Who were the Congregational church, and who the society in Marshpee, in 1811?  A regularly gathered Congregational church, is composed of several persons associated by covenant or agreement of church fellowship, (9th Mass. 277.) and a church cannot exist for any legal purposes, except as connected with a congregation or some regularly constituted religious society. (16 Mass. 488.) Where there are no special powers given to the church by the Legislature, the church cannot contract with or settle a minister, but that power resides wholly in the parish, of which the members of the church, who are inhabitants, are a part. (9 Mass.  Reports, 277.  Burr vs.  First Parish in Sandwich.)

We have seen that there was no legal parish in Marshpee, in 1811, and therefore the Congregational church, if there were such then, had no power to settle Mr. Fish, even had they done so, which they did not.  A parish may elect a public teacher, and contract to support him, without the consent of the church, if he be ordained by a council invited by the parish; but in Mr. Fish’s case, he was ordained by the request and under the direction of the President and Corporation of Harvard College, the Trustees of the Williams fund, with the assent of the Overseers.  There is then no ground whatever for assuming that Mr. Fish ever was settled legally over a Congregational parish in Marshpee, so as to establish him a sole corporation, to hold the lands belonging to the Proprietors of Marshpee, under the dedication deed of 1783.  If that deed and the subsequent act of 1809, conveyed any thing, the conveyance was for the use of the inhabitants as a parsonage, there being no parish in Marshpee, distinct from the Plantation.  In such case, it would be held to be a grant to Marshpee, (that is the town,) for the use of its ministers, (14 Mass. 333.) The grant, therefore, could it be regarded as such, was to the whole Proprietors of Marshpee, and they must first settle a minister before he could claim the use of the grant as a minister of the parish.

Neither has Mr. Fish, even if he had been legally settled, any just right, under the deed of 1783, to take the whole parsonage, because that deed states the principal object of the sequestration of the land to be, for the important purpose of promoting the gospel in Marshpee, and merely referred to the only worship then known there, which was Congregational.  When Mr. Fish went there in 1811, there was a Baptist church, and they objected to his taking possession of the parsonage.

There is a case in point in the 13th Mass.  Rep. 190, which decides, that where the original Proprietors of a township appropriated a lot of land for a parsonage, and at the same time voted that they would endeavor that a Congregational minister should be settled in the township, such vote ought not to be construed to limit the benefit of the parsonage to a minister of the Congregational order, and that if the inhabitants of the parish should become Christians of any other Protestant sect, they would be entitled to the land, and that a Congregational society, incorporated as a full parish would have no right to the parsonage.  Neither can a parish convey a parsonage to a minister to be held by him in his personal right.  By this decision, the Baptist or Methodist church in Marshpee have as good claim to the parsonage as Mr. Fish has.