Town of Charleston vs. Jonas Allen, 6 Vt. 633

The opinion of the court was delivered by MattocIís, J. — The first question presented by the bill of exceptions is, whether parol testimony was properly admitted to show the application of Charleston church to the conference to ordain if, and also the ordination of the defendant, as a minister of the gospel. The plaintiff contends that the minutes of the clerk of said church and conference should have been produced. There is no ground for the objection, as these scribes were not officers, and their minutes would have been no legal evidence, and could not have been read if produced.

They might have been memoranda to refresh the memory of a witness as to wfi'at he knew without them; The transactions of which these papers were a history, might as well be proved by other witnesses, as those who made the minutes, if the purpose of the proof was to show an ordination as a settled minister. This point was so decided in Dow vs. Hinesburgh & Weed, 2 Aik. 18. The other questions that have been argued relate to the construction of the charter, the votes of the town, and the settlement of the defendant, as a minister, in the town.

It is a Vermont charter, and differs from the New-Hampshire grants, and also from some of the Vermont charters.

The wording is, “ one share or right for the first settled minister of the gospel, in said township, to be disposed of for that purpose, as the inhabitants shall direct.” The town passed several conditional votes upon the subject of settling the defendant as their minister, and it has been discussed whether the doings of the town have constituted him a settled minister, so as to take the land under the charter ; but there is one prominent defect in the settlement, as the court view it, which, by two reported cases in this state, has been decided to be fatal.

We learn from the exceptions, and the votes of the town referred to, that the defendant was first a preacher of the gospel ; — that he gathered a church, and in 1825 he was there ordained, which constituted him a minister of the gospel, with a 10 administer the ordinances; — that the inhabitants of the town warned sundry meetings, and passed several votes on the su^Ject ^Ie defendant’s being their settled minister, and relating to the minister’s right of land. Among others, in 1825, the 9th

article of a warning was, “ Whereas, the council of Elders, who ordained Elder Jonas Allen, directed and advised him not to settle as a minister of the gospel for any set or limited term of time, — Therefore, to see if the town will settle him as a town minister of the gospel, in any other way, or direct and empower the union society to do the same — At the meeting it was voted to pass over this article.

The last vote, 16th March, 1829, was, “That Jonas Allen be first settled minister of the gospel, in Charleston, by his deeding to the town the northerly half of the first division lot of land, granted by charter, to the use and benefit of the first settled minister, in said town, and also the second and third division of said right of land.” The defendant, about the time of his ordination, contracted with the church, or inhabitants, to preach three years, and he did so; and since, he has continued to preach there, more or less, but not all the time; and the plaintiffs offered to prove, that in March, 1829, when the vote of settlement passed, defendant was under no obligation to preach in town at all; and that he refused to deed back part of said land.

At the time defendant was ordained, in 1825, he does not claim to have been settled. — At the time of the vote of settlement in 1829, the three years had expired; and there is nothing in the case that indicates a new contract, as to the time.

The charge of the court goes on the ground, that defendant’s accepting the vote of the town, constituted him a settled minister; and if this all does not shew, that defendant was under no obligation to tarry as a minister, for any length of time, then defendant should have been allowed to prove, that he was not, and could not be, agreeably to the canons of the conference to which he belonged.

It must therefore be regarded at present, as a case without contract or stipulation, to remain the minister of the town or society, for any definite time; and of course the defendant was at liberty to exercise his free will as to the time of his departure from his charge in Charleston, as a sense of duty should afterwards dictate. The question is, therefore, whether, if other things were all regular, he could, in that situation, be a,settled minister, or a first settled minister, within the meaning of the charter. And this is what has been determined in the cases alluded to. — Town of Sheldon vs. Goodsill, 1 Aik.

R. 225, and Dow vs. Hinesburgh & Weed, 2 Aik. 18.— In these cases, it was expressly adjudged, that there must be a permanent settlement, an engagement to continue for life ; and the reasons, in the last case, are given at large. With these decisions, we see no reason to be dissatisfied; at least so far as it requires the engagement to be of a permanent character, and not optional in the minister to go when he pleases. These cases did not decide the form and manner of entering into this engagement, nor is it necessary for us.

It is usual, in settling a minister, if he is a novitiate, to ordain him; if he has been ordkined, to instal him — the condition being previously agreed upon. The solemn ceremonies, on such occasions, seem to indicate that the minister is wedded to the church and people who have chosen him. Other forms less imposing might, perhaps, suffice; but in some shape the shepherd must contract an obligation to abide by the flock, or he will not be entitled to the reward.

When the engagement is entered into, and the minister is settled, the title to the land is instantly vested in the incumbent, not subject to revert to the town, even in case of the wilful failure of the minister to perform bis duties. It is only by ecclesiastical censure that the parish can compel him to perform, or punish for the neglect of duty. As the price of instruction is paid in advance, there should be some explicit understanding as to the time the teaching should be continued, so that no man of piety could attempt to evade it.

There are, indeed, some most respectable Christian denominations, who do not permit their ministers to locate for life, nor permanently ; and who, therefore, cannot take the benefit of these grants. These sects, at the time of the grants, either were not so numerous as to attract the attention of the legislature, or the descendants of the pilgrims did not then possess so much the spirit of Christian equality as now prevails ; which, it- is impossible now to know, and would be useless to inquire,- as it is not in the power of the court, by any known rules of

interpretation, to correct the procedure, since the spirit and reading of the grants manifestly exclude these missionary and apostolical portions of-the Christian ministry from the benefits of these public gratui-ties, to the infant settlements.

But this exclusion relates only to a part of the Vermont. grants; as many of the charters grant the lands, not to the first settled minister, but to the use of the ministry, subject to the control of the inhabitants of the town, — therefore, the exclusion is not very extensive, and not having been made during the extensive existence of the religious societies of the present day, may not be regarded as invidious.

In this view of the case, considering that the engagement of the defendant to be the minister in Charleston, if any, was of a temporary and not of a permanent character, for this reason, without examining for others, we consider he was not the first settled minister ; and, therefore, the title to the land, was never vested in him; or if there was any doubt as to the nature and extent of his engagement, then the evidence offered by the plaintiff, upon this point, should have been received. The judgment of the county court is reversed.