Trs. of Andover Theological Seminary v. Visitors of Theological Inst.

• Decision Date: 19 September 1925
• Citation: 148 N.E. 900,253 Mass. 256
• Parties: TRUSTEES OF ANDOVER THEOLOGICAL SEMINARY v. VISITORS OF THEOLOGICAL INSTITUTION IN PHILLIPS ACADEMY IN ANDOVER (two cases). VISITORS OF THEOLOGICAL INSTITUTION IN PHILLIPS ACADEMY IN ANDOVER v. TRUSTEES OF ANDOVER THEOLOGICAL SEMINARY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

253 Mass. 256

148 N.E. 900

TRUSTEES OF ANDOVER THEOLOGICAL SEMINARY

v.VISITORS OF THEOLOGICAL INSTITUTION IN PHILLIPS ACADEMY IN ANDOVER (two cases).

VISITORS OF THEOLOGICAL INSTITUTION IN PHILLIPS ACADEMY IN ANDOVER

v.TRUSTEES OF ANDOVER THEOLOGICAL SEMINARY.

Supreme Judicial Court of Massachusetts, Middlesex.

Sept. 19, 1925.

Case Reserved from Supreme Judicial Court, Middlesex County.

Separate proceedings by the Trustees of Andover Theological Seminary against the Visitors of the Theological Institution in Phillips Academy in Andover and by the Visitors of the Theological Institution in Phillips Academy in Andover against the Trustees of Andover Theological Seminary, to ascertain legal force and effect of determination by visitors of plan for closer affiliation between Andover Theological Seminary and Harvard Divinity School. Proceedings reserved on pleadings, master's report, and exceptions thereto. Plan declared to be void, and Trustees and President and Fellows of Harvard College enjoined from further executing it.H. S. Davis, of Boston, for Trustees of Andover Theological seminary.

T. Weston, of Boston (H. B. Patrick, of Boston, on the brief), for Visitors of Theological Institution in Phillips Academy in Andover.

Roland Gray and A. A. Schaefer, both of Boston, for President and Fellows of Harvard College.

M. F. Weston, Asst. Atty. Gen., submitted the case without argument or brief.

RUGG, C. J.

These proceedings grow out of a plan for closer affiliation between Andover Theological Seminary and Harvard Divinity School, adopted in 1922. Although differing in form and details, the three proceedings in the main are directed to the same end, namely, the ascertainment of the true legal force and effect of a determination by the Visitors of the Andover Seminary that that plan for closer affiliation between the two institutions (1) is inconsistent with the ‘Associate Foundation Statutes' of the Andover Seminary and (2) thereby Andover Seminary will not be conducted in accordance with the principles of its foundation, concluding with the specific declaration that that plan is void. This determiantion is also termed a ‘decree.’ See Holcombe v. Creamer, 231 Mass. 99, 103, 104, 120 N. E. 354.

The cases are somewhat complicated. The arguments have taken a wide scope. The points involved are numerous. The discussion falls into five principal divisions:

First, the main design and purposes of Andover Theological Seminary and the restrictions of its founders.

Second, the powers of the visitors of the seminary.

Third, the validity fo the determination of the visitors touching the plan of the closer affiliation of the seminary with Harvard Divinity School.

Fourth, questions of evidence.

Fifth, form of procedure and relief to be afforded.

First. It is necessary to examine the history of the Andover Theological Seminary, the declarations of its founders so far as they are constituent elements of the seminary, and the donations and trusts on which it was founded. The salient facts in this connection are set forth at length in the pleadings and in the master's reports. They may be stated summarily so far as essential for this judgment. The dominant religious denomination in this commonwealth from colonial times to the beginning of the nineteenth century was the Congregational. The theological views of that denomination were known later as orthodox or trinitarian. By 1805 a wide doctrinal difference had developed within the churches of eastern New England and especially of Boston and vicinity between the orthodox or trinitarian Congregationalists on the one side and the liberal or unitarian Congregationalists on the other side, although the unitarian did not take on an organized denominational form until 1825. In 1805 Henry Ware, a liberal and later known as a unitarian, was elected professor of Divinity in Harvard College. These doctrinal differences between orthodox or trinitarians and liberals or unitarians and the election of Henry Ware as professor of Divinity in Harrvard were the causes of the founding of the theological school in Phillips Academy commonly called the Andover Seminary. In 1806 Eliphalet Pearson, the professor of Hebrew in Harvard, resigned. With others he became interested in a project to prepare men for the ministry at Phillips Academy in Andover under orthodox and trinitarian instruction. These efforts accomplished their purpose. The charter of Phillips Academy in Andover, founded by a donation made in 1778 for the general education of youth, and incorporated under the name, Trustees of Phillips Academy, by St. 1780, c. 15, was amended by St. 1807, c. 22, expressly enabling the trustees to receive and hold donations for the purposes of a theological institution. Thereafter in the same year three persons joined in making gifts to the trustees for the use and endowment of a ‘theological institutionin Phillips Academy.’ These gifts were upon the ‘express conditions * * * that the said institution * * * be accepted by the trustees * * * and * * * be forever conducted and governed by them, and their successors, in conformity to the following general principles and regulations,’ reserving the right to themselves during their lives to make additional regulations. Then follow 34 ‘articles,’ which contain amongst other matters minute directions as to the subjects to be taught and the religious beliefs to be entertained by teachers and to some extent by the students in the theological institution. This instrument of gift is called the ‘Constitution of the Theological Institution in Phillips Academy.’ It was accepted by the Trustees of Phillips Academy. In this ‘Constitution’ repeated emphasis is laid in various forms of words upon doctrines and names expressive of the fixed purpose that the theological seminary to be established was to be devoted exclusively to teaching in support of ‘orthodox’ ‘evangelical’ ‘trinitarian’ tenets, and in opposition to all denominations regarded as of a contrary nature. Further provisions of the ‘Constitution’ are that every professor in the seminary shall be ‘of the Protestant reformed religion, in communion with some Christian church of the Congregational or Presbyterian denomination. * * * A man of sound and orthodox principles in divinity, according to that form of sound words or system of evangelical doctrines, drawn from the Scriptures, and denominated the Westminster Assembly's Shorter Catechism.’ Every professor is also required on the day of his inauguration and in the presence of the trustees publicly to ‘make and subscribe a solemn declaration of his faith * * * in the fundamental and distinguishing doctrines of the gospel of Christ, as summarily expressed in the Westminster Assembly's Shorter Catechism: And he shall furthermore solemnly promise * * * that he will maintain and inculcate the Christian faith, as above expressed * * * and in opposition not only to atheists and infidels, but to Jews, Mohammedans, Arians, Pelagians, Antinomians, Arminians, Socinians, Unitarians and Universalists, and to all other heresies and errors, ancient and modern. * * * It is also required that this ‘declaration’ shall be repeated in the presence of the trustees by each professor at the expiration of every successive period of five years, and that no man shall be continued as a professor unless he is constantly steadfast in ‘sound and othodox principles in divinity, agreeably to the system of evangelical doctrines' of the said catechism. Any failure in these particulars requires his instant removal from the professorship. The trustees were given power to make additional regulations ‘not inconsistent with the regulations established by this Constitution * * * nor with the object of this institution.’

At about that time two groups developed among orthodox trinitarian Congregationalists, one known as ‘Old Calvinists' or ‘Moderate Calvinists' and the other as ‘New Calvinists' or ‘Consistent Calvinists' or ‘Hopkinsians.’ The persons primarily interested in founding the Theological Seminary in Phillips Academy belonged to the former group. Persons belonging to the latter group were planning to found a school for the preparation of men for the ministry to be located at Newbury. As a result of negotiations, these two bands of Congregationalists joined in favor of the ‘theological institutions in Phillips Academy’ The difficulty in effecting this combination lay in framing a creed, which, in spite of their doctrinal differences, shoudl be acceptable to both groups. The ‘Associate Creed,’ contained in the ‘Associate Statutes' (hereafter described) was adopted as a compromise. It was a statement upon which both groups of Calvinists or orthodox trinitarian Congregationalists could agree. It omits much which is in the Westminster Catechisms. It is framed in technical language, some of it from the Westminster Assembly's Shorter Catechism and some from other sources. It is unique as a creed. No other theological seminary and no church has precisely this creedal basis.

In carrying out the plan of compromise between these two groups of Calvinists of somewhat divergent doctrinal views, two instruments were presented to the trustees of Phillips Academy. One under date of March 21, 1808, was a deed of gift transferring a considerable sum of money to the trustees from three persons belonging to the ‘New Calvinists' or ‘Hopkinsians.’ This instrument is termed the ‘Associate Foundation’ and includes the ‘Associate Statutes.’ This gift was for the endowment of two professorships and ‘for the maintenance of such students in divinity as may be proper candidates for gratuitous support,’ the trust to be administered ‘agreealby to the following statutes.’ Then follow 27 articles which are called ‘Associate Statutes.’ One of these was the Andover Creed, being the statement of faith upon which both groups of trinitarian Congregationalists had agreed. Another article provided for the theological...