#### Otis Thompson *versus*The Catholic Congregational Society in Rehoboth.

An application to a minister of the gospel to join with his society in calling a mutual council to consider the expediency of dissolving his pastoral relation with the society, on account of alleged misconduct on his part, ought to state substantially the charges against him intended to be laid before the council.

If upon a regular application for such purpose, the minister declines signifying his assent or dissent until the society shall comply with unreasonable conditions proposed by him, his conduct will amount to an unreasonable refusal to join in calling a mutual council.

Where some of the charges made against a minister and laid before a council furnish ground for a compulsory dissolution of his contract with his society, and others do not, and the result of the council states that *several*of the charges were proved, but without specifying which, their recommendation of a dissolution of the contract can have no effect.

Parol evidence is not admissible in such case to show which charges the council considered to be proved.

An *ex parte*council should be composed of men who are presumed to be impartial and who have not prejudged the case :— so that where some of the members of a council, called by the society alone, had been members of a previous council, which had decided against the minister upon the same charges, a similar result of the *ex parte*council was held to be of no validity.

*166Assumpsit to recover a year’s salary, being 500 dolíais, ab leg®d to be due to the plaintiff for his services as the ordained minister of the Catholic Congregational Society in Réhoboth, from September *24,*1826, to September 24, 1827. Plea, the general issue. The cause was tried before *Morton*J.

The defendants admitted that the plaintiff was the ordained minister of the society until July 28, 1827, and contended that this connexion between them was regularly dissolved by the decision of an ecclesiastical council, the result of which was adopted by the society at a meeting on that day.

Various documents were given in evidence at the trial. One was a communication, dated June 14, 1827, from a committee of the society to the plaintiff, inviting him to join in calling a mutual council to consider the expediency of dissolving his pastoral relation with the society.

The plaintiff wrote a letter to the committee, dated June 15, in which he says, “it is out of my power to determine whether it would be proper for me to join in calling a mutual council for the purpose which you mention, until I shall receive an answer from the society to the following questions : — 1. Do the society mean to relinquish their defence, so far as respects my salary, in the action* now pending between me and them, and to acknowledge me as their minister, legally entitled to the stipulated salary : — 2. What are the charges and the specifications under them, which the society propose to lay before a mutual council for their examination. Unless the first question be answered in the affirmative, the calling of a council at this time seems premature at least, if not inconsistent.” With respect to the other question, he says, if the society have other charges and specifications than those “ which were exhibited at the last term of the Supreme Court, it is important that I should know whether they are of such a nature that it would be safe and proper to submit them to the examination of a body merely *ecclesiastical,*and vested with no authority either to compel the attendance of a witness or to put one on his oath, &c. When I shall receive an explicit and unequivocal answer to the above questions, I will endeavour, as soon as prac*167t-icable, to inform you whether I accept or decline the proposal you make of a mutual council.”

On the 26th of June the society voted to call a council, the plaintiff “ having virtually declined uniting with the church and society in calling a mutual council.”

A council was accordingly called, consisting of five ministers and four delegates. Divers charges against the plaintiff were laic before the council, some of which, if substantiated, would not furnish sufficient ground for dissolving his contract with the society. The council voted, 1. “ that *several*of the charges and specifications have been substantiated : — and 2. that these charges being so substantiated, they can entertain no hope that his ministry will be of any further use to this congregational society ; they therefore advise to the dissolution of his minis terial connexion with them,” &c.

The result of the council was accepted and adopted by the society July 28, 1827.

The plaintiff objected to the admission of the foregoing evidence, principally because he did not unreasonably refuse to join in a mutual council, and because the proceedings of the council do not show which charges were supported and which were not. But the objections were overruled.

The defendants offered to prove by the testimony of some of the members of the council, which charges were proved; but the evidence was rejected.

The plaintiff objected also to the competency and sufficiency of the evidence on the part of the defendants, on the ground that they selected as members of the council, individuals who were partial, prejudiced and unfriendly to the plaintiff, and who had in fact prejudged his case.

To show this, the plaintiff produced several pamphlets in which he and the Rev. Mr. Andros, a member of the council, had carried on a controversy respecting certain doctrines in theology. He also produced the result of a previous *ex parte*co< ncil called by the society in November, 1825. Three ministers, who were on this council, were likewise members of the council held in 1827. The plaintiff contended that many of the charges exhibited before both councils were the same, and that no member of the former council could be an impartial *168member of the latter. The first council declined investigating t^e charges, but decided in favor of the plaintiff’s dismission on the ground of his unjustifiable and oppressive discipline ir t|le the unhappy alienation of many persons in the church and society, and the consequent diminution of his usefulness as a minister, and the prospect that no good would result from his continuing to be the minister of this society.

The judge thinking this a proper question for the jury, submitted it to them ; but they not agreeing, the parties consented to submit it to the Court, if they should think it proper for them to decide it.

The defendants, in the course of the trial, offered in evidence the proceedings of the society at the meeting held July 28, 1827, in which they declare the connexion between them and the plaintiff to be dissolved for the same reasons which they had exhibited before the council of 1827 as charges against the plaintiff, and proposed to prove them to be true by parol evidence ; but this evidence was rejected.

If the proceedings relative to the last council, and the result of the council, were not competent evidence, and if the votes of the society declaring the dismission of the plaintiff and the parol evidence offered in support of them, were properly rejected, the defendants were to be defaulted, and judgment was to be entered for the plaintiff for a year’s salary. But if the result of the council, with the proceedings connected with it, was competent and sufficient evidence of the plaintiff’s dis-mission, the defendants were to be defaulted and judgment to be entered for the plaintiff for his salary up to July 28, 1827.

The cause was argued at this term by *L. Williams, Bassett*and Hunt, for the defendants, and by *W. Bay lies, Cobb*and *J). Cushman,*for the plaintiff.

*

 Reported in 5 Pick. 469.

The opinion of the Court was afterward drawn up by

Parker C. J.

We regret to find the controversy still open between these parties. It was confidently hoped, after the last decision, that an amicable termination of the relation between them would have taken place. No minister of the gospel can expect to administer successfully his sacred functions to a people who have signified and persevered in their dislike to Iris person and his doctrines to such a degree and in such a man*169ner as has been shown in this instance. Not that we should wish that a minister should abandon his charge and rights on slight or frivolous disagreements ; but where a settled hostility has existed for years, and the minister has been excluded from his pulpit and continues to preach to a few to entitle himself to recover his salary, rather than with an expectation of doing good, and where council after council, although their proceedings may be technically informal, have given their solemn advice in favor of a dissolution of the connexion, we think it better comports with the spirit of the gospel of peace that si: h advice should be followed upon reasonable compensation, than that a repetition of lawsuits between a minister and the people should be witnessed by the public in our courts of justice. But we are not an advising body. The parties put themselves upon the law, ai d we must declare it, with an equal view to the legal rights c f the parties.

It is somewhat surprising, that warned by the decision of this Court in the former action, there should not have been more attention to regularity in the subsequent proceedings which have been the subject of inquiry in the trial of this action.

In regard to the right to call an *ex parte*council, we think, that when asked to agree on a mutual council, the minister ought to have a general statement of the grounds and reasons of the call upon him ; not in a precise technical form, but substantially set forth so that he may exercise his judgment whether to unite in a council or not. For if the charges should be of a frivolous nature, he is not obliged to submit them to inquiry ; and if they are serious and weighty, he ought to have opportunity to offer a relinquishment of his office without such inquiry.

If the application to the plaintiff had been regular in this particular, we think his conditional answer would and ought to be taken to be a refusal, for he had no right to impose any conditions, and a jury, under such circumstances, would .probably find that his refusal was unreasonable.

But there is a fault in the result of the council, which deprives it of any legal effect. They have not made known what was the true ground of their decision. They find only, that some of the charges were proved, without specifying which *170of them. Now as some of the charges do not of themselves furnisli ground of compulsory removal, it may be, for aught the record shows, that these alone were proved. The results of ecclesiastical councils in relation to the dissolution of such contracts, are never binding and conclusive, unless assented to by the parties, until after they are sanctioned by legal adjudication in a court of law. It is therefore necessary that their proceedings should be so far formal, as to enable the Court to judge whether they have acted with some regard to the rights of the party accused. Their adjudication ought to show sufficient grounds to malee it legal and valid. In such a result as is now before us, how can we know whether any thing was proved which gave them authority to recommend a dismission, which should be obligatory ?

But there is another objection to the result, which we think is fatal. *Ex parte*councils should be composed of those who are presumed to be impartial and who have not prejudged the case. If there he a mutual council, no objections can be taken to the individuals composing it, unless some partiality can be proved. But when there is an *ex parte*council, it is especially important that all the members should be free from prepossession. Now it appears that three of the ministers of this council had been on a previous council, which had come to a result unfavorable to the plaintiff. The case on both hearings was substantially, if not in point of form, the same. How can we suppose that these gentlemen were not influenced by the former hearing and opinion ? It is contrary to the first principies of justice, that a man’s case should be tried by those who have already decided it against him. Without doubt these gentlemen believed they could act with impartiality and without reference to preconceived opinions. But the laws look to the common principles of action in mankind, and not to the extraordinary instances of magnanimity which may enable some few to rise above the common feelings and prejudices of their race.

' We think, for this cause, the result cannot be admitted to affect this trial. And for the above causes, according to the agreement of the parties, the defendants must be defaulted.