Minister of the Reformed Protestant Dutch Church v. Bradford

The question is, whether the salary of the defendant in error ceased on his suspension by the Classis of Albany, or Continued during his suspension, and until his pastoral connection with his congregation was dissolved. It is conceded that this question depends, for its Solution, upon the contract between the minister and his congregation or church. The contract is contained in the call, taken in connection With the rules and constitution of the Reformed Dutch Church, to which both the pastor and the congregation, by the call, stipulated and agreed to remain subordinate.

The question,

The call.

The defendant in error contends, that by this contract, his salary was to continue as long as he should remain in office; and the plaintiffs in error insist, that his continuance depended upon his performance of the services, and his discharge of the duties of-his office.

Points.

*By the terms of the contract, the salary of the defendant was to be paid him yearly, during the continuance of his ministry in the church to which he wassailed; and he continued the minister of that church until the 26 th of ^une’ 1821," when his pastoral connection with the plaintiffs in error was regularly dissolved.

Defendant in ed raids ter til mi 2Stb'

But the performance of the duties of the office, is said to be the consideration and condition of the promise to pay the salary; and it is contended that these services must first be rendered by the minister to his congregation, before he is entitled to demand the stipulated compensation from them; or, in other words, that the performance of the duties was a condition precedent to the right to the salary.

ordinary employments of servants, and contracts for service, where no special agreement regulates the rights obligations of the parties, the rule is, that the servant to earn ^is wages by the service he is to render: he consequently can claim no wages until he has earned them by his services; and in an action against hi.*- (wsplaypr for eom

In ordinary contracts of formance cedent°n ^

ment.

precedent, Performance not a condi-

continuance minister is the condition,

But it was conceded, that such disabilities must excuse the pastor, and that his salary would not be suspended during his occasional interruption in the discharge of his parochial duties, from causes which he could not control. In the present case, the suspension of the services of the pastor was the consequence of his own misconduct; and it is truly said, that the same indulgence is not due to such intentional delinquency, as would be accorded to an involuntary failure in the discharge of the duties of the office. But does it follow, that every wilful delinquency is a cause of forfeiture of salary ? Was it the intention of the parties to this contract to make the full and faithful performance of all the obligations and duties, while the pastor is not actually disabled by some casualty from performing, a condition precedent to his right to compensation for his

In this case, the plaintiffs in error, by their call, stipulated to pay the defendant in error his salary as long as he continued the minister of the congregation. I see no sufficient reason for annexing to that engagement the implied condition of the faithful performance by the minister of the services required of him by the contract, as the eon

If the failure of the clergyman, in the performance of the services required of him, by reason of his own.misconduct, were to be a defence to an action at law for his salary, to sustain the defen'ce, the misconduct which was the causé of the failure must be shown; and how are the charges against him to be substantiated? Accusations implicating the moral character of the accused, and which are preferred against him to deprive him of the benefit of his contract, must surely be open to refutation on his part, and must be fully established by his adversaries, before they1 can be admitted to bar his recovery. Is not the character of such litigation, and the probable complexion, of the evidence to sustain and repel the defence on which it is. to turn, sufficient ground for excluding it from the civil tribunals? Can

The founders of the ecclesiastical system of government for the church' to which this congregation belongs, felt the full force of these impressive considerations; and to guard against the mischiefs inseparable from public investigations *in the civil courts, of charges against a minister of the gospel, involving his.moral conduct or official duties, made them subjects of ecclesiastical cognizance exclusively, and vested the entire jurisdiction of all such offences in the assemblies provided for the government of the church.

This arrangement was wisely adapted to the relation that was to subsist between the minister and his congregation, and the duties required of the pastor in his interesting and responsible situation. The obligations imposed on the minister by the call, are not confined to the actual services he was to render to the congregation immediately under his charge. They extend also to his own private life, and his moral and religious conduct. He is faithfully to officiate, in his character of pastor for his congregation, in all the services of the church and to fulfill the whole work of the gospel ministry; and he is to observe, in all the relations of private life and his own demeanor, a line of conduct with his moral obligations and religious duties, and calculated and tending to maintain the honor of religion and promote the success of the gospel. ' These obligations

It was foreseen, by the ecclesiastical assembly which ordained the rules and constitution of the Eeformed Dutch *Ohurch, that the'frailties of human nature would sometimes lead to aberrations from the religious and moral ob-. ligations of those who might be in the office of the ministry ; and they so organized the ecclesiastical system, and so framed the contract which was prescribed for the relation of congregation and pastor, as to refer all matter relating to those obligations and duties, and the punishment of transgressions against them, to the ecclesiastical judicatories, in exclusion of the cognizance of the civil tribunals. They have the right, under the free institutions of our country, to the full benefit of this arrangement; and the wisdom of its provisions are exemplified in its practical operation.

The parties to this controversy themselves, refer to these rules and constitution as the laws to which they are to conform, and profess to rest:the construction of the contract on those ordinances, and the subsequent articles explanatory of them. Let us turn to those instruments, and see what the rules are which they apply to this subject. First, it is declared that a minister of the word, being once lawfully called in the manner prescribed by the articles, is bound to the sanctuary as long as he liveth, and is not at liberty to devote himself to any secular vocation, except for great and

These provisions show, that the faithful observance by the minister of his moral and religious obligations to his church or congregation is to be enforced, and his transgressions punished by the ecclesiastical assemblies, and not to be made the subjects of judicial inquiry in courts of justice. To these ecclesiastical ordinances the congregation and the minister both acknowledge themselves to be subordinate; and accordingly, in this case, the minister was at first admonished to abstain from the repetition, of

T , . It is conceded that the defendant in error, by accepting ca^> assumed to perform faithfully all the duties required of him as the pastor of the congregation ; and the wilful neglect of those duties, or a gross offense against the obligations imposed upon him by the call, or the ordinances and articles to which he engaged to be subordinate, subjected him to censures, admonitions, and punishment by the ecclesiastical judicatories. But the faithful performance of those duties, and the observance of those obligations, were not made a condition precedent to the payment of his salary, either by the terms of the covenant, or by the spirit and intention of the call, and the rules and constitutions to which it refers. The pastor'was bound faithfully to fulfill the obligations of his call, to oppose a steady and efficient resistance to temptation, and, by word *and example, always to promote the spiritual welfare of his people. He unhappily failed in his solemn engagement. A besetting sin prevailed over his enlightened understanding, and obscured his lustre. "With a Christian spirit, the consistory of his congregation, and the classis of Albany, to whom the case was referred, sought to reclaim him from the influence of his pernicious habits, and to restore him to the church. He was unable to conquer the propensity to which he had yielded; and the permanent interest of religion demanded his removal from his office. His pastoral connection with his congregation was ^dissolved, and his claim to his yearly stipend was at an

The two events which the constitution of the church contemplates as terminating the ministry of the pastor, are his death and his removal by the classis from office; and so permanent is his connection with his congregation considered, that provision is made for him during the remnant of his life. After he should .be disabled by age or infirmities, from performing his pastoral services, he is allowed to retain the honor and style of his office, and is to be provided with an honorable support by the churches to which

The defendant in error was the regular pastor of the plaintiffs in error, and that connection could not be severed by the plaintiffs. If he was guilty of a public and notorious *offense, which rendered his appearance in the pul pit highly offensive, his consistory might interfere, and shut the door against him by suspension, and refer him to the classis for trial. In that assembly, the accusation against him was to be investigated, and the final sentence to be pronounced. The matter could not be drawn into the courts of law, or made the subject of judicial cognizance. If the accused was guilty of the charge, his sentence was to be pronounced by the classis, and could only be reviewed by a higher judicatory. The offender may, to prevent scandal, be prevented from the exercise of his office until he is tried by the classis; but he is to be referred to that assembly for trial; and if found guilty, that assembly is to declare and inflict the punishment. Courts of law do not interfere with the discipline of the church, or the punishment of ministers, by the sentences of the ecclesiastical authorities; and if the right of the defendant in error to the salary for which he sues, has been lost to him, it must be the sentence of the classis which has produced that effect; and the plaintiffs in error must rest upon that sentence alone for the support of their defense to the action at law. The plaintiffs in error, in effect, admit this

It appears that the defendant in error was, by a regular sentence of the classis of Albany, suspended from the office of the ministry, and was under the sentence of suspension during the whole of the period for which he now claims the payment of his salary; and it is contended that the right to salary was suspended by that sentence, and *was never afterwards removed; but was wholly extinguished by the subsequent sentence of removal.

The classis of Albany had the right to dissolve the pastoral connection between the defendant in error and his congregation, or to suspend him from the office of the ministry, at their election. If they had dissolved the pastora¡ connection, they would have extinguished his right to ' J , 0 0 his salary; and when they did finally pronounce the sen-of removal, the contract was dissolved. But they chose the milder course of suspension. How could that sentence deprive the pastor of his right to the salary covenanted to be paid to him during his continuance in the ministry, under this call ? A sentence of suspension does not remove the incumbent from his office: but inhibits him from the exercise of his official powers and functions. The defendant in error continued the pastor of his congregation during his suspension, and until the severance of his official connection with them. The office of minister in that church was full, and no successor could be called. If, then, the legal effect of the covenant was an engagement of the plaintiffs in error to pay the salary as long as the defendant in error continued the minister in their church, as I have endeavored to show the true construction of the

Dissolution only, not suspension, deprives a minis-Church of his salary.

He continues fagM^suspension.

But the plaintiffs in error insist that the sentence of suspension, being for a public and notorious offense of the defendant in error, wUs decisive - evidence of his failure, by his own wilful default, in performance of the services required of him by the contract; and on that ground they put their defense in the court below. If my construction of the call is correct, the continuance of the salary of the pastor depended on his - continuance in office; and in that view of the case, it is manifest that the sentence of suspension would be- no defense against the claim.

But assuming that a dereliction of duty, or the disability of the incumbent, from his own misconduct, to fulfill the obligations of his call, would justify the ecclesiastical assemblies of the church in forfeiting the salary of the offending pastor, can a sentence, temporarily suspending him from the exercise of his functions, have that effect, or be sufficient evidence to a court of law of such a wilful default as to work a-forfeiture ? Considered as evidence of delinquency, it must refer to the time which precedes the

It was said that the suspension of the defendant in error from office, for the offense, was the initiatory step to his

By the 79th article of the rules of church government of the Reformed Dutch Church, and the 72nd explanatory article, ministers guilty of public and notorious misconduct, which would render their appearance in the pulpit unbecoming and highly offensive, are to be suspended from the exercise of their office by the consistory, until they are tried by the classis; and the proceedings of the consistory, in such cases, is declared to be a prudent interference, and a binding over of the person accused to the judgment of his peers. The' offense of which the defendant in error was accused, was such as to expose him to that proceeding ; and if he had been suspended by the consistory and referred to the classis for trial, it might have been contended *that the suspension, trial and final sentence, were parts of the same proceeding, having for their object the conviction and deposition of the offender for the offense with which he stood charged. I am not prepared to say that such a suspension would deprive the accused minister of his provision for his support during his trial, and while his connection with his congregation still continued; or that it would be evidence to a court of law of such defaults on his part as to defeat a recovery of the stipulated compensation for services, which he was, by that suspension of his functions, hindered from performing. But whatever the effect of such a proceeding might be, this is not such a case. This sentence of suspension is widely different from that of the consistory: and differs from it in its object and purpose. The consistory suspends the minister who is charged with an offense for which he is to be tried, and bind him over to the judgment of his peers. This is a function of the classis; it contemplates no trial, nor any ulterior sentence of deposition. It was essentially discipli

The two sentences given in evidence by the plaintiffs in error, on the trial at law, were the resolution of the classis of Albany of 2d December, 1820, suspending the defendant in error from office, and the resolution of the same classis of the 26th June, 1821, dissolving his pastoral connection with his congregation. These two resolutions are distinct and separate acts. They have no connection with each other. The last sentence was not founded on the first, nor the consequence of it; but was a new exercise of. the powers of the classis, recommended by a resolution of the general synod, advising a dissolution of the pastoral con: nection between the defendant in error and his congregation; and it was adopted in pursuance of that, recommendation, and avowedly for. the purpose of carrying it into effect.

Nature of the suspension.

The first resolution or sentence of suspension was made after an investigation by the classis of the truth of the charge of inebriety, preferred by the plaintiffs in error against the defendant in error, by a representation in .writing *from them, to the classis, whereby they earnestly entreat that assembly, to take such measures touching the premises, as the constitution and rules of the Deformed Protestant Dutch Church prescribe, and the nature of the case required. This was a complete and perfect decision and sentence upon the whole case. It established the guilt of the accused, and settled the measure of his punishment. A continuance of. the offender in guilt might be sufficient cause for his deposition by the classis; and an obdurate adherence to his denial of the charge after his conviction, and the neglect and failure to give the classis evidence of repentance and reformation, might, after reasonable time allowed him for the purpose, justify that judicatory in proceeding to dissolve this connection with his congregation; but, until an effectual sentence of dissolution was pronounced, the offender continued under the disciplinary sentence of suspension, and the chastisement it inflicted was the only punishment for his offense, That sentence did not dissolve the connection between the defendant in error and his congregation*

*The classis to whom it belonged to decide, in the hope óf reclaiming the offender, suspended him from the exercise of Ms official duties until he should reform; but they did not absolve the congregation from their obligations to him, nor free him from his engagements to them. He was still bound to the service of the sanctuary, and attached to the congregation of the Reformed Dutch Church in the city of Albany. He was not at liberty to devote himself to any secular vocation; and if his salary was suspended, he was left without support from his congregation, and under engagements which prohibit a resort to worldly employments for the supply of his wants. The ordinances of the church have not declared the forfeiture or suspension of salary to be a consequence of á sentence of suspénsion from thé office óf the ministry; nor are the ecclesiastical judicatories authorized to make it so; and the spirit of liberality, forbearance and Christian charity which the whole system breathes, forbids us to believe that they intended so severe a penalty as the entire deprivation of support, tó be inflicted on any minister of the gospel, whose de

If the sentence of suspension, in this case, suspended the right of the defendant in error to his salary, it must be because the minister is disabled thereby from performing his pastoral services for the congregation; and if this sentence produced that effect, every suspension of the pastor, whatever the cause of it may be, must have the same operation. Mow, the pastor may be suspended by the classis for any departure from doctrine, morals or duty: the parties may appeal from the sentence; and until that appeal is determined by the higher assembly, it cannot be known whether the sentence of suspension was right or wrong. Suppose differences to arise between a minister and his congregation, on some point of doctrine or official duty, and he is accused of heresy or faithless desertion of office, and on the complaint of the consistory, *he is suspended by the classis, and appeals from the sentence; is his salary to cease until the controversy between him and his congrega tion is finally settled? Suppose the decision to be against him; is the forfeiture and loss of salary during his suspension, to be the penalty for asserting opinions which were erroneous; but which he may have conscientiously believed to be correct ? and if he prevails in his appeal, would it not be unjust to deprive him of his salary during the period of his suspension ?

But the sentence of suspension in this case was for wilful misconduct, and has been confirmed on appeal; and the defendant in errpr, it is said, cannot complain of a suspension of salary produced by his own misconduct; and which the regular authorities, by whose decisions he is bound, have pronounced to be just.

It has been shown, that if the sentence of suspension is a defence to the action for the salary, it is the failure produced by the sentence, in the performance of the services required of the pastor, which bars the recovery; and it will not be contended that a sentence of suspension for misconduct, operates differently from a sentence for faith-

It is objected that the congregation, if compelled to wait for a sentence of removal before they can disengage themselves from their pastoral connection with an unfaithful %nd immoral pastor, may be subjected for a long time to an onerous charge, without any consideration for it. I eon-fess I do not see the force of the objection. The pastoral connection ought not to be dissolved on light grounds; nor ought the congregation or its consistory to be the judges of the sufficiency pf the causes to dissolve it; but the consistory may pefer a complaint or accusation to the classis, and the classis have the power of deposing the minister; and whenever his misconduct shall satisfactorily appear to that assembly to require his deposition, a sentence of removal may be pronounced, which will sever his pastoral connection with his congregation, and thereby terminate his right to. the stipulated salary. This assembly must meet at least once in every three months, and may, in cases of emergency, be sooner called; and, if the welfare of the congregation, and the interest of religion require, it may apply the decisive remedy of deposition, as promptly as a regard to the just rights of the accused to an impartial trial and full defence will admit. A more effectual or speedy remedy cannot reasonably be required.

It is true that the deposed minister may appeal from

If, therefore, the classis of Albany had, on the first application, dissolved the pastoral connection of the defendant in error with the plaintiffs in error, instead of suspending it, his right to the salary, and their obligation to pay, would have ceased at that time; but having chosen the palliative course of suspension, and no valid or effectual dissolution having taken place until the month of June following, the connection of the defendant in error with the ^congregation as their pastor, continued to that time; and though he was under sentence of suspension, his right to his salary was, in my j'udgment, unaffected by that sentence, and he was entitled' to recover it.

The ecclesiastical j'udicatories are the tribunals to which both the contracting parties agreed to submit themselves, on their spiritual relations: their decrees, in the last resort, are conclusive, and cannot be impeached by either party; and if they refuse to dissolve the pastoral connection, but yet suspend the pastor, it must be intended that they had just grounds for the decision; and the congregation, however inconvenient or disadvantageous it may be to them, must conform to the sentence.

It remains to notice the cases and authorities to which the court has been referred.

Authorities considered.

The first in order was, an expression which fell from 1 1 Lord Mansfield, in the case of Martin v. Hinde, (Cowper, 437,) and which was relied oh as importing an opinion, that jn contracts between a pastor and his people, the services of the pastor are the condition, as well as the consideration of the salary. But a reference to the leading facts of that case, and the scope of the reasoning in which

Martin, v. Hinde, Cowp. 437.

In the case cited, the defendant, who was the rector of St. Ann’s, Westminister,' had appointed the plaintiff to perform the office of curate in his church of St. Ann’s; and promised to allow him a yearly sum for his maintenance in the curacy, and to continue him to officiate in the church until he should be otherwise provided of some .ecclesiastical preferment, unless,, by any fault by him committed, he should be lawfully removed from the same. The curate had been appointed to the readership of the parish ; and two notices had been given by the rector to the curate, to quit the curacy by a given day ; and a successor had been appointed to the office, who had displaced the plaintiff", and officiated as curate during the period of time.for which a salary was claimed by the plaintiff. The material *question was, .whether the appointment of reader was an ecclesiastical preferment, within the sense of the, contract; and the court decided that it was not. ' It was further objected, that the plaintiff had no license from the bishop to.officiate as curate of the parish, and .was therefore, removable" at pleasure by the rector, and had been legally reproved from the office. The court inclined to the opinion" that there was sufficient evidence in the case, of an authority from the bishop to the plaintiff, to officiate as rector in the defendant’s church. It is in his discussion of this point, that Lord Mansfield uses the expression relied on. He observes, that the defendant, in his notices to quit, did not object the want of a license; and that if he had, the defendant might have immediately procured one; and then adds, “ If, after reasonable notice, he does not procure every qualification necessary *to enable him to . do , the duty, the defendant would be excused -from paying him the salary; for the plaintiff’s service as curate is not only the; consideration,. but the condition of -the salary.” It is manifest that the decision of the court on the point, turned on the fact of license by implication, and the waiver of the objection to the want of it; and did not rest in any degree on the posi

The rule applied by Ld. Mansfield, to that case, was, consequently, correct; but that rule is not applicable to this contract, for the call in the case before the court, bound the pastor to the congregation for life, and the pastoral connection between them could not be dissolved by themselves; and the covenant of the plaintiffs in error was, to pay the defendant in error his stipulated salary as long as that connection should continue. But again, to understand the true import and bearing of the expressions of Ld. Mansfield, it must be borne in mind that they were applied by him to that part of the defense, which objected,„ to the plaintiff’s right to the sum allowed him for his main

The case of The First Religious Society in Whitestown v. Stone, was a contract of-the defendant to pay a subscription for the support of the Bey. S..F. Snowden, as a minister of. the gospel of said society, so long as said Bev. Mr. Snowden should administer the gospel in said society, and the subscribers reside within four miles of the meeting hous.e; and the question was, whether it was an obligatory contract, or depended wholly on the will of the subscriber. The court decided that the contract was valid in law; that the consideration was the preaching of the gospel by the Bev. Mr. Snowden; and as long as he continued to administer the gospel, and the defendant to reside within four

First Rel. Soc. Whitestown v Stone, 7 John. 114 .

The case of Dieffendorf v. The Reformed Calvinistic Ohurch Canajoharie, is more material to the present case. It was a case in error on certiorari from a justice’s *court. Dieffendorf was sued before the justice, for his subscription for the support of the ministry of the church, “ as long as the Rev. John I. Wack is and remains our regular preacher.” Wack had been tried and deposed by the classis of Montgomery for immoral conduct. He appealed from the sentence, which appeal was sustained. There were subsequent proceedings in the case which had been held irregular. The defendant" in the court below offered to prove by witnesses, that Wack was a man of immoral conduct, and guilty of drunkenness, profanity and other vices degrading to his character as a minister; but the testimony was rejected. The supreme court held that the justice was right in rejecting the testimony offered to criminate Wack; and the judge who delivered the opinion of the court said, that the only difficult question in the case was, whether Wack, in the sense of the contract between the parties, had remained the regular minister of the Reformed Galvinistic Church of Canajoharie; and he says that his conclusion is, that the relation of minister and congregation was not dissolved; and that the defendant below was bound to pay his subscription. The proceedings of the classis in that case, whereby Wack was deposed, were held irregular and void; and the court observed that Mr. Wack uniform

Dieffendorf v. Ref. Calv. Ch. of Canajoharie, 20 John. 12 .

I cannot construe the agreement between the parties to mean, that before he could claim his salary in a civil tribunal, it would be incumbent on him to show, and to prove that he had fulfilled- all the hopes and expectations of those who gave the call, and which are expressed in the instrument set forth in the pleadings. No doubt a confidence tiiat the defendant’s labors in -the gospel would be attended with a blessing, that he would preach the word in truth and faithfulness, that he would administer the holy sacraments agreeably to the institutions of Christ, and fulfill the whole work of the gospel ministry agreeably to the-word ofG-od and to the rules and constitution of the Dutch Church, induced the plaintifis in error to select *the defendant as their minister; but I cannot think that these expectations formed -any part of a condition precedent The terms of the instrument do not, in my judgment,,admit such a construction. All these Tropes and expectations are -introduced -in the instrument as reciting the inducement to the agreement between the parties; 'but form-no part of the legal obligation of the

I not only think that if this agreement be construed in reference to its terms only, no other interpretation can be given to it; but it seems to me that a regard to the situation and objects of the parties, and a due respect to those principles of our institutions which require us forever'to keep separate ecclesiastical and civil jurisdictions, require that such an interpretation should be given to the instrument under consideration, as will preclude from our courts of law the polemic discussions which mnst necessarily arise in our civil courts, if they were to take upon themselves to decide whether the word had been preached in truth and faithfulness, whether the sacraments had been admin istered according to the institutions of Christ, and whether the work of the gospel ministry had been fulfilled agreeably to the word of God. These are questions not fit for a lay tribunal, and it seems to me the call reserves them for proper ecclesiastical judicatories.

The call purports that the defendant in error is to accept it in subordination to the rules and constitution of the Reformed Dutch Church as established in the synod of Dordrecht, as ratified and explained by the ecclesiastical judicatory of the Reformed Dutch Church of the city of Albany. The rules and constitution here referred to, are Presente^ by the case; and by these it appears that in the Dutch Church there are four ecclesiastical assemblies or *judicatories; that is to say, consistories, classes, particular synods, and general synods; that these rank in the order in which they are named, and that an appeal lies from an inferior to a higher assembly. By the 79th and 80th articles of the ordinances of Dordrecht, if a minister is guilty of the offence of habitual drunkenness, he is to be suspended by the consistory, and it shall be left to the de

Rules and fte8churehn °f

These citations from the rules and constitutions of the church, show very manifestly, in my opinion, that the ecclesiastical judicatories had a right to suspend the defendant, or to depose him; and that so, whenever they thought he was unworthy of being a minister, they might annul all his claims to compensation; or, in other words, they might determine that he should cease to be the minister of the church. The question then is, have they done this, and when did they do it ?

On the 5th day of September, 1820, the consistory, without, as it appears, suspending their minister, as they have done by the 79th article of the synod of Dordrecht, made a representation to the classis of Albany of his evil habits, and intreated that the classis would proceed according to the rules of the church. On the 2d of December, 1820, the classis declared the defendant in error guilty, and pronounced a sentence, that he should be suspended from the office of the ministry, until “ he should give the classis evidence of repentance and reformation.” From this sentence the minister appealed to the particular synod of Albany, which, on the 16th May, 1821, decided that the appeal should not be sustained. From this decision the *plaintiff appealed to the general synod, which, on the 14th of June, 1821, affirmed the decision of the particular synod, and passed a resolution advising the classis of Albany to proceed to dissolve the pastoral connection between the plaintiff in error and the congregation of the Dutch Church in Albany. On the 26th of June, 1821, the classis of Albany, pursuant to the advice of the general synod, decided

Proceedings them’

■From this resolution of the Classis Mr. Bradford appealed to the particular synod, Which appeal was not sustained, and the same fesolutidn was confirmed according-to ’the resolution of the 21st -of May, 182-1, Which -is'referred-to -as before set forth; -but -there -is -no such resolution appearing in the case.; probably -the-resolution-of the 16th of May, ■1821, is intended.

From -this -resolution of the particular -synod, - Mr.' Bradford appealed to the general - synod. On the- saíne day that it is stated they decided not tb sustain the former appeal and to affirm -the decision ■ of the particular synod, *that is, on the -14th of June, 1821, the .general syriod is represented to have determined to ‘sustain the second appeal of Mr. Bradford, -as to the dissolution of the pastoral connection, and'-on the same day to have resolved that the classis should be advised to dissolve the connection between Mr. Bradford and his church. It is-stated in the case,"that in .pursuance of this -recommendatory resolution, -the clas*

There appears to me to be inconsistencies and incongruities in these resolutions and dates, which I have in vain endeavored to reconcile. It is> very questionable, in my mind, whether the proceedings have been according to the rules and constitution of the church; but be that as it may, I feel well satisfied that the connection between Mr. Bradford and the church existed until it was dissolved, if it ever was duly dissolved, by the particular synod, on the 27th of June, 1821. This seems to be admitted; and if it was, then till that time Mr. Bradford was the minister of the church, and was entitled to his salary for as long as he continued to be so.

I do not find any difficulty in reconciling this opinion with any case which has been cited, or which I have met with. In Martin v. Hinde, all which relates to the present case, went on the ground that the curate was never qualified to take upon himself the office; and so, if Mr. Bradford had been disqualified, and could never have been minister of the church, the precedent condition would have failed, and he could never have claimed any salary. In the case of The Religious Society of Whitestown, the agreement of the defendant was to pay so long as the pastor should administer the gospel in the society, and was not, as in this case, to pay so long as the clergyman should continue minister of the church. The judgment in the case of The Church of Canajoharie, appears to me to support the opinion I entertain, that the connection ^between a minister and his church can only be dissolved by the proper ecclesiastical tribunals; for, in that case, it was decided that testimony to show that the clergyman was not entitled to his pay because he was a man of immoral conduct, and guilty of drunkenness and profanity, was properly excluded by the inferior court before which the cause was tried. I should very unwillingly assent to a decision of this court, which should establish that our temporal tribunals were

Martin v. Hinde, Cowp. 437.

7 John. Rep. 115 .

20 John. R. 12.

In my opinion, the judgment of the supreme court must be affirmed.

This cause depends on the construction of the covenant of the plaintiffs in error, by which they engaged to pay the defendant in error a certain salary as long as he “ continued their minister in the said church,7' and “ during the continuance of his ministry in the said church." By a resolution of the classis of Albany on the 2d of December, 1820, the defendant was “ suspended from the-office of the ministry, until he shall give the classis evidence of repentance and reformation.” The question is, did this sentence remove him from the ministry in the church ? To determine it, let us suppose that he had given the classis evidence of repentance and reformation, within two or three months after the sentence, and the suspension had been withdrawn; would any one have ever entertained a doubt, that during that period he had continued a minister in the church ? The very fact that the same classis, afterwards, on the 26th of June, 1821, did “ dissolve the pastoral connection” between the defendant and the church, is in itself an admission and conclusive proof, that up to that time the pastoral connection was not dissolved. This appears to me a *very plain view of the case, and excludes the considerations which have been urged respecting the defendant’s having disqualified himself. The plaintiffs m error have' not provided in their covenant for any such event. They have made the only condition of his receiving his salary, the fact of his continuing a minister in the church: and where the parties have themselves thus prescribed the terms on which the salary was to be paid, it seems to me that it would be making a new contract for

Even in the most broad and extended view which could be taken, suspension from 'office cannot deprive the incumbent of the stipulated compensation during such suspension. By the constitution of this state, whenever an impeachment is prosecuted against the chancellor or any justice of the supreme court, the person so impeached is suspended from exercising his office until his acquittal. In the event of an acquittal, no one would doubt that the person impeached would b.e entitled to receive his salary for the time while suspended. The result cannot affect the *question of right. It must be the same, whether the party be acquitted or convicted; and such is believed to be the uniform practice in cases arising in the military and naval service of the United States. An arrest suspends the officer, but I cannot learn that his right to receive his pay up to the time óf sentence, was ever questioned.

In enumerating the causes which make a church in England void, and deprive a rector of the right to his tithes, baron Comyn does not allude to the suspension of the

The ecclesiastical tribunals have disj solved the connection between the plaintiffs and defendant in error as pastor and people ; but, after the defendant in error was suspended from the office of the ministry, and pending the proceedings which resulted in dissolving the pastoral Connection between him and the Reformed Protestant Dutch Church in the city of Albany, salary accruan<I is claimed, and the question is upon the right to recover it.

Connection dissolved.

Salary claimed euspension*8 tSn

By the call, which is the covenant between the parties, the plaintiffs in error promised to pay the salary to the defendant in error during the continuance of his ministry in their church; and although the right to salary must depend upon the covenant between the parties; yet as that limits the salary to the continuance of the defendant in error as the minister of the plaintiffs in error, it is material to consider who has been the causé of suspending and finally terminating that connections The only evidence upon that subject is to be found in the proceedings of the different edclesiastiéal tribunals in which the plaintiffs and defendant in error have appeared, as parties. Hence the ^nature and character of thosé tribunals, and the effect of their'proceedings, deserve consideration.

Call.

It is part of the original compact among men, that they w¡¡¡ submit to the rulés and regulations of the society to which they belong. According to the constitution and laws of this state, we have no established religion; but by that constitution and those laws, every religious denomination is tolerated. This toleration must imply not

Our social compact pro-church in its Smut S°V6rn"

courts t0 re. sPect their proceedings.

From these- proceedings, it appears that at a consistorial meeting held on the 5th day of September, 1820; plaintiffs in error made a representation, in, writing to the-reverend classis of Albany, stating, “ That reports had existed for a considerable time past imputing to the defendant in error, their minister, repeated instances of inebriety ; that feeling unwilling to credit such reports, and desirous of preserving the character and usefulness of their minister, whose talents they held in the highest estimation, the elders had both 'formally and informally communicated the prevalence of said reports to- him, and admonished him in a. friendly manner of their ruinous tendency, and the necessity of greater circumspection on his part, to silence them; that hoping such communications and admonitions would produce a circumspect and exemplary course of conduct on the part of their minister, and aware of the injurious consequences which might result from a public investigation, the elders and deacons had hitherto forborne to request such investigation ; that the continuation and extensive prevalence of the said reports, with ■^references to recent "instances of the inebriety of their minister, as well as a deep sense of their Christian obligations, the rules of the church then constrained the elders and deacons to the painful duty of soliciting- the investigation as early as might be practicable; that the standing and usefulness of their minister in the congregation, was already materially impaired, and the elders and deacons entertained strong .apprehensions that .unless the said reporto should be speedily silenced by the judicial determi

what they are thia caae-

The argument for the defendant in error ís¡ founded upon a supposition that the. defense, involves the decision, 0f a moral question, depending upon the different habits. and opinions of men.;: and if the conduct of the defendant, in error is censurable,, yet cognizance cannot be taken of it on any principle, known to. the. common law. "With a view to meet this.'1 argument, the. proceedings of the different, ecclesiastical tribunals, have been detailed;, exhibiting a standard of morality by which he has, agreed to he governed, and by which he ought, to be bound; and if it is not practicable to- afford complete, redress to the, plaintiffs in error* no difficulty is perceived in doing it,, so far as defeating the defendant in error in the present - suit will have that effect. Anything that is lawful may b,e. the subject of a contract, and any persons,, body politic or corporate,, may be parties to it, if capable of contracting. In the present case, the lawfulness of the subject and competency of the parties are not questioned. The only difficulty arises on the meaning of the contract. The call is according to the prescribed- form; and if the defendant, in error can re- . • T . cover m the present case, i can see, nothing to. prevent a recovery after accepting the call, in any case, and without eyer performing a single pastoral duty. By accepting the call, he-becomes the minister, and, according to the decisfon of‘ *the supreme, court, so long as that appellation can be applied to him, he is entitled to. his salary, • The consequence is, the plaintiffs, in error are deprived of all- the benefits they intended, to secure by the call, and the ‘defendant in error excused from all the duties he expected to perform. Thus, the incumbent is pensioned upon the congregation; and although he. does not perform pastoral duties, prevents the call and settlement of another, who might otherwise be, employed to perform them. The coy

Argumentthat question, answered.

Construction of the contract.

To the jurist and civilian, one of 'the most obvious and familiar rules in the" construction of contracts is, that it ' shall be according to the intention of the parties. In the present case, the call which is the covenant, "commences by reciting that “ Whereas the Reformed Protestant Dutch Church in the city of Albany is at present, destitute of the stated preaching of the word, -and the regular administration of the ordinances, and is desirous of obtaining .the means of grace, which God hath appointed for the salvation of sinners, through Jesus Christ -his "son ; and whereas the said church is well-satisfied of’the piety, gifts and qualifications of you, John Melancthon Bradford, -and hath good hope that your labor in the gospel will be attended with a blessing: - therefore, we, the 'minister, elders and deacons of the said church have resolved to call, and we -hereby Solemnly, and in the fear'of the Lord, do call you, the said John Melancthon Bradford, to be our pastor and teacher, to preach the word in truth and faithfulness, and to administer the holy sacraments agreeably to *the institutions of Christ, to maintain Christian discipline, to edify the congregation, and ¿especially the youth, by catechetical instructions, and as a faithful servant of Jesus Christ, to fulfill the whole Work of the gospel ministry agreeably to the word of God, and the excellent rules and constitution of our Reformed Dutch Church, established in the last national synod, held at Dordrecht, and ratified and explained by the ecclesiastical judicatory under which we-stand, and to which you,

It must be according to the intention of the parties.

Ordinary covenants contain only the stipulations of the parties. By the recital in the one under consideration, the object is distinctly declared. The destitute condition of the church is stated, the' desire of the church to remain no longer in that condition, and the confidence of the church in the qualifications of the defendant in error to satisfy that desire. The call then proceeds: “ To encourage you in the discharge of the duties in your important office, we promise, in the name of this church, all proper attention, love and obedience in the Lord; and to free you from worldly avocations, whilst you are dispensing spiritual blessing to us, we, the minister, elders and deacons of the said church, do-promise and oblige ourselves and our successors to pay to you the sum of $1500 yearly and every year, in quarterly payments, as long as you continue our minister in the said churchevidently showing the paramount object to be, the important duties of the ministry, and the salary as a subordinate consideration with the defendant, as well as the plaintiffs in error. The salary is not promised for the preaching only, but as an encouragement. The call provides for the preaching, but at the same time supposes an exalted devotion, that would be degraded by the promise of salary, as the only inducement. On what principle, then, either of law or reason, can the plaintiffs in error be required to pay, when the defendant has disqualified himself from the performance of every pastoral duty, and deprived them of. every benefit contemplated by the call?

Another view of the subject is naturally suggested. The call enumerates the various obligations which the defendant fin error came under by accepting it; and, among others, is that of remaining subordinate to the rules and constitution of the Beformed Dutch Church. By virtue of those rules and that constitution, the defendant in error was suspended from the office of the ministry, until he should give “evidence of repentance and reformation;” which, not being done, the pastoral connection subisting between him

The sentence of dissolution related back to the suspension.

The question in this case is, whether Mr. Bradford shall be allowed his salary from the time of suspension to that of dissolution by the ecclesiastical judicatory.

I agree with the gentleman from the first district, (Mr. „ ... ' Colden,) that the performance was a condition precedent to the payment of the salary; and, to my mind, there is very little difficulty in saying how far the defendant in error must show that he has performed. He has submitted himself to the ecclesiastical judicatories. The parties have chosen the arbitrators to decide between them; and must ' both be bound by the decision, as to all matters of faith and practice. These judicatories are the only tribunals which can act in those matters; and we are bound to presume that all on the part of the minister has been performed, till they have passed upon his conduct; and whether their decision be for or against him, it is conclusive. The condition is the performance of the ministerial duties. A court of law is shut out from all inquiry as to the morals or of the minister. This belongs to the other judicatories; and the inquiry has been there instituted, and Mr. Bradford’s failure in an essential condition of the contract has been pronounced and confirmed. If my view of this subject be correct, we are presented with an adjudicated failure of performance, by judges of the parties!, own choosing; and the compensation, of course, fails with it.

Performance was a condition precedent.

bound’by the decision °f tlie Gcclesiastipal judicatories,

The condition ance^miaisduties,

It is said, however, that performance of pastoral duty is not the question, but. that it is Mr. Bradford’s continuance as minister ; and that the salary must be paid during such

Gout [anQt (

But "the argument is, "that "he Still continued a minister, "that "is to say, he continued- so during'his suspension, with the Dutch "Church generally. It was the "same thing after the connection with the plaintiffs in error was dissolved. It is also true, "that the suspension did not dissolve the pastoral connection,- but the contract does-not refer-‘to this, any more than to the minister’s continuance in the "Dutch Church generally. His continuance in the ministry of the "particular church, by which "he had been called, was the object. Though his general -relation to 'the Dutch Church might continue, and his pastoral relation with the particular church, yet his ministry’to the latter could not be said "to continue, without his performing, or -at least being able and qualified to perform," the ordinary'duties-of a clergyman, "The pastoral relation had a 'technical con"tinuance, but nothing more. Had this not been finally dissolved, he would have returned to the particular church without any call; but during his suspension, he had no more connection with that church 'than with .any other. The ministry was his performing, or béing able to perform all the ministerial duties. It. is ntit material "to "inquire whether any provision is made by the rules and conStitu.tión of the church, 'for maintenance to the minister during •a state of temporary "disability. "This would doubtless be a matter of discretion, during a temporary .^suspension or disability, without the minister’s fault. But in no case, -"it appears to me, While suspended "from'his office, can he be said to continue in his office.

My opinion is, that the judgment of the couri."below should be reversed.

The defendant‘in-eryor on the’2d 0f December, 1820, "was'“ suspended from'the office of the

¡■Subject óf controversy.

By accepting the call set forth in the case, the defendant in error became bound to perform the services therein required of him, and became subject to the rules andconstitution of the Reformed Dutch Church, also mentioned in the nail, But admitting the defendant in error tb have been bound to perform the services designated in the call, it is ■contended that those services are not a condition precedent to the payment of the salary, inasmuch as the plaintiffs in error covenanted to pay as long as the defendant in error continued their minister.

t^fefendant in error,

The good sense of the contract appears to me to be a covenant on the part of the plaintiffs in error to pay the salary as long as the defendant in error continued . . .. .. . , minister, dispensing the spiritual blessings mentioned m the call; for the inducement of the contract to pay salary is stated in the call to be, “ to free him from worldly cares and avocations” whilst dispensing those blessings. If such is the sound construction of the contract, it amounts to a condition precedent, without the performance of which the defendant was not entitled to his salary. The case of Martyn v. Hinde, (Cowp 437,) has been properly relied on as fortifying this construction.

Covenant ¡a 33 Pth&Tefend^ in. error was minister in fact.

Marlyn v. Hinde, Cowp. 437.

In Thorp v. Thorp, (12 Mod. 460,) lord Holt says, “ Where one promise is the consideration of the other, and where the performance and not the promise is it, is to be gathered from the words and nature of the argument, and depends entirely thereuponand for the purpose of *reconciling a variance in the books, he puts the following case: “ If A covenant with B to serve him for a year, and B covenant with A to pay him ten pounds, there A shall maintain an action before any service; but if B had covenanted to pay ten pounds for the said service, there A could not maintain an action for the money before the service performed.

Thorp v. Thorp, 12 Mod. 460.

In looking at the call in this case, it is quite, apparent to

But if the instrument is to be regarded as containing mutual covenants, the cases of Boone v. Eyre, (1 H. Bl. 273 note a,) and The Duke of St. Albans v. Shore, (1 H. Bl. 270,) are authorities to show that a covenant which goes to the wk0ie consideration, is to be construed as a condition precedent.

Boone v. Eyre, and Duke of St. Albans v. Shore, 1 H. Bl. 273, 270.

How the contract of the defendant in error was, to dispense spiritual blessings in the manner mentioned in the call; and the sentence of the classis of Albany of the 2d of December, 1820, suspended him “ from the office of the ministry,” and hereby incapacitated him from exercising the ministerial functions.

This sentence, as is remarked by the chief justice, is equivalent to a refusal on his part to act, so far as he was . j . „ . incapacitated to act by the sentence; and a refusal to exercise the office of the ministry is a breach of the contract going to the whole consideration.

Sentence of suspensionwas equivalent to refusal to act.

I think the judgment of the supreme court ought to be reversed.

*Allen, Burt, Earll, Ellsworth, Hart, Jordan, Keyes, Livingston, McCall, McIntyre, Helson, Smith, Wooster and Wright, Senators, concurred.

For affirmance—Gardiner, Haight, Lake, Mallory, Ogden and Wilkeson, Senators.

Judgment reversed.