A word in regard to my advice to Mr. Fish. I received a letter from Mr. Fish some time since, in which he expressed some apprehensions that an attempt would be made by the natives to take possession of the Meeting-house, parsonage, &c. His letter enclosed rather a singular communication, signed by the Selectmen of Marshpee. I did not keep a copy of my answer to Mr. Fish, but recollect distinctly the substance of it. I alluded to the authority of the Legislature in the premises as I have above. That they intended to leave the parsonage as they found it, without undertaking to limit or modify the effect of former acts. That the appropriate mode for the natives to ascertain their rights to, or to obtain possession of, the parsonage, &c. was by resorting to the courts. That any forcible attempt by single individuals to obtain possession of the Meeting-house, &c. would be a trespass; that if numbers combined for that purpose, it would constitute a riot. I take it I hazarded no professional reputation by giving these opinions. For you very well know, that they would be correct, Mr. Fish being in peaceable possession of the premises, whether he were so by seisin or disseisin, by right or by wrong. I hope, my dear sir, that our experiment in regard to the affairs of our Marshpee friends may yet succeed. If not, I think we may console ourselves as one of old did: that if Rome must fall, we are innocent.
I am, very respectfully yours,
J. BARTON.
The Legislature having thus left the question, to be decided by the Courts, if Mr. Fish insists on holding the parsonage, the inquiry must arise on legal principles, how was Mr. Fish settled in Marshpee, and by what right does he, as a sole corporation, or otherwise, hold the parsonage, as an allotment set apart forever for the support of a Congregational minister, in Marshpee? Harvard College in which he was then, or had been a tutor, sent him there as a missionary under the Williams fund. The Legislature took no part whatever in the settlement. The Overseers permitted him to take possession of the Meeting-house and the parsonage land, so called, and it is understood that they consented he should cut the annual growth of the wood off the parsonage. But even admitting that the Overseers could so dispose of the property of the Indians, for promoting a particular religious worship in Marshpee, (which is explicitly denied,) could they convey any thing to Mr. Fish beyond the period of their own existence? By the law establishing the Overseers, they had no power beyond leasing land for two years. How then, could the Overseers grant for life to Mr. Fish the improvement of the parsonage and Meeting-house? They might have given it to him from year to year, while they were in office, but on the abolition of the Overseers, in 1834, and a restoration of civil rights to the owners of the fee of the parsonage, the Marshpee Proprietors, how could Mr. Fish continue to hold the parsonage against their will? Was it by virtue of his settlement, so that he now claims the land as a sole corporation? But a minister cannot be settled or constituted a sole corporation, without a parish to settle him. "A minister of a parish seized of lands in its right as parsonage lands, is a sole corporation, and on a vacancy, the parish is entitled to the profits;" 2d Dane's Abrg. 342. 7 Mass. Rep. 445. Mr. Fish is not seized of a parsonage in right of any parish or religious society, and therefore he cannot be a sole corporation. In point of fact, there was no legal parish in Marshpee, when Mr. Fish went there and took possession, under the Overseers, and not in right of the parish. A parish or precinct as the law then was, must be a corporation entitled and required to support public worship, and having all the powers and privileges necessary for that purpose. (See 8th Mass. Rep. 91.) And where there has been no parish as such created in a town, the town itself will be considered a parish. (15 Mass. Rep. 296.) Marshpee was not a town. The Marshpee Indians were minors in law, and there was no legal parish to settle a minister, or to hold a parsonage, and no one to make contracts as such. Harvard College had no power to settle a minister in Marshpee, nor had the Overseers any such power. Their supervision was temporal and not ecclesiastical. Besides, the actual Congregational society which subsisted in Marshpee, when Mr. Fish was sent there, in 1811, was composed of a majority of whites. Mr. Fish himself testified before the Committee, that the church at Marshpee, in 1811, consisted of sixteen whites and but five colored persons. The church members were a majority of whites, so that even had the church voted to settle Mr. Fish, it would have been a vote of white men having no interest in the premises, and not of Indian Proprietors. Mr. Fish admits that the church passed no vote. It was asserted by one of the old Overseers, Mr. Hawley, that five Indians called on him, after Mr. Fish had preached there, and personally expressed a wish to have him stay with them, but there was no official act, and no vote of the church or society, and no assent of the Proprietors of Marshpee in any form.
Who were the Congregational church, and who the society in Marshpee, in 1811? A regularly gathered Congregational church, is composed of several persons associated by covenant or agreement of church fellowship, (9th Mass. 277.) and a church cannot exist for any legal purposes, except as connected with a congregation or some regularly constituted religious society. (16 Mass. 488.) Where there are no special powers given to the church by the Legislature, the church cannot contract with or settle a minister, but that power resides wholly in the parish, of which the members of the church, who are inhabitants, are a part. (9 Mass. Reports, 277. Burr vs. First Parish in Sandwich.)
We have seen that there was no legal parish in Marshpee, in 1811, and therefore the Congregational church, if there were such then, had no power to settle Mr. Fish, even had they done so, which they did not. A parish may elect a public teacher, and contract to support him, without the consent of the church, if he be ordained by a council invited by the parish; but in Mr. Fish's case, he was ordained by the request and under the direction of the President and Corporation of Harvard College, the Trustees of the Williams fund, with the assent of the Overseers. There is then no ground whatever for assuming that Mr. Fish ever was settled legally over a Congregational parish in Marshpee, so as to establish him a sole corporation, to hold the lands belonging to the Proprietors of Marshpee, under the dedication deed of 1783. If that deed and the subsequent act of 1809, conveyed any thing, the conveyance was for the use of the inhabitants as a parsonage, there being no parish in Marshpee, distinct from the Plantation. In such case, it would be held to be a grant to Marshpee, (that is the town,) for the use of its ministers, (14 Mass. 333.) The grant, therefore, could it be regarded as such, was to the whole Proprietors of Marshpee, and they must first settle a minister before he could claim the use of the grant as a minister of the parish.
Neither has Mr. Fish, even if he had been legally settled, any just right, under the deed of 1783, to take the whole parsonage, because that deed states the principal object of the sequestration of the land to be, for the important purpose of promoting the gospel in Marshpee, and merely referred to the only worship then known there, which was Congregational. When Mr. Fish went there in 1811, there was a Baptist church, and they objected to his taking possession of the parsonage.
There is a case in point in the 13th Mass. Rep. 190, which decides, that where the original Proprietors of a township appropriated a lot of land for a parsonage, and at the same time voted that they would endeavor that a Congregational minister should be settled in the township, such vote ought not to be construed to limit the benefit of the parsonage to a minister of the Congregational order, and that if the inhabitants of the parish should become Christians of any other Protestant sect, they would be entitled to the land, and that a Congregational society, incorporated as a full parish would have no right to the parsonage. Neither can a parish convey a parsonage to a minister to be held by him in his personal right. By this decision, the Baptist or Methodist church in Marshpee have as good claim to the parsonage as Mr. Fish has.
The dedication, or whatever it may be called, of Marshpee parsonage, was made by Lot Nye, &c. in 1783, and confirmed in 1809, by the General Court. Mr. Fish did not become a minister in Marshpee, until 1811. Whoever settled him there, for the Indians did not, made no stipulation as to the income of the parsonage, which could bind the Plantation. The society only, could make such stipulation, and they did not act in the premises. The Overseers could make no stipulation either to bind the parish or the proprietors, because their power only extended to giving a lease of land not exceeding two years. In the case of Thompson vs. the Catholic-Congregational Society in Rehoboth, (5th Pickering, 469,) it was settled that where there was a ministerial fund in a parish, and the society settled a minister stipulating to pay him a salary, without taking any notice of the income of the fund, he must be considered as accepting the salary as a full compensation, and the society are entitled to the fund. Harvard College settled Mr. Fish in Marshpee, and agreed to pay him about five hundred dollars, or two-thirds the proceeds of the Williams fund. The society to which Mr. Fish was sent to preach, took no notice of the parsonage, nor did the Proprietors of Marshpee, hence Mr. Fish cannot hold the proceeds of the parsonage by right of succession, or by stipulation, either from the society or the Marshpee Proprietors, and therefore the Proprietors of Marshpee are entitled to the parsonage.
There is one other consideration that might legally deprive Mr. Fish of his rights in the parsonage, even if he acquired any by the transaction in 1811, which is denied. When he went to Marshpee, and first preached there, he was of the Unitarian faith, and so continued some time. Subsequently, (and most undoubtedly from high conscientious motives,) he became Orthodox in his creed, and has remained so ever since. [This fact has been named by the President of Harvard College, as one reason why the Williams fund has continued to be diverted from its proper use; the delicacy Harvard College felt at dismissing Mr. Fish, lest it should be ascribed to persecution, for his change of sentiments from Unitarian to Orthodox.]
But if Mr. Fish claims to hold the parsonage by the "laws," he must be governed by the decision of the Court in the celebrated case of Burr, vs. the first parish in Sandwich. Mr. Burr was settled an Unitarian, and became Orthodox, and this the Supreme Court decided was just cause for the parish to dismiss him. Chief Justice Parsons, said in that case, that "according to the almost immemorial usage of Congregational churches, before the parish settle a minister, he preaches with them as a candidate for settlement, with the intent of declaring his religious faith, and if he is afterwards settled, it is understood that the greater part of the parish and church agree in his religious sentiments and opinions. If afterwards the minister adopts a new system of divinity, the parish retaining their former religious belief, so that the minister would not have been settled on his present system, in our opinion the parish have good cause to complain." On this ground the Court decided that Mr. Burr had forfeited his settlement.