shall know them.” If he is really and truly a Baptist, as he professes to be, it will appear. He will attend their meetings, not now and then, but frequently, constantly. He will join with them in divine worship in their way, not occasionally, but statedly. He will conform to their rites and ceremonies, submit himself to their government and discipline. Is his profession assumed merely that it may serve as a cloak to screen him from paying taxes in the society to which he belongs ? His actions will demonstrate. If his actions show this, he is a pretended, not a real, Baptist; and his profession shall not avail him. So if he has joined different sects at different times, and especially if he has done so from improper views, (a) So if he appear to be an atheist, deist, a reviler and contemner of religion, or a person of no religion. (b) All these things are capable of proof. But how shall it be proved what is the doctrinal belief of a parish, or even of a parish priest, or any individual member ? 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. Most people, I presume, have opinions in matters of religion; but there are few who can tell what they are, and fewer still who can compare them with the opinion of others and mark their agreement and their disagreement. It would require a very nice compass and a skilful theological surveyor to run the divisional line between Calvinists and *20Hopkinsians. What allowance shall he make for the variation of the needle? We have new and old Calvinists, rigid' and liberal Hopkinsians, new and old divinity, (a)

¶23Disagreement in opinion as to the doctrines maintained by sects may have many times occasioned new sects to spring np. But every difference of opinion has not • proceeded to this length; and even where it has occasioned a separation, the dissenters generally, if not always, differ more in government, discipline, and worship, that is, in the externals, than in articles of faith. It is wholly immaterial to our present purpose whether doctrine, or government and discipline, is of the greater or less importance. The former does not, and the latter do, admit of being known and established by evidence. At the same time, it may be proper to remark that mankind have at all times more obstinately adhered to the ceremonies of religion than to the doctrinal parts. The externals of religion have always made a greater impression on the multitude than the internals. (b)

¶24We may then safely conclude that by sects spoken of in the Constitution we are to understand a body of Christians cut off or separated from the rest, — for this is the strict meaning of the word (3 Senator, 585), (c) —who live apart and by themselves, having a form of church government, discipline, and worship different from others, and especially from those from whom they separated, and who thus, forming a distinct sect, section, or society, acquire a name or denomination.

¶25In ascertaining the sense and meaning of laws and constitutions, little confidence, perhaps, is to be placed in the strict meaning of words, or on arguments deduced from nice and critical construction. If it would not be thought refining too much in this way, I would observe that each of the words *21used in the paragraph under consideration has a particular and appropriate meaning, and that altogether they bear the sense I have put upon them. Persuasion refers to the opinion, conviction, or belief which occasions the separation. Sect means the party persuaded, or who, entertaining opinions different from the rest, are cut off or separated from the main body. Denomination is the next step in the process. It signifies the name the sect acquires when actually separated, and which is generally descriptive of the principal points in difference, (a) Thus Episcopacy is the government of the church by bishops, in opposition to Presbyterianism, or the government of tlie church by presbyteries or presbyters. Independents are so called from their maintaining, in opposition to botli the other sects, tliat each congregation is a complete church, and is in no respect subject to the control of others. The same observations may be made respecting Baptists, Quakers, &c. Where the difference is respecting • matters of faith, the founder of the particular opinions generally gives his name to the disciples of that faith, as Calvinists, Lutherans, Arminians, Allans, Socinians, &c. It is true, as lias been observed, that the word persuasion is oftentimes used with reference to sentiments or belief in doctrines. It is so used in Article V. But it is also used as synonymous with the words sect and denomination. (b) In this place it cannot alter tlie sense. In another part of this Article the same idea is conveyed by the word denomination alone. So sect and denomination are in this very paragraph used as equivalent to the three words, persuasion, sect, and denomination. This construction gives us solid ground to stand upon. Persuasion, sect, or denomination comprehend Episcopalians, Baptists, Congrogationalists, Quakers, &c. Among these the discrim*22inating features are well marked, — it is true, with lines of different degrees of distinctness and boldness, but still, with respect to all, marked and known. There are known bounds and limits to sects and denominations. But, if matters of doctrine discriminate, how far shall it be carried, where shall we stop ? There are a great? number of divisions which have acquired a name of distinction, but the real divisions are still more numerous. No two persons precisely agree together, and the same man at different times differs from himself, (a)

¶26V. Our next inquiry is, Do Presbyterians differ from Congregationalists in discipline, church government, and worship, in the external forms; are they a separate and distinct society; do they usually associate and worship by themselves ? (b) If we apply these tests to deists (for as to atheists, it is not proper to consider them as a religious sect), Calvinists, Arminians, Hopkinsians, Universalists, &c., it will appear that these are not distinct sects: they are found blended with all sects. Among Episcopalians there are Calvinists and Arminians; there are also many Universalists. Some of the dignitaries of the Church have embraced the Universal scheme; Bishop Newton was a Universalist. Among the Congregationalists and Independents we may mention Dr. Priestley, Dr. Chauncey, Dr. Huntingdon, &c. Generally speaking, the Universalists have no distinct formulary of government and discipline. In large towns they sometimes associate and worship together, (c)But embracing this tenet makes, in general, no more difference as to the *23form of church government and discipline than embracing the Calvinist, Arminian, Hopkinsian opinions does.

¶27Let us now apply these tests to Presbyterians and Congregation alists.

¶281. The Presbyterians have a distinct directory of church government and discipline set forth in the same volume with their Confession of Faith, but separate and distinct from it. (a) Just so the Congregationalists have their code, called the Platform of Church Discipline, agreed upon at Cambridge, 1648, and afterwards ratified in 1680. They have also their Confession of Faith, in substance agreeing with the Presbyterian and the Episcopal, and differing little from tbe Romish.

¶292. Presbyterians usually worship by tliemselves, and form a distinct society from the other sects. Let us look at their origin. (“Presbyterians,” “Independents,”Encyclopedia.) They are as old as the Reformation. With the Lutherans they separated from the Church of Rome, but they soon separated from each other. The Lutherans established the Episcopal form of church government. The disciples of Calvin established the Presbyterian, and it has existed ever since on the continent. It was afterwards established in Scotland, and carried by the Scotch, who immigrated in great numbers to Ireland, and planted there. It was brought both from Scotland and Ireland to this country, and churches have been formed here on the model of the Church of Scotland, and professing to be governed by the same directory. Presbyterians, as Bishop Warburton justly observes, did not spring from fanaticism, as many wild sects have done. (b)

¶30The Independents are a sect of modern date, (c) The hierarchy established by Queen Elizabeth, the vestments (d)worn by the clergy in the celebration of divine worship, the *24Book of Common Prayer, (a)the sign of the cross used in baptism, &c., were considered by many persons as too nearly resembling Popery; and a purer worship and more perfect reformation were demanded. These persons were called Puritans. (b) They divided from the Church, or rather the Church cast them out. Brown (c) first, and Robinson after-wards, moulded a certain portion of this mass into the sect now known in England by the name of Independents. From thence sprung Congregationalists in this country, (d) Both *25in the Old World and in this, Presbyterians, Independents, or Congregationalists form distinct religious societies or churches.

¶31The same learned prelate I have already quoted, treating of the origin of the Independents, says they are 'the spawn of the persecuted Puritans. 3 Warb. Serin. 267, 272; 2 Rapin, 802. (a)

¶323. So much for the origin of the two sects ; but still it may be ashed, Do Presbyterians and Congregationalists differ from each other ? They think they differ, for they live apart from each other, and form distinct societies. Winthrop’s Journal, 308, 309. The Independents in England and the Congregationalists here have not yet adopted the Westminster Confession of Faith, and directory and form of Presbyterian church government and discipline. And the Established Church of Scotland have yet manifested no desire to exchange it for the New England Platform. (b) But Presbyterians and Independents have given higher, if not better, evidence of their being, at least in their own opinion, distinct sects; for they have persecuted each other even unto the death, with all the rancor of religious hate, when either could get the sword of the civil magistrate into their own hands. 2 Rapin, 546. (c)

¶334. It has been mentioned that Presbyterians and Congregationalists have distinct directories or platforms of church government and discipline. If we look into these, we shall find that they differ as much as other sects.

¶34(1.) As it respects different orders of men in the church, ordination, &c.

¶35The Presbyterians believe that there is a permanent order of ministers in the church; that the authority of those *26ministers to preach the gospel, to administer the sacraments, is derived from the Holy Ghost by the imposition of the hands of the presbytery ; that in all the externals of religion, the great body of Christians are bound to obey. In short, they agree with the Episcopalians, that there is a permanent order of ministers ; but they differ from Episcopalians in the number of orders and in the manner of their creation, — the Episcopalians maintaining that there are divers orders, bishops, presbyters, and deacons, and that the highest only has the power of ordination ; while the Presbyterians maintain that there is only one order, namely, presbyters. Both deny the validity of lay ordination.

¶36The Independents and Congregationalists (a) differ from both. They deny that there is any permanent order of ministers constituted by Christ or his Apostles; [they believe] that a man may become a minister without the sanction of any permanent order of men. They believe that the imposition of the hands of a bishop or presbytery conveys no spiritual powers or prerogatives; that a man may be constituted a pastor by election of the church and acceptance on his part; (b) these are every thing; “ ordination is nothing but the putting a man into his place and office, whereunto he had right before,” and may be performed by the brethren of the church, (c) They attribute no virtue *27whatever to the rite of ordination, upon which Presbyterians, as well as Episcopalians, lay so much stress.

¶37(2.) The Presbyterians maintain that ministers constituted in their mode, together with a certain number of laymen (chosen and ordained by them), form a judicature (1 Hubbard, 184, 189), and are clothed with certain powers in ecclesiastical matters, extending over all Presbyterians in the same kingdom or state. Such society or parish has its session; a number of parishes form a presbytery; a larger division a synod, — and the whole are united under a general assembly. Churches or societies are not independent of eacb other, but connected and dependent. These different judicatories have cognizance of all questions relative to tlie government and discipline of the cliurcb and congregation. They examine, admit, ordain, and censure ministers; they license probationers; censure gross and contumacious sinners ; direct the sentence of excommunication: resolve cases of conscience ; explain difficulties in doctrine or discipline. In these particulars consist the external order, strength, and steadfastness of the Presbyterian Church.

¶38*28Among Congregationalists (a) each church is independent, if it chooses to be so. Each chooses and expels its members and its officers, and the sentence is final. Mass. Hist. Coll. IV. 134, 135; Mass. Hist. Coll. IX. 12, &c., 15, &c. Winthrop’s Journal, 55, 56, and ante, 57 ; Colony Laws, 101. Among Presbyterians, if a member is expelled or excommunicated, he may be restored by a higher tribunal, and those who expelled him sentenced to take his place. The Episcopalians, in matters of faith, discipline, and government, acknowledge, as superior, the king, bishops, &c. The Presbyterians, in matters of government and discipline, acknowledge, as superior, synods and general assemblies. (b), Each Congregational church acknowledges no superior on earth (Winthrop’s Journal, 57), Colony Laws, 101. Congregationalists also differ from Presbyterians in the mode of admission into the church. They generally require written or oral declarations of faith and religious experiences. Mass. Hist. Coll. IX. 16, n. (c) Some Congregational churches also differ as to baptism, denying it to all but children of believers in full communion ; others require a sort of half communion.. To conclude what *291 have to say on church government, the Episcopalian Church is monarchical, the Presbyterian aristocratical, (a)and the Congregational democratical. (b)

¶39(8.) In worship there is little difference between the two sects. But still there is some. In the administration of the Lord’s Supper the Presbyterian mode is reckoned the most solemn. Many Presbyterians esteem the difference as matter of consequence, though perhaps few carry it so far as the present plaintiff. He thinks it important that the bread should have no leaven in it. Even this seems to be of as much consequence as one of the stumbling-blocks to the Puritans, and which was one of the causes that led to the separation from the Episcopal Church, —- the matter of the altar, and the garments worn by the priests on these occasions.

¶405. From this very brief view of the two sects, I think myself warranted in saying that Presbyterians and Congregationalists differ from each other as much at least as Baptists do from either, (c)

¶41*30They were distinct sects and formed separate religious societies at the time our Constitution was made. And I am confident if it had then been understood that they were not to be so considered, no Presbyterian would have assented to that instrument. The Constitution, in using the words persuasion, sect, or denomination, no doubt had reference to the sects at that time in being. Episcopalians, Baptists, Quakers, were, at that time exempt. I do not know that the question at that time had arisen respecting Presbyterians. (a) Perhaps it would be going too far to say that these words shall not be construed to extend to sects that may spring up in future. When they arise and become distinctly marked, they will doubtless be entitled to claim the privilege of exemption.

¶42From the construction now given to the Constitution, I apprehend that it will follow that towns and parishes are authorized to tax atheists, deists, revilérs and contemners of religion, and persons of no religion at all, and who consequently belong to no particular denomination of Christians. It is only persons of a religious sect that are under any circumstances exempt from taxation in the corporate body to which they belong. And in this case the public are supposed to suffer no loss from the exemption, because such persons maintain religious instruction according to their own persuasion; but' this will not apply to those who have no religion. (b)

¶43VI. It has been said that Presbyterians and Congregationalists agree in many things; that they differ only in *31trifling matters; and that they often unite in worship and communion, (a)

¶44It is true they agree in many things. So do all sects. It is sufficient that they differ in such matters as are deemed by themselves essential. It is sufficient that many serious Christians of both these denominations cannot overcome their scruples; cannot give up their preference for the order, discipline, worship, and government of the church, which prevails in their own sect, and constitutes its difference from all others.

¶45Dissenters in England (b) are allowed to say that they cannot in conscience join the Established Church; that they cannot take the sacrament according to her rites and ceremonies. The substance of the thing is the same among all Protestants. Our Constitution allows all sects to say the same of each other. Where the denomination is different, and they do not in fact unite, they shall not be compelled to pay. Each sect has a right to prefer its own form, and each individual of the sect to appropriate his money to the support of public instruction in religion and morality in his own society. It must not be permitted to the prevailing sect to say, “ Those who differ from us do it upon matters of indifference, or for no reasons.” The majority have no *32right to judge in this matter. It is no matter.whether the points in difference between sects be great or small, as long as the parties concerned think them of sufficient consequence to induce a separation, (a)All the Protestant churches set out together, but they parted on the road. They fell out by the way. And yet, if we coolly and impartially examine the points on which they differed and separated, they will be found few in number and trifling in amount.

¶46It is true Presbyterians and Congregationalists (b) have been for some time approximating towards each other, but they have not yet formally united. Both sects have increased in Catholicism, all sects are approximating, the shades of difference have, been for some time gradually wearing away, and a more liberal way of thinking generally prevails, (c) There have been times .when toleration was reckoned among the number of the deadly or mortal sins. (d)He who be*33lieved. 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. 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. If this system of ours is suffered to remain for any length of time, I should hope that discordant sects may in time be brought to assimilate, and then to unite, (a)

¶47Our Constitution has a tendency to produce these effects, as far as human means can accomplish it. Force, however gentle, has no tendency to unite. (b) It will produce a contrary effect. It is of the nature of the human mind to revolt at compulsion. Men have in all ages suffered martyrdom for what appear to be the merest trifles. It is the usual effect of persecution (and though the present question does not involve the rights of conscience, yet many suppose they are involved), it is the usual effect of what is deemed persecution, and every species of oppression, to harden and contract the will, (c) to inflate and inflame the imagination, *34to magnify trifles into matters of importance. Zeal becomes ardent, then rancorous. When the current of zeal and devotion is contracted into a narrow channel, it runs with the strength, and sometimes with the fury, of a torrent. It provokes persecution, and the furious zealot expires in the flame his own zeal has kindled. But from the ashes of every martyr, — whether a victim to the truth or to error, whether to great or to 'Small things, —spring up a thousand ready to encounter the pains for the crown of martyrdom. Policy, therefore (though, as a judge, I disclaim being influenced by it), policy dictates that we should not hurry the good work of Catholicism and union of sects. This zeal too much resembles the profane and impious zeal of the Hebrew priest, who must needs put forth his hand to guide the ark. The greatest bigot I ever knew, was a bigot to freedom of inquiry, — illiberal in favor of liberality, and uncatholic towards all who were not as catholic as himself.

¶48In this country there is perhaps less difference in the actual government and discipline of the Presbyterian and Congregational Churches, than what appears in their platforms. Still, there is a difference in practice. In judging of the s'ects, we are not to compare the lax administration of the systems, but the systems themselves. This would be like judging of a work by a spurious impression, one which the author himself disavows; like judging of an original by a bad copy. It is the same error which infidels have fallen into, — ascribing to the Christian system the faults of its unworthy professors. (a) Mild as the present times are, liberal as I know *35Mr. Barnard and the respectable members of his society are, still I believe they have no fancy to go over to the plaintiff’s sect. They prefer their own. They think it most agreeable to Scripture. They are willing the plaintiff should come to them, but do not choose to go to him. But, if he is really and truly a Presbyterian, he has a right to remain where he is, and to enjoy his own peculiarities while they enjoy theirs, (a)

¶49VII. To recapitulate.

¶50The Constitution secures the citizens of this State against persecution on account of their religious opinions and religious worship.

¶51It provides that religious opinions shall in no case form any ground of civil distinction, declaring that all men are equal in the sight of the law, and equally eligible to civil honors and offices.

¶52It provides for public instruction in religion and morality, because they promote the good of society; and declares that it can only be maintained by authorizing towns, in their corporate capacity, to support and maintain it.

¶53It exempts persons who are really and truly of a different denomination from the majority of the corporation from paying towards the support of the teacher elected by the corporate body. It leaves them at liberty to apply their means towards the support of public instruction in religion and morality according to their own persuasion, which is supposed to be equally useful to society.

¶54From the pleadings in this cause it appears that the plaintiff is a Presbyterian, and the First Parish in Amherst, Congregationalist.

¶55*36These are different sects, because they differ in church government and discipline, though they agree in doctrines.

¶56The consequence of all which is, that —

¶57The demurrer must be overruled, and the plaintiff must have judgment on the second count (a) , 1

¶58who heard the arguments, fully agreed with the majority of the Court, but had resigned his seat before judgment was given.