majority">Hosmer, Ch. J.

The court decline, on this motion for a new trial, to express any opinion, relative to the legal propriety of the plaintiff’s action. The question arises on the face of the record, and is the proper subject of a writ of error.

The result to which the court have come, renders it unnecessary to decide the objections made, respecting the constitutionality of the late act, confirmatory of marriages, when celebrated by an ordained minister, according to the forms *139and usages of any religious society or denomination. Whether the marriage between Kibbe and wife was legally had, according to the exiting law, is the sole point of our determination.

By the second section of the act “for the regulating and orderly celebrating of marriages” (Stat. p. 478. ed. 1808.,) it is enacted, “That no person whatsoever in this state, other than a magistrate or justice of the peace, and that within his own county or jurisdiction, or ordained minister, and that only in the county where he dwells, and during the time he continues settled in the work of the ministry, shall join any persons in marriage." The plaintiff offered to prove, that he was married at Ellington, by Amasa Dimick, who had been duly ordained a deacon, according to the forms and usages of the Methodist Episcopal church; and that, at the time of celebrating the marriage, he had the charge and oversight of the Methodist church and society in the above town, and resided there. The testimony was admitted; and to test the legality of such admission, is the object of the present motion.

Two questions are presented for the decision of the court; that is, whether Mr. Dimick was an ordained minister within the meaning of the statute; and whether he was settled at Ellington, in the work of the ministry.

To ordain, according to the etymology and general use of the term, signifies to appoint, to institute, to clothe with authority. When the word is applied to a clergyman, it means, that he has been invested with ministerial functions, or sacerdotal power. In this comprehensive use of the term, ordained, there is no question that Mr. Dimick was embraced, at the celebration of the plaintiff’s marriage. Ordination, properly speaking, is restrained to the investiture of authorty; and it is entirely owing to want of due discrimination, that it ever has been carried farther. In a state, where the person ordained, is invested with spiritual authority, and at the same time, receives the charge of a particular church and congregation, it is not wonderful, that all the rights of the clergyman, on the visible exercise of which he contemporaneously enters, should inaccurately be referred to his ordination. But, in reality, they are derived from different sources. His authority to preach the gospel and celebrate its ordinances, results from the ordination of the clergy; but the right to perform his ministerial functions in a particular church, depends on compact, and implies the assent, *140of the persons over whom they are exercised. Hence, it follows, that the ordination of a clergyman remains, after his separation from a church of which he once had the charge; and his spiritual authority continues, although he is not settled over a particular congregation. In the Episcopal church, the conferring on a person the holy orders of deacon or priest, is the invariable mode of ordination. To become a parson, invested with full possession of all the rights of a parochial church, is quite a different consideration. He must be instituted, which is an investiture of the spiritual part of the benefice; and after this follows induction, which confers on him the temporalities of the church. But he is ordained deacon and priest antecedently; and is denominated an ordained minister. 1 Bla. Comm. 388. In the Methodist church, their deacons and priests have conferred on them, by a general ordination, the investment of their ministerial functions, and are never, by that act, placed over a particular church. The statute harmonizes, entirely, with the meaning I have assigned to the term ordained; as it discriminates between the ordained minister, and his being settled in the work of the ministry; requiring both to confer on him the authority of celebrating marriages; and by undoubted construction, considering the former as not inclusive of the latter. On the contrary, if there can be no ordained minister, within the statute, unless he is, by the act of ordination, and the compact of a parish, placed contemporaneously over a particular church, invested with full authority; then, the Episcopalians, the Methodists, and all other religious sects, who confer holy orders separately from a specific charge over a church, are interdicted the celebration of marriages. It is a fact well known, that the ministers of the Episcopal church, for more than an half century, have been in the habit of marrying persons, with a universal acquiescence in their unquestionable right to do it. On the while, I entertain not a particle of doubt, that the plaintiff was married, by by an ordained minister, within the plain meaning of the law.

The remaining question is, whether Mr. Dimick was settled at Ellington in the work of the ministry. By a settled minister, in this case, I understand a person authorized to perform ministerial functions, and particularly, the celebration of marriage; resident in the county where he performs them; and who has the charge of a particular church and *141congregation. He must not be an itinerant, but a local preacher.

Assuming as true the testimony offered and admitted, Mr. Dimick was authorized, by the rules of the Methodist church, to preach; to administer the ordinances of baptism and marriage; to bury the dead; and generally, to feed the flock of Christ.

He had a constant local residence in the town of Ellington; and the charge of the Methodist church and society in that place. On the request of the church, he preached to them from the time of his ordination to the date of the plaintiff’s writ; during which time, they contributed, by voluntary contribution, for his support, as their minister, and local preacher and deacon; and “he owned and considered the above church as being his church, and they owned and considered him as being their minister and local deacon;" he, during all the time aforesaid, statedly exercising all the powers and privileges authorized by his commission. What more can be said of any person, settled in any ecclesiastical society? That Mr. Dimick was compensated, by voluntary contribution, instead of a stated salary, is a feature of no importance in the case. Of as little materiality is it, that a constant exercise of his ministerial functions, with the concurrence of the church and society, was offered in evidence, instead of a definite written agreement. They are only different media, through which the same fact is established, that is, that he contracted to be the minister of the church at Ellington; and having superadded to this the performance of his engagement, that he was, by compact, and fulfilment of it, the settled minister of the place. The testimony offered was rightly admitted; and a new trial I would not advise.

The other Judges were of the same opinion.Brainard, J.

doubted, at first, whether the statute did not require a minister, qualified to join persons in marriage, to be settled according to the Congregational form; that being the only form known in the community, at the time the statute was passed. But, on further consideration, he became satisfied, that the term settled being used in the statute without restriction, though applicable, at that time, to one form only, because it was then the only subject, became, equally applicable to other forms, when they were subsequently introduced.

New trial not to be granted.

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