I dissent from that part of the opinion of the court which holds that the decree of the visitors should be set aside on the ground that the trustees as a corporation were not formally made a party to the proceedings before the visitors. It is immaterial whether or not the application of the trustees to. be permitted to appear as a party, and the refusal of the visitors, are a part of the record of the visitors, because the record, even if this application and this refusal be excluded from it, does not show that the trustees as a corporation were cited to appear, or did appear, in the proceedings. It is abundantly evident that Professor Smyth, as well as the complainants, was represented before the visitors by learned counsel, and that both the prosecution and the defence were conducted with great thoroughness and ability, so that justice does not require that the decree be set aside on the ground that the trustees were not made a party, unless, as strict matter of law, it was indispensably necessary *563to make them a party in order that the visitors might acquire jurisdiction to hear and determine the matter of the complaint. Professor Smyth in the complaint was charged with heterodoxy, if he was charged with anything that could justify the decree. It is conceded by the majority of the court that the visitors had original jurisdiction to hear and determine the complaint. The visitors have been made a corporation by the St. of 182-3, c. 50, passed on January 17, 1824, and by that act are empowered, in § 1, to “ do and perform all acts and things required of them by ” the statutes of the founders, and this court by the same act is authorized, in § 3, “to declare null and void any decree or sentence of the visitors ” which may be considered “ contrary to the statutes of the founders, and beyond the just limits of the power prescribed to them thereby.” Both the visitors and this court are acting under this special statute of 1823, c. 50. The question is whether there is anything in the associate statutes of the founders of the theological institution, subject to which Professor Smyth holds his office, that in a proceeding of this kind absolutely requires the trustees to be made a party.
In considering this, it is necessary to inquire particularly into the powers and duties of the visitors under the associate statutes. The act of the State of Massachusetts Bay, passed October 4, 1780, incorporating the Trustees of Phillips Academy in Andover, made its trustees the sole visitors, and prescribed that the number of the trustees should be not more than thirteen nor less than seven, that the principal instructor for the time being should be one of them, that a major part should be laymen and respectable freeholders, and also that a major part should consist of men not inhabitants of the town where the seminary was situated. St. 1780, c. 15, 5 Prov. Laws, (State ed.) 1418. No religious or theological test of any kind was prescribed as a qualification for the office of trustee.
By the original statutes of Phoebe Phillips and others who were the founders of the Theological Institution in Phillips Academy, and by the associate statutes of Moses Brown, William Bartlett, and John Norris, and by the additional statutes of the original founders, an entirely new visitatorial scheme was established for the theological institution. The associate statutes, subject to which Professor Smyth holds his office of Brown *564Professor of Ecclesiastical History, prescribed a creed of theological doctrine to be taught in the institution, and required every professor on the associate foundation, “ after a careful examination by the visitors with reference to his religious principles,” to “publicly make and subscribe a solemn declaration of his faith in divine revelation, and in the fundamental and distinguishing doctrines of the Gospel as expressed in the following creed,” etc., and then follows a long and carefully prepared creed.
Article 3 is as follows: “The preceding creed and declaration shall be repeated by every professor on this foundation at the expiration of every successive period of five years; and no man shall be continued a professor on said foundation who shall not continue to approve himself a man of sound and orthodox principles in divinity agreeably to the aforesaid creed.” According to Article 6, the professors are to be chosen by the trustees, and the “ choice presented to the visitors for their approbation,” and, “ if this choice be negatived, another election shall in like manner be presented, and, toties quoties, till an election be made which shall be approved by the visitors.” Article 12 is as follows: “ That the trust aforesaid may be always executed agreeably to the true intent of this our foundation, and that we may effectually guard the same in all future time against all perversion or the smallest avoidance of our true design, as herein expressed, we, the aforesaid founders, do hereby constitute a board of visitors to be, as in our place and stead, the guardians, overseers, and protectors of this our foundation. . . . And it is farther expressly provided, that the perpetual board of visitors first herein named shall consist of two clergymen and one layman, all of whom shall be men of distinguished talents and piety.” By Article 13 it was provided that no person should be eligible as a visitor under the age of forty years; and, with the exception of the original visitors, a visitor ceases to hold his office when he completes his seventieth year. By Article 14 the board was to meet every year at the aforesaid theological institution to execute the business of their appointment ; and “ also, upon emergencies, when called thereto, as hereinafter directed.” By Article 19 it was provided- that every visitor, before taking his seat at the board, should make and *565subscribe a declaration as follows: “ Approving the statutes of the aforesaid theological institution, and those of the associate founders, I solemnly declare, in the presence of God and of this board, that I will faithfully exert my abilities to carry into execution the statutes of the said founders, and to promote the great object of the institution.” Every visitor was also required to subscribe “ the same theological creed which every professor elect is required to subscribe, and a declaration of his faith in the same creed shall be repeated by him at every successive period of five years.”
The powers and duties of the board of visitors thus constituted and organized were set forth in Article 20, which is as follows: “ The power and duties of the board of visitors thus constituted and organized shall be as follows, namely: to visit the foundation once in every year, and at other times when regularly called thereto; to inquire into the state of this our fund, and the management of this foundation, with respect both to professors and students; to determine, interpret, and explain the statutes of this foundation in all cases brought before them in their judicial capacity; to redress grievances, both with respect to professors and students; to hear appeals from decisions of the board of trustees, and to remedy, upon complaint duly exhibited, in behalf of the said professors or students; to review and reverse any censure passed by said trustees upon any professor or student on this foundation; to declare void all rules and regulations made by the said trustees relative to this foundation which may be inconsistent with the original statutes thereof; to take care that the duties of every professor on this foundation be intelligibly and faithfully discharged, and to admonish or remove him either for misbehavior, heterodoxy, incapacity, or neglect of the duties of his office; to examine into the proficiency of the students, and to admonish, suspend, or deprive any student for negligence, contumacy, or any heinous crime committed against the laws of God or the statutes of this foundation ; and, in general, to see that our true intentions, as expressed in these our statutes, be faithfully executed, always administering justice impartially, and exercising the functions of their office in the fear of God, according to the said statutes, the constitution of this seminary, and the laws of the land.”
*566Article 22 is as follows: “ The visitors shall appoint a standing committee to ascertain the qualifications of applicants for the advantages of this foundation. Those whom they approve may be recommended for admission as resident applicants on trial for two months; and if at the expiration of this term the faculty approve them, they may be placed on the list of resident students till the next annual meeting of the visitors. And if, upon examination by the board of visitors, they be then approved, they shall be registered as associate students; but if not approved by the visitors, after careful examination and the best information respecting them, they shall be dismissed from the foundation.” Article 26 is as follows: “ Every annual meeting of the board of visitors shall be introduced with prayer, after which these statutes shall be read by the president.”
I do not propose to inquire how far Moses Brown and William Bartlett and John Norris in establishing these statutes adopted the original statutes of the institution established by Phoebe Phillips and others, or to discuss any differences that may be suggested between the original statutes of the institution as modified by the additional statutes of the original founders and the associate statutes. I assume, without considering it, that the Brown Professor of Ecclesiastical History, holding his office as I understand under the associate statutes, might be removed from his office by the trustees, acting under Article 14 of the original statutes of the theological institution, “ for gross neglect of duty, scandalous immorality, mental incapacity, or any other just and sufficient cause,” and that heterodoxy is a just and sufficient cause. Still it is evident that for the protection of the institution from heterodoxy Moses Brown and his associates relied mainly upon the board of visitors established by them. The board of visitors was to be composed ultimately of two clergymen and one layman of distinguished talents and piety, in the prime of life, who were to read or to listen to the reading of the statutes every year, and who, before taking their seat at the board, were required to declare their faith in the creed prescribed by these statutes, and to repeat this declaration of faith every five years. They were required to examine the persons proposed for professors, with reference to their religious principles, and to examine the applicants for admission as students, and to approve or reject both *567professors and students. The trustees might be of any or no theological belief, and a majority of them must be laymen, and no qualifications were required which would enable them to decide intelligently theological questions. It is manifest that the associate founders were unwilling to trust the management of their foundation on its theological side to the trustees. Accordingly, the associate statutes gave the visitors established by them not only general visitatorial powers, but special powers, both original and appellate, and it is in the exercise of one of these special powers that the visitors acted in the present case. No question arises in the case of the incidents of general visitatorial powers. So far as the visitors may attempt to supervise the action of the trustees, justice may require that the trustees should have notice and an opportunity to be heard. So far as the visitors are authorized “ to hear appeals from decisions of the board of trustees,” that board would be in a sense a party, as their record must be produced before the visitors, and as the trustees might be the prosecutors as well as judges, the trustees might have an interest in maintaining the propriety of their action.
But the duty imposed on the visitors “ to take care that the duties of every professor on this foundation be intelligibly and faithfully discharged, and to admonish or remove him, either for misbehavior, heterodoxy, incapacity, or neglect of the duties of his office,” as well as the duty “ to examine into the proficiency of the students, and to admonish, suspend, or deprive any student for negligence, contumacy, or any heinous crime committed against the laws of God or the statutes of this foundation,” is a duty directed, not against the trustees, but against the professors and students, and is one that must be performed by the visitors according to their own judgment, and not according to the judgment of the trustees. It is an original, and not a supervisory power. The complaint of Mr. Wellman and others against Professor Smyth, filed with the visitors, charged no maladministration on the part of the trustees ; and the conduct of the trustees was not in any way involved in the proceedings. It was the primary duty of the visitors to entertain the complaint, if it seemed to them to require consideration. The visitors, in determining the matter of the complaint, could render no decree *568or judgment against the trustees. If the trustees, as a corporation, had been cited to appear, it is difficult to see in what capacity they would appear in the proceedings, whether for the prosecution or the defence, or sometimes for one and sometimes for the other. If Professor Smyth had pleaded that he was guilty of the charges and specifications, could the trustees have pleaded that he was not guilty, or if he had pleaded that he was not guilty, could the trustees have pleaded that he was guilty ? If the trustees are made a party, what is or can be the issue tried between them and the complainants, or between them and Professor Smyth? Suppose Professor Smyth had admitted in evidence before the visitors that the doctrines he taught were inconsistent with the creed established by the associate founders in manner and form as charged, and had consented to be removed from his office, or had asked leave to resign his office, could the trustees have prevented it?
There may be some embarrassment on the part of the trustees after Professor Smyth has been removed from his office by the visitors pending an appeal to this court. If the court affirms the decree, then he is removed from office, as of the date of the original decree; if the complaint is dismissed, or the decree is set aside, then he remains a professor until he dies, resigns, or is removed from office by a new decree. But the status of Professor Smyth pending an appeal to this court, if he is removed by the visitors, is a consequence of the action of the visitors, and the embarrassment of the trustees arises not during the trial, but only after the visitors have determined the matter of the complaint. The relation of the trustees to Professor Smyth after the decree of the visitors pending an appeal to this court is the same, whether they have been admitted as a party to the original proceedings or not. The same embarrassment arises in every case where one body has the power of removing an officer and another body pays him his salary while he holds his office. It arises in most ecclesiastical trials. It arises in the case of the policemen of Boston appointed by the board of police, who may be removed by the board, but while they continue in office are paid by the city. It was never supposed that the city of Boston was a necessary party to a complaint against a policeman before the board of police. Ham v. Boston Board of Police, 142 Mass. *56990. In the present case the visitors are a special tribunal under the statutes of the associate founders and the statute of the Commonwealth for the trial of Professor Smyth on such a complaint as was made in this case. Professor Smyth had the rights of any incumbent of an office who can only be removed for cause, and these are defined in Murdock v. Phillips Academy, 12 Pick. 244, 262. The trustees were not the prosecutors. The members of the board of trustees, if they knew anything of the matters charged, could be called as witnesses, but the conduct of the trustees as a corporation was not involved in the proceedings, and the opinion of this corporation on the truth or falseness of the charges, or whether, if true, they constituted heterodoxy, could not lawfully be used to influence the judgment of the visitors. Even if the opinion of the trustees, which would regularly be shown by a vote, could be received for this purpose, it would be competent as evidence, but the competency of such evidence would not require that the trustees be made a- party. If this were an appeal from the decision of the trustees, the opinion of that board could not lawfully be used to affect the judgment of the visitors. This is the general rule in proceedings on appeal. “ They [the visitors] are bound, on appeal, to hear the cause de nova and without any regard to antecedent steps, except that the cause shall be regularly brought before them.” Murdock, appellant, 7 Pick. 303, 328, 329. A fortiori, when the visitors take original jurisdiction of a complaint, the opinion of the trustees who never heard the complaint cannot be admissible.
I think that the appeal cannot be disposed of on the ground that the trustees were not made a party to the proceedings before the visitors, and that it should be considered on its merits, so far as under the St. of 1823, c. 50, this court is authorized to consider it. I refrain from expressing any opinion on the merits, because there may be a new trial of the complaint by the visitors, and another appeal to this court.