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Church law.
SUGGESTIONS
ON THE LAW
Protestant Episcopal Church
IN THE UNITED STATES OF AMERICA!
ITS SOURCES AND SCOPE
BY
JOHN W. ANDREWS.
T. W H I T T A K E R
t^^ TOO
AC,
13,7-i^
V
Press of
Hann & Adair,
Columbus. O.
PREFACE.
This book, as its title indicates, does not pro-
fess to be an exhaustive treatise upon the law
of the Protestant Episcopal Church in the
United States. It discusses simply the method
of ascertaining such law, and some of its most
important principles, with suggestions as to its
origin, and the extent of its jurisdiction. The
valuable work of Judge Hoffman, on the "Law
of the Church, " being out of print, and not
within reach of the public generally, it has been
deemed proper to quote in the Appendix such
parts of it as bear directly upon the points under
discussion, and especially in cases in which the
author is constrained to differ from so eminent
an authority. The reader will find also, princi-
pally in the Appendix, extracts from the works
of Bishop Hopkins, Dr. Hawks, Dr. F. Vin-
PREFACE.
ton, and others, with some original letters and
documents, in whole or in part, that relate to
topics treated of: so that he will have in his
hands the means of correcting any errors into
which the author may have fallen, and to come
to his conclusions the better, after consulting
these leading authorities.
J. W. A.
TABU: OF CONTENTS.
CHAPTER I.— (PAGES 1-48.)
PAGE.
Relations of the Colonial Churches to the Church of England . . i
English decisions touching ecclesiastical law in a colony 2
Weight of American authority 4
What was adopted by the Colonial Churches 5
Their rights as to English law 5
Effect of the American Revolution 6
Election of Bishops 6
Unity with the Primitive Church not affected 7
How far English law in force 8
Common Law not in force until adopted 9
Authorities 9
Decisions of the Supreme Court of the United States 9
Foreign ecclesiastical law not in force until adopted 11
Authorities — English and American 11
Preliminary steps towards a union as a National Church 21
Constitution framed 26
Law of the New Organization 31
Book of Common Prayer 35
Meaning of the term "discipline," and of the phrase "any es-
sential point of doctrine, discipline, or worship," in the
Preface to the Book of Common Prayer 36
Judge Hoffman's view 36
Express assent of the Church to a law, essential 46
Relation of Bishops to legislation 47
Resources of foreign law all within reach 47
Summary 48
TABLE OF CONTENTS.
CHAPTER II.— (pages 49-62.)
PAGE.
Objects of the Constitution as stated by its framers 50
Powers of the General Convention under it 52
Relations to the Dioceses 54
Their jurisdiction 55
The Church a federal union 56
Freeman's definition 56
Power of the General Convention to enact canons 159
Constitutional limitations of such power 59
CHAPTER III.— (pages 63-72.)
Name of the Church 63
Its significance 63 '
Protestantism 64
EpiscopOjCy .... 66
Church 66
Meaning of these terms 66
Representation of Dioceses in the General Convention 66
Judicial power and its limitations 69
Court of Appeal 69
Relation of courts to the faith' of the Church »'••■« 7°
House of Bishops as a Court of Appeal ' 72"
APPENDIXES.— (pages 73-142.)
Appendix A. 73
Appendix B 83
Appendix C 97
Appendix D 103
Appendix E 117
Appendix F I2I
Constitution of June 23,. 1786 125
Constitution of August 8, 1789 127
Constitution of October 2, 1789 131
The existing Constitution 137
SUGGESTIONS ON
CHURCH LAW.
CHAPTER I.
The American Revolution found the Church existing
in all the colonies, but it was everywhere weak, and
nowhere self-sustaining, unless in the cities of New
York, Boston, and Philadelphia, and in the states of
Maryland and Virginia, in which states it was estab-
lished by law. The Book of Common Prayer, to-
gether with the offices and articles of the Church of
England, were, from the first, in use in the colonial
churches; and thus the essential principles of the doc-
trine, discipline, and worship of the Church of Eng-
land, were adopted by them. Recognizing in ac-
cordance with primitive order, and the principles of
discipline thus adopted, the need of Episcopal over-
sight and service, the colonial churches from an early
day, and down to the time of the Revolution, availed
themselves voluntarily of the Episcopal supervision of
the bishops of London, which was kindly given at
their earnest request ; and the informal Episcopate
thus established, was the principal, if nof the sole
bond of union among these colonial churches.
Relations
of the Col-
onial
Churches
to the
Church of
England,
CHURCH LAW.
The legal status of these churches, excepting as
modified in some of the colonies by civil enactments,
was according to the decisions of the English courts,
that of entire independence.
In the case of Long vs. The Bishop of Capetown,
I Moore, N. S. 411, the language of the Court is as
follows :
"The Church of England in the colonies which
have an established Legislature, and no church estab-
lished by law, is to be regarded in the light of a
voluntary association, in the same situation with any
other religious body, in no better, but in no worse
position, and the members may adopt, as the mem-
bers of any other communion may adopt, rules for
enforcing discipline within their body, which will be
binding on those who expressly or by implication
have assented to them. It may be further laid down
that, when any religious or other lawful association
has not only agreed on the terms of its union, but
has also constituted a tribunal to determine whether
the rules of the association have been violated by
any of its members or not, and what shall be the
consequence of such violation, the decision of such
tribunal will be binding, when it has acted within the
scope of its authority, has observed such forms as
the rules require, if any forms be prescribed, and if
not, has proceeded in a manner consonant with the
principles of justice.
In such cases the tribunals so constituted are not
in any sense courts; they derive no authority from the
Crown ; they have no power of their own to enforce
their sentences; they must apply for that purpose to
CHURCH LAW.
the courts established by law ; and such courts will
give effect to their decisions, as they give effect to
the decisions of arbitrators, whose jurisdiction rests
entirely upon the agreement of the parties."
/;/ re The Lord Bishop of Natal, 3 Moore N. S. ,
page 152, the Court says:
" It cannot be said that any ecclesiastical tribunal
or jurisdiction is required in any colony or settlement
where there is no established Church ; and in the case
of a settled colony the Ecclesiastical Law of England
cannot, for the same reason, be treated as part of the
law which the settlers carried with them from the
mother country."
If these decisions of the Privy Council be recog-
nized as sound law, English P^cclesiastical Law could
have been of no force in a colonial Church in this
country, until adopted by it, and such adoption
could only be by express enactment, or by general
usage for so long a period of time as to ripen
into law.
See also. Bishop of Natal vs. Gladstone, L. R.,
3 Equity Cases, before the Master of the Rolls, page
I, Merrimajivs. Williams L. R. 7 Appeal Cases, 509.
Sir R. Phillemore's Ecclesiastical Latu, page 2244.
The fair construction of the authorities, both Eng-
lish and American, shows that the essential points
of the doctrine, discipline, and worship, that is, the
essential principles of the constitution of the Church
of England, those that are not local, limited to this
or that country, but universal wherever the Church
of England exists, those which the colonial churches
in this country brought with them with the Book of
CHURCH LA W.
Common Prayer, and from which the Church in this
country has never departed, are binding upon the
members of the Church of England in a colony, on
the ground of their having assented to and adopted
them, by becoming a branch of such Church.
But so far as ecclesiastical law is concerned, as to
which different localities may differ consistently with
true loyalty to these essential principles, the members
of the Church of England in a colony that has an
established legislature and no established Church are,
according to the English authorities, placed on the
footing of voluntary religious societies, and may
adopt their own rules precisely as may the members
of any other religious body; and any tribunal of
such colonial church, in the exercise of its authority,
must proceed in accordance with such rules, or if no
such rules have been adopted, then in a manner con-
sonant with the principles of justice; and the civil
courts will carry into effect the decisions of a tribunal
so proceeding, if they shall be found to be consistent
with the essential principles of the constitution of
the Church.
The colonial churches having, brought with them
and voluntarily adopted the essential principles of
the doctrine, discipline, and worship of the Church
of England, and thus preserved their continuity
with that church and through it, with the Primi-
tive Church, established from time to time such
rules and usages as, in their judgment, were, in
their circumstances, best suited for properly main-
taining such doctrine, discipline, and worship. In
establishing such rules, it has generally been sup-
CHURCH LAW.
posed in this country, and such undoubtedly has
been the current of American authority, although
not fully acquiesced in, that the colonial churches
respectively had the right, in analogy, to the
principle of law universally recognized by the
civil departments of the colonial governments and
their courts of justice, to avail themselves of any
of the laws of the English Church, that they
should, from experience, find to be suited to their
needs, and should choose, therefore, to adopt; but
they do not seem to have availed themselves, to any
considerable extent, of this privilege. In adopting the
English Book of Common Prayer, with the articles of
faith and offices, rites, and ceremonies connected there-
with, its definitions and terminology, they recognized
the principle of a common liturgical public worship,
the three orders of the ministry, with their inher-
ent spiritual prerogatives and relationships, and the
essential principles, forms, and usages which together
constitute the peculiar discipline of the Church of
England, and are elements of continuity with the
Primitive Church. The precise significance of the
word "discipline" will be considered hereafter, when
it will be seen that a difference of opinion, touching
its meaning, has led to widely different conclusions
as to the sources and scope of our ecclesiastical law.
Such was the condition of the colonial churches
at the date of the Declaration of Independence. They
were in full accord with the Church of P^ngland, in all
essential points of doctrine, discipline, and worship,
and thus, while entirely independent of her, were sub-
stantially identified with her.
CHURCH LA W.
The Revolution came, and with it national inde-
pendence, and this change in political relations in-
volved the necessity of changes in the Prayer Book,
while the supervision and services of the bishops of
London were no longer admissible: but in all other
respects the colonial churches maintained their iden-
tity, having the same congregations and ministers,
the same church edifices and property,* the same doc-
trine, discipline and worship, rites and ceremonies,
after the Revolution, as before. The need of bishops
was, of course, at once felt, as all Episcopal supervision
of the colonial churches was at an end, and such su-
pervision was then, as it is now, deemed essential to
the well-being of a church. Thereupon, the diocese
of Connecticut elected the Rev. Samuel Seabury as
their bishop, who was consecrated as such in Scot-
land, in 1784. and in like manner the Rev. William
White, and Rev. Samuel Provoost, were elected
bishops of the dioceses of Pennsylvania and New York,
respectively, and consecrated as such, in P^ngland,
in 1787.
It will be observed that these bishops were elected
and consecrated before the adoption of the constitu-
tion of the Protestant Episcopal Church in the United
States, but each colonial church being independent of
all foreign control, political or otherwise, and having
made its own by adoption, the doctrine, discipline,
and worship of the mother church, had ample powers
for completing and perfecting its organization, and
these bishops, when so elected and consecrated, were
'"See Terrett vs. Taylor, 9 Cranch 43.
CHURCH LA W.
clothed with those powers and prerogatives that per-
tain to and are inherent in the high office of Bishop
in the Church of God. The discipline of the Church
of England, adopted by the colonial churches, amply
justified these proceedings, and indicated with suffi-
cient distinctness, the powers and duties of the new
bishops, until they should be prescribed and regulated
by such appropriate legislation as the colonial churches
respectively, or united as a national Church, should
adopt.
The unity of these churches with the Church of
England, and the Primitive Church, thus survived
the Revolution intact, and those spiritual elements
of its constitution and government which have their
sources in no human legislation, and with which such
legislation has no right to intermeddle any further
than to regulate their exercise, were found, as they
must always be found, adequate to all emergencies.
Constitutions and canons that are framed for the pur-
pose of maintaining this unity, whether by means of
a national union of dioceses, or in such dioceses sep-
arately, rest upon a wholly different basis, and may
and do differ radically from each other, and undergo
material changes from age to age, without impairing
this unity with the Universal Church.
In reference to this point. Dr. Hawkes, in his Ec-
clesiastical Contributions, page 3, says:
"The union of the churches^, in any country,
"must be the act of man, for man must make the
"regulations by which different Christian churches
" consent to adopt one system of government or polity.
"The other, unity, depends on an adherence to what
Unity tuith
Primitive
Chzirch
not affect-
ed.
CHURCH LAW.
' ' God has declared to be his truth, and no poHtical
" convulsions can alter that truth, or release man from
' ' his obligations to obey it ; and thus the Revolution not
"only could not, by any necessary consequence, de-
"stroy the unity existing among the churthes, in the
"several colonies on this continent; but it did not dis-
' ' turb it as between them and the church of the mother
"country, from which, politically, they were just sev-
" ered. The Church of England and the Protestant
"Episcopal Church in the United States, are now
"both in the unity of the CathoHc Church,
"though under different systems of polity."
The rule of law referred to as recognized by the
civil authorities and courts of the colonies from their
earliest settlement, as well as by those of most of the
states of the Union, in reference to English law and
its precise relations to these colonies and states, is
thus stated by Justice Story, in i Story on the Consti-
tution, 4th Ed. Sec. 157:
"Ever since the settlement of the colonies, the
" universal principle has been, that the Common Law
" is our birthright and inheritance, and that our ances-
"tors brought hither with them, upon their emigra-
" tion, all of it which was applicable to their 'situation.
"The whole structure of our present jurisprudence
" stands upon the original foundation of the Common
"Law."
In the case of Van Ness vs. Packard, 2 Peters,
137-1/I4, the same Justice, in giving the opinion of
the Supreme Court, says:
' ' The Common Law of England is not to be
" taken, in all respects, to be that of America. Our
CHURCH LA W.
' ' ancestors brought with them its general principles,
" and claimed it as their birthright; but they brought
' ' with them and adopted only that portion which was
"'applicable to their situation."
Chancellor Kent says: i Kent's Commentaries 473,
note b. :
"The Congress of 1774 claimed to be entitled to
' the benefit not only of the Common Law of England
' but of such of the English statutes as existed at the
* time of their colonization, and which they had, by
' experience, respectively found to be applicable
' to their several local and other circumstances —
' (Journals of Congress, October 14, 1774). This was
' only declaratory of the principle in the English Law,
' that English subjects going to a new and uninhabited
' country, carry with them, as their birthright, the
' laws of England existing when the colonization
' takes place."
In Wheaton vs. Peters^ 8 Peters 591, Justice
McLean says:
"It is insisted that our ancestors, when they
"migrated to this country, brought with them the
" English Common Law, as a part of their heritage.
"That this was the case, to a limited extent, is admit-
" ted. No one will contend, that the Common Law,
"as it existed in England, has ever been in force in
"all its provisions, in any state in this Union. It
" was adopted so far only as its principles were suited
"to the condition of the colonies."
In the case of the United States vs. Wormll, 2 Dal.
las 384, Chase, J., after deciding that, in his opinion,
the United States has no Common Law, says:
10
CHURCH LAW.
"If indeed the United States can be supposed,
for a moment, to have a Common Law, it must, I
presume, be that of England, and yet it is impos-
sible to trace when and how the system was
adopted or introduced. With respect to the indi-
vidual states, the difficulty does not occur. When
the American colonies were first settled by our an-
cestors, it was held, as well by the settlers as the
judges and lawyers of England, that they brought
hither, as a birthright and inheritance so much of
the Common Law, as was applicable to their situ-
ation and circumstances. But each colony Judged
for itself zvhat parts of the Common Law zvere appli-
cable to its new condition, and in various modes, by
legislative acts, by judicial decisions, or by con-
stant usage, adopted some parts and rejected others.
Hence, he who shall travel through the different
states will soon discover that the whole of the
Common Law of England has been nowhere intro-
duced ; that some states have rejected what others
have adopted, and that there is, in short, a great
and essential diversity in the subjects to which the
Common Law is applied, as well as in the extent
of its application. The Common Law, therefore, of
one state, is not the Common Law of another; but
the Common Law of England is the law of each
state, so far as each state has adopted it."
If this rule of courts of justice and civil admin-
istration is, by analogy, applicable to ecclesiastical
law, the colonial churches, had, undoubtedly, the
right to appropriate to their own uses the laws
of the English Church, so far as they should,
CHURCH LA W.
II
from experience, find that they needed them, and
should adopt them, or in other words, so far as,
in their judgment, they were applicable to their cir-
cumstances; and of such applicability they were ex-
clusively the judges.
In addition to the argument drawn by analogy
from the decisions of the courts and civil authorities,
the history of the ecclesiastical law of England fully
sustains the same position as to the absolute inde-
pendence of the colonial churches, of all foreign
law; that is, of all human law which they had not
affirmatively enacted or adopted. By the Act of
Parliament of 25th Henry VIII., Chapter 21, it is
enacted as follows:
' * The realm of England hath been and is free
"from subjection to any man's laws, but only such
"as have been devised, made, and obtained within
"this realm, for the wealth of the same, or to such
"other as, by sufferance of the king, the people of
"this realm have taken by their own consent to be
"used among them, and have bound themselves by
"long use and custom to the observance of the
"same, not as to the observance of any foreign
"prince, potentate, or prelate, but as to the accus-
" tomed and ancient laws of this realm, originally
"established as laws of the same, by the said suffer-
"ance, consent, and custom, and none otherwise."
The principle of this noble declaratory statute was,
in all respects, as applicable to the colonial churches
as to the Church of England, and it is equally appli-
cable to the Protestant Episcopal Church in the
United States.
Foreign
la%v not in
force until
adopted.
Authori-
ties.
12
CHURCH LAW.
In reference to this point, Chief Justice Hale, as
cited by Lord Hardwicke, 2 Atkyns, 669, says:
" I conceive that when Christianity was first intro-
' duced into this land, it came not without some form
' of external ecclesiastical discipline or coercion,
' though at first it entered into the world without
'it; but that external discipline could not bind any
' man to submit to it, but either by force of the
' supreme civil power, where the governors received
' it, or by the voluntary submission of the particu-
lar persons that did receive it; if the former, then
' it was the civil power of the kingdom which gave
' that form of ecclesiastical discipline its life ; if the
' latter, it was but a voluntary pact or submission
' which could not give it power longer than the party
' submitting, pleased ; and these the king allowed,
'connived at and did not prohibit; and thus, by
' degrees, introduced a custom whereby it became
' equal to other customs and usages."
In Cozvdry s Case, 5 Coke's Rep., 33, Lord
Coke says: >
"So, albeit the kings of England derived their
" ecclesiastical laws from others, yet so many as were
"proved, approved, and allowed herein, and with a
"general consent, are aptly and rightly called the
" king's ecclesiastical laws of England."
In Evans vs. Askivith, Wm. Jones' Rep., 160,
it was declared, that "no foreign canons bind here,
except such as have been received, but, being re-
ceived, they become part of our laws." See Queen
vs. Mills, 10 Clarke & Finnelly, 678; Hoffman's Law
of the Church, p. 46.
CHURCH LA W.
rj
The declaration of fundamental rights issued by
the first convention of the Church of Maryland, as-
serts the same independence of all foreign authority,
as the undoubted right of the Church of
in these striking words:
"We consider it as the undoubted
" Protestant Episcopal Church, in commo
"Christian churches, under the Americran .Revo
"lution, to complete and preserve herself "^^ ^n
"entire church, agreeable to her ancient usa
" professions, and to have the full enjoyment
"exercise of those purely spiritual powers which are
"essential to the being of every church or congre-
" gation, and which, being derived only from Christ
" and his Apostles, are to be maintained independent
" of every foreign or other jurisdiction, so far as may
"be consistent with the civil rights of society."
If no papal canon or decretal was ever binding
on the English Church or people, but by their own
consent, even during the darkest period of papal
supremacy, it can hardly be claimed that this same
English Church and people could arbitrarily impose
their laws upon independent colonial churches.
Dr. Francis Vinton, in his Manual on Canon Law,
p. 20, thus expresses himself on this point:
"Both churches (that is, the Church of England
"and ours) are amenable to the body of canon law,
" when it is not superseded by domestic law. As
"the ante-Reformation or Foreign Law, imposed
"by Rome is to the English Church, so is the
" English Canon Law to the Church in the United
"States. In other words, the Catholic Code is ab-
14
CHURCH LA W.
' solutely obligatory, where no rule is provided.
'The foreign code of laws, e. g., the English Ec-
' clesiastical Laws in the United States, is obligatory
' with two restraints: (i.) that they are adapted to
'the Constitution of this Church, and so are proper;
'(2.) and not contradicted by the laws of the land
'and of this Church, and so are legal rules. 25
' Henry VIII., Chapter 21, Gibson's Codex, Introd.
' Dis., pp. 2j, 28." He then adds:
"Question: Is every member of the Church
' bound to obey the canons of the Catholic Code
' and of the English Church, with the restraints
' above named? "
"Answer: Yes; on the footing of consent, usage,
' and custom in this Church, or pis 7ion scriptum
' ecclcsiasticiini. Gibson's Codex. Introd. Dis., 28.
'Grey's Eccl. Law, pp. 9, 10."
Dr. Vinton thus admits that English ecclesiastical
law is, so far as we are concerned, foreign law, and
that its relation to the Church in this country is pre-
cisely the same as that of the ante-Reformation law
imposed by Rome to the English Church, and is only
obligatory, on "the footing of consent, usage, and
custom, in this Church."
In order, therefore, to ascertain precisely what
laws of the English Church were binding upon a col-
onial -church, at the time of the Revolution, we have
only to ascertain which of them had been adopted by
such church, by "consent, usage, or custom."
The Protestant Episcopal Church in the United
States of America, however, it must be carefully ob-
served, was not organized until the year 1789, and, of
CHURCH LA W.
15
course, the relations of these foreign laws to it, could
not depend upon its usage and custom, but any bind-
ing obligation that they may have upon this Church
must rest upon wholly different grounds, and will be
considered hereafter.
To the same effect Dr. Hawkes, in his Ecclesiasti-
cal Contributions, p. 265, says:
"The opinions which were entertained in the
" mother country, and the decisions which had been
" made on matters of ecclesiastical law or usage, up to
" the severance of these colonies by the Revolution,
"were, as far as applicable, held to be the guide of the
"Church of England here, and, although the inde-
" pendence of the United States dissolved the con-
" nection, it evidently did not destroy the prevailing
" opinions among churchmen, as to matters and usages
" touching the Church. To the Common and Canon
" Law of England we must therefore look, if we
" would fully understand the origin of much of the law
" of our own church."
So, also, Bishop Hopkins, in his very valuable
work, "The Primitive Church Compared," etc. , pp.
358,359, after quoting some passages of the consecra-
tion service of bishops, says:
"All the above passages are retained from the
" ordinal of the Church of England; they were a part
" of the ecclesiastical system of our church, previous
" to the Revolution; the colonies were, at that time,
" under the spiritual jurisdiction of the Bishop of Lon-
" don, and whatever construction was then put upon
" the office of a bishop, and the promise of obedience
"to him, in this country, continues to be the law of
i6
CHURCH LAW.
"our church to this day; those points alone excepted,
" in which our American church has thought fit to
"alter it by some new provision.
" This is the well-known principle of our civil law.
" Hence, in almost every part of the Union , there are
"parts of the English Common and statute law in
" force to the present hour; all that had been received
" and acted upon in this country previous to the Revo-
' ' lution, being considered as a part of our system, in no
* ' way affected by the separation from the mother coun-
* ' try. (See the case of Terrett et. al. vs. Taylor ct. al.
" 9 Cranch, 43. ) And in all the Federal courts, the
" whole science of jurisprudence is still interpreted ac-
" cording to the English rule, and their law books are
" read as authority.
" Marvelous it is, surely, that the laws of the states
"should keep their ancient connection with so much
"constancy; while yet the principles of the Church
"must be cut loose from all their ties, and be sent
" adrift to discover new interpretations and definitions
"of old terms, as if the phrases bishop, presbyter,
"and ordination vows, had suddenly lost all meaning
" and ceased to signify, at the Revolution, what they
" had always signified before."
On page 361, Idem., Bishop Hopkins says:
"The bishops of London were our diocesans;
"and the uninterrupted, although voluntary, submis-
" sion of our congregations, will remain a perpetual
"proof of their mild and paternal government."
Bishop Hopkins was an able lawyer, as well as a
wise bishop; and these quotations attest the accu-
racy and thoroughness of his legal knowledge and
CHURCH LAW.
17
conclusions, as to the relations which the colonial
churches, after the Revolution, sustained to the dis-
cipline of the Church of England, and its ecclesias-
tical law. He evidently considered no foreign law
as binding here, until by usage and consent, or as he
expresses it, by having "been received and acted
upon," it had become American law and was thus in
no way affected by the separation from the mother
country. It was the right of a colony, or of a colo-
nial church, to avail itself of any English law that it
should deem applicable to its situation ; but there
was no obligation upon it to do so; and much con-
fusion in the discussion of this question as to the pre-
cise scope and force of English law in this country
has arisen from the fact that this distinction between
the right and obligation to use it has been frequently
overlooked, as has also the further fact that, as the
Protestant Episcopal Church in the United States
was not organized until October, 1789, the Revolution
and the changes resulting from it, could have had no
immediate effect upon such Church, but only upon
the colonial churches, whose legal status must there-
fore be considered separately from that of the Na-
tional Church.
Judge Hoffman, in his able work upon the Law
of the Church, under the heading " Of the Church of
England in the Colonies," among other things, says:
"It is an admitted maxim that the great body of
"the Common Law of England, and of its statute
' ' law, so far as adapted to the situation of the colo-
" nies, was brought to this land from the mother
"country, and formed the basis of colonial law.
i8
CHURCH LAW.
"Now this great principle, which pervaded every
" colony founded by Englishmen, prevailed, in a par-
" ticular sphere, wherever a church upon the basis of
"that of England was established. They who be-
" longed to such a Church were members of that of
"England, at the time of their arrival, or voluntarily
"joined it here. The former brought with them,
"the latter adopted, the doctrine and discipline, the
" rules and order of the English Church. Unde-
" niable as this proposition seems to be, yet it is nec-
" essary, by a fuller statement, to guard it from mis-
" take. The proposition is not, that the Church as
"an establishment, with the statutes of supremacy
" and uniformity, formed part of the law of the colo-
" nies, where charters did not otherwise provide; but
"the proposition is, that all members of the Church
"of England in the colonies were subject to the
"ecclesiastical law of England, ex,cept where it was
" expressly altered or necessarily inapplicable."
Under this language of Judge Hoffman, submis-
sion to English law would seem to be, not a matter
of consent and usage, and thereby of adoption as
American law, but a matter of compulsion, except
where, from necessity, it was inapplicable, or had
been expressly altered. If this be his meaning, there
can be no doubt that this proposition of Judge Hoff-
man reverses the rule hereinbefore stated, and de-
clares that English law, whether accepted and
adopted by the colonial churches or not was, as a
general rule, binding upon them. A careful consid-
eration will hereafter be given to his language and
the positions which he assumes in reference to the
CHURCH LAW.
^9
scope and force of English law in this country, when
we come to deal specially with the law governing the
Protestant Episcopal Church in the United States.
It may then be assumed as settled by the whole cur-
rent of authority that, in the colonies and colonial
churches, as in England and the Church of England,
neither the Common nor any foreign law was ever
in force, until adopted by their own consent. In
civil affairs, the needs of a colony would lead at
once to the adoption of the Common Law upon
a large scale, inasmuch as the rights of property
and person demanded immediate protection, and
the Common Law, with its vast treasures of wisdom
and learning, and with which they were familiar, and
to which they were deeply attached, was adequate
and at hand for such protection.
Chancellor Kent says: "Although the great body
" of the Common Law consists of a collection ot
"principles, to be found in the opinions of sages,
"or deduced from universal or immemorial usage,
"and receiving progressively the sanction of the
"courts, it is nevertheless true, that the Common
" Law, so far as applicable to our situation and gov-
" ernment, has been recognized and adopted as an
"entire system by the constitutions of New York,
" Massachusetts, New Jersey, and Maryland. It has
" been assumed by the courts of justice, or declared
" by statute, with the like qualifications, as the law
"of the land in every state. It was imported by
"our colonial ancestors as far as it was applicable,
" and was sanctioned by royal charters and colonial
"statutes. It is also the established doctrine, that
20
CHURCH LA IV.
" English statutes passed before the emigration of our
" ancestors, applicable to our situation, and in amend-
" ment of the law, constitute a part of the com-
" mon law of this country." — i Kent's Com., p. 472.
It was to meet the pressing needs of a growing
civilization on this continent that the Common Law,
that had gradually been developed out of just such
needs in England for a thousand years, was adopted
by these colonies and states as their undoubted
legal right.
The colonial churches met their needs in precisely
the same way, and adopted the Book of Common
Prayer of the Church of England, with its offices,
rites, and ceremonies, and made it, and the doctrine,
discipline, and worship expressed or implied in it,
their own, while in the interior arrangement of their
Church edifices, with chancel, pulpit, and reading desk,
and the use of the surplice, which was the clerical
dress of the English parish clergy in public worship,
they followed English law or usage ; but beyond this
they do not seem to have needed and therefore did
not borrow anything from the laws or usages of the
Church of England. Although they may have had
the right to do so, they evidently considered the
great mass of English canons and ecclesiastical law,
inapplicable to their circumstances, and for that reason
did not, either expressly or tacitly, adopt them.
According to the English decisions, therefore, Eng-
lish ecclesiastical law was in no sense in force in the
colonies, and as such, could not be used. According
to the American authorities, it co7i/d be used, but it
was not in force, because it was not used.
CHURCH LA IV.
21
These colonial churches having, as the necessary
consequence of the Revolution, lost the bond of union
that was furnished them by the informal episcopate
of the bishops of London, began, soon after the close
of the Revolutionary war, to consider the expediency
of forming a union as a national church, which
should embrace all the dioceses, and have control of
the spiritual interests that were common to them all,
and be clothed with the powers necessary for that
purpose, leaving, however, the control of all merely
local interests to the respective congregations in the
dioceses. The general drift of public sentiment in
this direction will be seen from the proceedings of
meetings for consultation held by the clergy and
laity in different states during the year 1784, and
subsequently, and which led gradually to the framing
and adoption of the Constitution of the Protestant
Episcopal Church in the United States of America, in
the year 1789.
A convention of the clergy and laity of the diocese
of Pennsylvania met in Christ Church, Philadelphia,
on the 24th of May, 1784, which, as stated by Bishop
White, was the first ecclesiastical assembly in any
state consisting partly of lay members, and in which
the first advances were made towards a general
organization. The result of their deliberations was
the establishing of the following principles, as a foun-
dation for the formation in the future, of an ecclesi-
astical body for the Church at large.
" 1st. That the Eipiscopal Church in these states
"is, and ought to be independent of all foreign
"authority, ecclesiastical or civil.
P I i/i mi-
ndly steps
towards a
I 'nion as
a National
Cliurch.
22
CHURCH LAW.
" 2d. That it hath, and ought to have, in common
' with all other religious bodies, full and exclusive
' powers to regulate the concerns of its own com-
' munion.
"3d. That the doctrines of the Gospel be main-
' tained as now professed by the Church of England,
'and uniformity of worship continued, as near as
' may be, to the liturgy of the said Church.
"4th. That the succession of the ministry be
' agreeable to the usage which requireth the three
' orders of bishops, priests, and deacons ; that the
' rights and powers of the same, respectively, be as-
' certained, and that they be exercised according to
' reasonable laws, to be duly made.
" 5th. That to make canons or laws, there be no
* other authority than that of a representative body of
' the clergy and laity conjointly.
"6th. That no powers be delegated to a general
' ecclesiastical government, except such as cannot be
' conveniently exercised by the clergy and laity, in
' their respective congregations. "
The proceedings which led to the meeting of this
convention, as given by Bishop White and taken from
the journal in his possession, will be found in his
Memoirs of the Church, p. 93. A meeting of the
clergy of Boston was also held on the 8th day of
September, 1784, in which the following resolutions
were adopted :
" 1st. That the Episcopal Church in the United
" States is, and ought to be, independent of all foreign
"authority, ecclesiastical and civil. But it is the
"opinion of this convention, that this independence
CHURCH LAW.
23
' ' be not construed or taken in so rigorous a sense, as to
"exclude the churches in America, separately or col-
"lectively, from applying for and obtaining from
"some regular Episcopal foreign power, an Ameri-
" can Episcopate.
"2d. That the Episcopal Church in these states
"hath, and ought to have, in common with all other
"religious societies, full and exclusive powers to
"regulate the concerns of its own communion.
" 3d. That the doctrines of the Gospel be main-
" tained, as now professed by the Church of Eng-
"land, and uniformity of worship be continued, as
"near as may be, to the liturgy of the said church.
"4th. That the succession of the ministry be
"agreeable to the usage which requireth the three
" orders of bishops, priests, and deacons; that the
" rights and powers of the same be respectively ascer-
" tained, and that they be exercised according to rea-
" sonable laws to be duly made.
"5th. That the power of making canons and
"laws be vested solely in a representative body of the
" clergy and laity conjointly, in which body the laity
"ought not to exceed, or their votes be more in num-
" ber than those of the clergy.
"6th. That no power be delegated to a general
"ecclesiastical government, except such as cannot
" conveniently be exercised by the clergy and ves-
" tries in their respective congregations."
The resolutions adopted by the convention of
May, 1784, held in Philadelphia, were probably
drawn by Bishop White, as the calling of the con-
vention was first suggested by him, and he was chair-
24
CHURCH LAW.
man of the clergy and committee that issued the
call, and the leading man in the convention. The
resolutions adopted at the meeting of the clergy in
Boston were copied substantially from those of the
Philadelphia convention. These resolutions are im-
portant, as showing the objects which the represent-
ative churchmen of that day had in view in the
organization of a general national Church.
Under an arrangement made by the clergy of the
cities of New York and Philadelphia, a meeting of
several of the clergy from the dioceses of New
York, Pennsylvania, and New Jersey, was held in
New Brunswick, New Jersey, in May, 1784, being,
as stated by Bishop White, the first communication
between the clergy of different states. Little was
done at this meeting, except to advise those pres-
ent of the proceedings of the convention held in
Philadelphia, to discuss the principles of an ecclesias-
tical union, and listen to suggestions in reference
thereto. See Memoirs of the Church, p. 83.
Another informal meeting for consultation was
held in the city of New York, in October, 1784,
made up of clergy and laity from the dioceses of
Connecticut, New York, New Jersey, Pennsylvania,
Delaware, Maryland, and Virginia, when the follow-
ing form of recommendation was adopted :
1st. "That there shall be a General Convention
* ' of the Episcopal Church in the United States of
"America.
2d. "That the Episcopal Church in each state
"send delegates to the Convention, consisting of
" clergy and laity.
CHURCH LA W.
25
3d. "That associated congregations in two or
" more states, may send deputies jointly.
4th. "That the said Church shall maintain the
"doctrines of the gospel, as now held by the Church
" of England, and shall adhere to the liturgy of said
" Church as far .as shall be consistent with the Ameri-
" can Revolution and the constitutions of the respect-
" ive states.
5th. "That in every state where there shall be
"a bishop duly consecrated and settled, he shall be
"considered a member of the Convention, ex-ofificio.
6th. "That the clergy and laity assembled in
"convention shall deliberate in one body, but shall
' ' vote separately ; and the concurrence of both shall
" be necessary to give validity to every measure.
7th. "That the first meeting of the Convention
"shall be at Philadelphia, the Tuesday before the
"feast of St. Michael next, to which it is hoped and
" earnestly desired that the Episcopal Churches in
"the several states will send their clerical and lay
"deputies, duly instructed and authorized to pro-
" ceed on the necessary business herein proposed for
" their deliberation."
The delegate from Connecticut, however, took no
part in the proceedings further than to announce to
the meeting that the clergy of Connectic 't had taken
measures for obtaining an Episcopate, and could
do nothing until that should be accomplished; but
that, as soon as they should have succeeded, they
would come forward with their bishop for the doing
of what the general interests of the Church might
require.
26
CHURCH LA W.
Constitu-
tion fram-
ed.
As proposed by the meeting held in October,
1784, in the city of New York, a convention of
clerical and lay deputies was held in the city of Phila-
delphia, on the 27th of September, 1785, from seven
of the thirteen United States, to wit, New York,
New Jersey, Pennsylvania, Delaware, Maryland, Vir-
ginia, and South Carolina. The proceedings of this
Convention at its meetings in 1785 and 1786, and of
the Convention of 1789, are given by Bishop White
in his Memoirs, including the Constitution as recom-
mended by the Convention of 1785, amended in 1786,
and finally adopted with additional amendments in
1789. In reference to the work of these conventions
Judge Hoffman says, (Law of the Church, p. 93):
" It was before stated that in September, 1785,
' the delegates from seven States met at Philadel-
' phia. On the first of October, 1785, the draft of
' an Ecclesiastical Constitution was submitted to the
' Convention by the Rev. Dr. Smith, of Maryland,
' the chairman of a committee before appointed. It
' was read by paragraphs and ordered to be trans-
' scribed. Nothing further was done in that con-
' vention. The second General Convention met
'on the 20th of June, 1786. The Constitution
* was taken up and debated. Several alterations
' were made, and on the 23d of June it was unani-
' mously adopted. The title and preamble are as
' follows:
"A General Constitution of the Protestant Epis-
' copal Church in the United States of America.
"Whereas, In the course of Divine Providence,
* the Protestant Episcopal Church in the United
CHURCH LA W.
27
States of America has become independent of all
foreign authority, civil or ecclesiastical."
*' The preamble then recited the meeting of depu-
ties in New York, in October, 1784, and the recom-
mendation to send deputies to Philadelphia in order
to unite in a constitution of ecclesiastical govern-
ment, agreeably to certain fundamental principles
expressed in such recommendation, and pro-
ceeded —
"And whereas. In consequence of the said recom-
mendation and proposal, clerical and lay deputies
have been duly appointed from said Church, in the
states of New York, New Jersey, Pennsylvania,
Delaware, Maryland, Vi'"ginia, and South Carolina ;
the said deputies being now assembled, and taking
into consideration the importance of maintaining
uniformity in doctrine, discipline, and worship in the
said Church, do hereby determine and declare:"
"Then followed the articles of the Constitution.
Most of these are substantially the same as those
now in force, as will be seen hereafter, when they
are stated at length."
"The eleventh article was as follows:
"The Constitution of the Protestant Episcopal
Church, in the United States of America, when
ratified by the Church in a majority of the states
assembled in General Convention, with sufficient
power for the purpose of such ratification, shall be
unalterable by the Convention of any particular
state which hath been represented at the time of
'such ratification." (Bioren 25).
28
CHURCH LA W.
"On the 24th of June, 1786, the following recom-
' ' mendation was passed : ' ' That the several state
" Conventions do authorize and empower the deputies
"to the next General Convention, after we shall
"have obtained a bishop or bishops in our Church,
"to ratify a general Constitution respecting both the
"doctrine and discipline of the Protestant Episcopal
"Church."
"On the loth of October, 1786, an adjourned
"Convention was held, at which the chief business
' ' was the consideration of letters by the Arch-
" bishops, and Bishops of England. The states of
" Virginia and Maryland were not represented in this
"adjourned Convention. Copies of the proceedings
' ' were ordered to be sent to the standing committees. "
"The next meeting of the General Convention
"was in July, 1789. Bishops White, Seabury,
"and Provoost had then been consecrated. The
"former attended and presided. A committee was
"appointed to take into consideration the proposed
" Constitution, and to recommend such additions and
"alterations as they should think proper."
"On the 1st of August, 1789, the committee
"reported the Constitution. It consisted of nine
"articles, and it was resolved, 'That the ist, 2nd,
"4th, 5th, 6th, 7th and 8th articles be adopted, and
"stand in this order, i, 2, 3, 4, 5, 6 and 7, and
" that they be a rule of conduct for this Convention;
"and that the remaining articles, viz., the 3d and
"9th, be postponed for future consideration.' "
" On the 7th of August, the Convention discussed
"the two articles which had been postponed, and
CHURCH LA IV.
2g
"which, after amendment, were agreed to. The
'"Constitution was then ordered to be engrossed for
"signing. On the 8th of August, it was read and
" signed by the Convention. Every^delegate appears
' ' to have subscribed it, except two from Delaware,
"and one from Maryland. Both clergy and laity,
" however, of these states were represented by those
" who did sign."
"On the 5th of August, 1789, the following
"resolves were unanimously passed:
* ' Resolved, That a complete order of Bishops,
"derived as well under the English as the Scottish
"line of Episcopacy, doth now subsist within the
" United States of America, in the persons of the
" Right Rev. William White, the Right Rev. Samuel
" Provoost, and the Right Rev, Samuel Seabury. "
' ' Resolved, That the said three Bishops are fully
"competent to every proper act and duty of the
"Episcopal office and character in these United
" States, as well in respect to the consecration of other
" bishops, and the ordering of priests and deacons, as
"for the government of the Church, according to
"such rules, canons, and institutions as now are, or
"hereafter may be, duly made and ordained by the
" Church."
"This Convention was adjourned from August,
" 1789, to the 29th of September ensuing, in order
" to meet the views of the churches of Massachusetts,
"Connecticut, and New Hampshire. At that time
"its labors were resumed. It was resolved, the
" better to promote union with the eastern church,
' ' that the General Constitution was open to amend-
30
CHURCH LA W.
' ments and alterations. A committee was chosen
' to confer with the Eastern churches. That com-
' mittee reported the assent of the deputies from
' those churches to the Constitution, except as to
' the third article ; and their readiness to unite,
' provided that this article was so amended as to
' authorize the Bishops, when sitting as a separate
' house, to originate any measures, and to negative
' the acts of the other house. The committee re-
' commended the adoption of these suggested
' changes. The Convention agreed to them, mod-
' ifying the veto, however, so that a law might
' be passed if still adhered to by four-fifths of
* the House of Deputies. On the 2nd of October,
' 1789, Bishop Seabury and the Deputies from Con-
' necticut, Massachusetts, and New Hampshire, gave
' their assent to the Constitution as thus modified,
' and the labors and cares of this Convention ceased. "
The Constitution was duly signed in the following
order, to wit: First, by the two bishops present,
Bishops Seabury and White; next, by the deputies
from New Hampshire, Massachusetts, and Connecti-
cut, and then by all the other deputies. It would
seem that the Constitution was regarded as dating
and deriving its validity from this subscription of the
full Convention, rather than from that of the 8th of the
preceding August; and the sessions of the Conven-
tion were thus happily brought to a close, and a
National Church organized, embracing all the Episco-
pal Churches of all the states represented in the
Convention, with a Constitution that was satisfactory
to and binding upon them all.
CHURCH LA W.
31
The question at once arose, what is the law of this
new organization, the Protestant Episcopal Church in
the United States of America? It was evident that
it could not, like a colonial church, claim as its birth-
right such English law as it might deem applicable
to its circumstances, for the reason that in 1789,
when this Church was organized, England was a for-
eign country, and an independent church, like an
independent state, cannot be subject to foreign law.
So far as English laws and usages had been
adopted by the colonial churches in their congrega-
tions, they were still the laws and usages of such
congregations, so that, practically, the doctrine, dis-
cipline, and worship of the Church of England con-
tinued to exist in all the churches in the different
states, precisely as before the Revolution.
But the question presented was, whether, techni-
cally, the new organization, as a matter of course,
took over from the dioceses, or the churches of the
different states, their laws and usages without any
action on its part, or whether, to that end, such
affirmative action was necessary.
The question was not, whether the same laws and
usages that prevailed in the colonial churches should
be recognized and adopted by the new National
Church, for all were agreed as to that; but how was
this to be done. It is not strange that the eminent
lawyers of that day, whose judgment was that the
government of the United States had no common law,
and could adopt, as a source of jurisdiction, neither
English nor colonial law, except by positive legisla-
tion, should have come to the same conclusion as to
La'iV of
the New
Or^aniza-
lion.
32
CHURCH LAW.
the National Church, and its relation to English and
colonial ecclesiastical law ; and such seems to have
been the fact. The House of Deputies of the Gen-
eral Convention of 1789 refused to admit the binding
obligation of any ecclesiastical law, canonical or other-
wise, upon the National Church, when confessedly
applicable, further than as they should distinctly, and
by legislation, recognize the same.*
The rule, as recognized by the Courts of the
United States, is thus referred to by Chancellor Kent,
(i Kent's Com. 338):
"Mr. Du Ponceau, in his 'Dissertation on the
" Nature ana Extent of the Jurisdiction of the Courts
"of the United States,' has ably examined the sub-
"ject, and shed strong light on this intricate and
"perplexed branch of the national jurisprudence.
"He pursues the distinction originally taken in the
"Circuit Court in Massachusetts, and maintains that
"we have not, under our federal government, any
" common law, considered as a source of jurisdiction;
"while, on the other hand, the common law, consid-
" ered merely as the means or instrument of exercis-
" ing the jurisdiction conferred by the Constitution
" and laws of the Union, does exist, and forms a safe
' ' and beneficial system of national jurisprudence. The
"courts cainnot derive their right to act from the
" common law. They must look for that right to the
"Constitution and law of the United States. But
" when the general jurisdiction and authority is given,
"as in cases of admiralty and maritime jurisdiction,
=-See Memoirs of the Church, page 171; Vinton's Manual, page 15; Hoff-
man's Law of Church, page 37.
CHURCH LA W.
33
" the rules of action under that jurisdiction, if not
"prescribed by statute, may and must be taken from
' ' the common law, when they are applicable, because
" they are necessary to give effect to the jurisdiction."
And Chancellor Kent expresses his approval of the
views thus presented.
The Convention of 1789, recognizing the same
legal principle, refused to adopt the 4th Article of the
Constitution framed by the Convention of 1785, pro-
viding that the Book of Common Prayer and Admin-
istration of the Sacraments, and other rites and cere-
monies of the Church of England, should be con-
tinued to be used by the Church, as altered by the
Convention, but instead thereof adopted Article 8 of
our present Constitution, which is in these words:
"A Book of Common Prayer, Administration of
"the Sacraments, and other rites and ceremonies
"of the Church, articles of religion, and a form and
"manner of making, ordaining, and consecrating
" Bishops, Priests, and Deacons, when established by
"this or a future General Convention, shall be used
"in the Protestant Episcopal Church in those states
" which shall have adopted this Constitution."
The additional provision now found in Article 8th
of the Constitution, as to the mode of making altera-
tions in the Book of Common Prayer, was made by
the Convention of 1848.
The resolution of the House of Deputies referred
to, and the form given to the 8th Article of the Con-
stitution, led to much dissatisfaction, as they were
supposed to involve the denial of the existence, since
the Revolution, of any laws or institutions in the
34
CHURCH LA W.
churches of the different dioceses, until enacted or
provided by the General Convention ; whereas, they
involved no such denial at all, but simply asserted
that the new National Church, in order to avail itself
of the laws and institutions still in force and existing
in the colonial churches, must by legislation adopt
them, as there was no other way in which it could
legally be done. This was only the application to
the National Church of the same rule that has been
recognized by the Supreme Court of the United
States as applicable to the National Government in re-
gard to its laws. It was a technical question as to the
proper mode of reaching a result which all desired,
and the judgment of the House of Deputies seems
to have been fully sustained by the adjudications of
the Supreme Court referred to ; and certainly, as a
matter of safety, if not of necessity, the action of
the House of Deputies, as well as that of the
Convention, was wise ; for i t would have been a
troublesome, and perhaps dangerous experiment, for
the Church to have attempted the exercise of a com-
mon law jurisdiction, in defiance of a well settled
principle of law, recognized by the Courts of the
United States. The course pursued by the Conven-
tion secured for the National Church, by legislation,
beyond all possibility of doubt, the essential laws and
usages that were in force in the colonial churches, but
the form given to the 8th Article of the Constitution,
taken in connection with the resolution of the House
of Deputies, seems to be conclusive to the point, that
the Convention considered no law or usage binding
upon the National Church, without such legislation.
CHURCH LAW.
The ratification of the Book of Common Prayer
by the General Convention of 1789, is in these
words :
" This Convention having, in their present ses-
" sion, set forth a Book of Common Prayer and
"Administration of the Sacraments, and other rites
"and ceremonies of the Church, do hereby establish
"the said Book; and they declare it to be the Lit-
" urgy of this Church, and require that it be received
" as such by all members of the same; and this Book
" shall be in use from and after the first day of Octo-
" ber, in the year of our Lord one thousand seven
" hundred and ninety."
The first paragraph of the Preface to the Book of
Common Prayer is as follows:
"It is a most invaluable part of that blessed lib- \
" erty wherewith Christ hath made us free, that in his ]
" worship different forms and usages may, without /
" offense, be allowed, -fwovided the substance of the /
"Faith be kept entire; and that in every church, \
"what cannot be clearly determined to belong to ^
" Doctrine must be referred to Discipline; and there-. /
"fore, by common consent and authority, maybe \
"altered, abridged, enlarged, amended, or otherwise J
' * disposed of, as may sccni most convenient for the ^
''edification of the people, according to the various
" exigencies of times and occasions."
A very eminent canonist, Judge Hoffman, in his
able work on the Law of the Church, pp. 40, 41,
gives as his conclusion that the whole body of P>ng-
lish ecclesiastical law, with certain unavoidable
qualifications, was the rule of the colonial churches,
36
CHURCH LA IV.
Meaning
of term
^'Disci-
plined
See Appen-
dix A.
Judge
Hofman's
view.
and rests his argument mainly upon the language
above quoted from the Preface to the Book of Com-
mon Prayer. He says, Law of the Church, p. 40:
"Now, what did the discipline of the English
"Church comprehend? It embraced the establish-
" ment and prescription of the Book of Prayer, to
"be used throughout the realm; the adoption by
"ministers of, and subscription to the articles of faith;
"the regulation of rites and ceremonies by canons
"and rubrics; and just as much, just as fully and
" absolutely did it comprise the whole body of ecclesi-
" astical law, by which the Church, in all other par-
" ticulars, was controlled and directed. That this
" whole body of discipline was the rule of the co-
" lonial church, with the unavoidable qualifications
" before adverted to, is a point which admits not of
" dispute."
It seems very remarkable that Judge Hoffman
should have inferred from the statement in the Pre-
face, that " whatever cannot be clearly determined
to belong to doctrine, must be referred to disci-
pline," that the Convention of 1789, in the teeth of
the resolution referred to, adopted by the House
of Deputies, did, in fact, recognize the whole body
of P^ngli.sh ecclesiastical law, with the unavoidable
qualifications referred to, as in force, in the Protest-
ant Episcopal Church in the United States, without
any affirmative action on its part, and when the 8th
Article of the Constitution shows conclusively that
the convention deemed it necessary to legislate as to
the essential points of doctrine, discipline, and wor-
ship, and did not regard the Book of Prayer,
CHURCH LA W.
37
Administration of the Sacraments, and other rites
and ceremonies of the English Church, as legally bind-
ing upon the Protestant Episcopal Church in the
United States, until, and only so far as established
by the General Convention thereof.
The Constitution itself was a radical departure
from English ecclesiastical law, in all its leading fea-
tures. It created, as the supreme legislative power
of the Church, a General Convention, composed
equally of clergy and laity, and it made the bishops
eligible by conventions of the dioceses similarly con-
stituted, while it recognized these dioceses as having
control of all their merely local church interests. The
preamble to the Constitution, as originally framed in
1785, states, that "the .said deputies being now as-
sembled, and taking into consideration the importance
of maintaining uniformity in doctrine, discipline, and
worship, in the said Church, do hereby determine
and declare," etc. On this point. Judge Hoffman
says, p. 120: " It (the General Convention) cannot
adopt any law for discipline, of a limited and local
operation. It must be for the whole Church, and
uniform throughout the Church."
The dioceses have control of all merely local
legislation, and, as to this, differ widely from each
other. And yet, while the National Church and the
dioceses have alike, in their methods of working, dis-
carded almost every principle of English ecclesiastical
law, and the dioceses have separated widely from each
other, they have not departed, in any essential point,
from the doctrine, discipline, and worship of the
Church of England.
JS
CHURCH LA W.
The word "discipline," as used in the Preface to
the Prayer Book, evidently refers, not to the canon
law in general, but only to that part of the " forms
and usages" of the Church in public worship, therein
referred to, that " does not belong to doctrine," and to
which reference is made in our standard authorities on
Church law, under different forms of expression. The
language of the Preface to the Prayer Book, as to
alterations and amendments is as follows: "They will
" appear, and it is to be hoped, the reasons of them also,
" upon a comparison of this with the Book of Com-
" mon Prayer of the Church of P^ngland. In which
" it will also appear that this Church is far from intend-
' ' ing to depart from the Church of England in any
"essential point of doctrine, discipline, or worship; or
"further than local circumstances require." The
meaning of this language evidently is, that the es-
sential principles of the Church of P^ngland, in their
forms and usages, have not been departed from ; but
not that we recognize their whole system of ecclesi-
astical law as, in any sense, binding upon us. No
such thing as this is shown by a comparison of the two
books.
In the statement of principles presented by the
Convention of the Church in Pennsylvania, in 1 784,
as hereinbefore stated, and which was probably
the work of Bishop White, the following language is
used to express the same idea of maintaining the
essential principles of the doctrine, discipline, and
worship of the P>nglish Church:
" 3d. That the doctrines of the Gospel be main-
" tained as now professed by the Church of P'ngland,
CHURCH LA W.
39
"and uniformity of worship continued, as near as
"may be, to the liturgy of the said Church."
"4th. That the succession of the ministry be
"agreeable to the usage which requires the three
"orders of bishops, priests, and deacons; that the
"rights and powers of the same, respectively, be
"ascertained, and that they be exercised according
" to reasonable laws to be duly made."
The 4th item of the resolutions of the meeting
held in New York in October, 1784, is as follows:
"That the said Church shall maintain the doctrines
"of the Gospel, as now held by the Church of Eng-
" land, and shall adhere to the liturgy of said Church
" as far as shall be consistent with the American Revo-
" lution, and the constitutions of the respective
"'states."
""The Convention of 1786, in its answer to the
letter of the English bishops, expresses " an assurance
"of there being no intention of departing from the
"constituent principles of the Church of England."
The clergy of Connecticut, in their letter to the
Archbishop of York, say: "Notwithstanding the
"dissolution of our civil connection with the parent
" state, we still hope to retain the religious polity, the
"primitive and evangelical doctrine and discipline,
"which, at the Reformation, were restored and estab-
" lished in the Church of England."
The Memorial of the Church of New Jersey of
May 19, 1786, to the General Convention, requests
said Convention that it will remove every cause
that may have excited any jealousy or fear that the
Episcopal Church in the United States has any in-
40
CHURCH LAW.
tention or desire essentially to depart, either in doc-
trine or discipline, from the Church of England ; but,
on the contrary, to convince the world that it is its
wish and intention to maintain the doctrines of the
Gospel, as now held by the Church of England, and
to adhere to the liturgy of said Church, as far as shall
be consistent with the American Revolution, and the
constitutions of the respective states.
The following is the language used in the declara-
tion to be made by candidates for Holy Orders, under
the provisions of Article 7 of the Constitution :
' ' And I do solemnly engage to conform to the
"doctrines and worship of the Protestant Episcopal
"Church in the United States."
The General Convention, in its letter to the Arch-
bishops and Bishops of the English Church, dated
June 26, 1786, used the following language: " While
"doubts remain of our continuing to hold the same
"essential articles of faith and discipline with the
" Church of England, we acknowledge the propriety
" of suspending a compliance with our request. We
"are unanimous and explicit in assuring your Lord-
" ships that we neither have departed, nor propose to
"depart, from the doctrines of your Church. We
"have retained the same disdpline and forms of wor-
' ' ship, as far as was consistent with our civil-Gonsti-
" tutions, and we have made no alterations or omis-
" sions in the Book of Common Prayer but such as
' * that consideration prescribed, and such as were
* ' calculated to remove objections, which, it appeared
"to us, more conducive to union and general content
"to obviate than to dispute."
CHURCH LA W.
41
The Archbishops of Canterbury and York, in
their letter to the Committee of the General Conven-
tion at Philadelphia, allude, among other things, to
" communications with regard to your liturgy, articles
"and ecclesiastical constitution, without the knowl-
" edge of which we could not presume to apply to the
"legislature for such powers as were necessary to
" the completion of your wishes."*
In the first Article of the Constitution of the
Church in South Africa, in different language, but to
the same effect, as in the Preface to our Book of
Common Prayer, the determination not to depart
from the doctrine, discipline, and worship of the
Church of England is expressed as follows (see case
of Merriman vs. VVilliams, before cited) :
"The Church of the Province of South Africa
"receives the doctrines, sacraments, and discipline of
" the Church of Christ, as the same are contained and
"commanded in Holy Scripture, according as the
' ' Church of England has received and set forth the
"same in its standards of faith and doctrine; and it
" receives the Book of Common Prayer, and of order-
" ing of Bishops, Priests, and Deacons, to be used
" according to the form therein prescribed in public
"prayer, and administration of the Sacraments, and
"other holy offices; and it accepts the English ver-
" sion of the Holy Scriptures, as appointed to be read
" in the Churches; and further, it disclaims for itself
" the right of altering any of the aforesaid standards
"of faith and doctrine."
•■'See Half Century of Legislation, page 51.
42
CHURCH LAW.
A careful examination of this phraseology and of
the documents referred to, and others which will be
found at length, in the Appendix, will show con-
clusively that the word " discipline," as used in the
Preface to the Book of Common Prayer, was not un-
derstood to have any reference to ordinary ecclesias-
tical legislation or canons in force in the Church of
P2ngland, but simply to those "forms and usages" in
public worship, that, being distinct from doctrine
were therefore subject to change, from time to
time, "as may seem most convenient for the edi-
fication of the people." A book of discipline is
not a book of canons; and it is difficult to see
upon what authority Judge Hoffman's definition
of the term "discipline," making it comprise "the
whole body of ecclesiastical law" of the Church
of England, could have been supposed to rest.
It was the honestly expressed opinion of an emi-
nent man and lawyer, but it is believed to be
unsustained by authority, either historical or legal.
But even if, in this specific sense, a wider sense
were implied, including whatever in the Church is
established by mere human authority, and is there-
fore susceptible of diversity, and liable to change;
still, it would not follow from the language of the
Preface, when interpreted in the light of the 8th
Article of the Constitution, that the whole discipline,
as thus understood, including all the laws and canons
of the Church of England, was binding on the
Church in this country, unless intrinsically inapplica-
ble, or positively repealed. If this were so, and dis-
use is not to be regarded as proof that a law Was inap-
CHURCH LA W.
43
plicable to the condition of a colony, then it follows
that for more than one hundred years prior to the
Revolution, the colonial churches were necessarily
subjected to foreign law without reference to their
consent or wishes. Surely this was never the condi-
tion, either in Church or State, of any English colony.
Our Church has never repealed the Prayer Book
of the Church of England, nor did she set forth that
Prayer Book with amendments, but she set forth inde-
pendently a Prayer Book of her own, as expressly
stated in the Ratification, and as appears from the
action of the General Convention of 1789 in detail;
and what is thus true of the Prayer Book, is also
plainly and emphatically true of the Constitution and
canons of the Church. To the article No. 35, of our
Articles of Religion established by the Convention in
1 801, we find appended in brackets, among other
things, the following explicit declaration: "This
article is received in this Church, so far as it de-
clares the Books of Homilies to be an explication of
Christian doctrine, and instructive in piety and mor-
als. But all references to the constitution and laws of
E.ngland are considered inapplicable to the circum-
stances of this Church."
The General Convention gave unequivocal assur-
ances that it had no intention or desire to depart,
in any essential point, from the doctrine, or the forms
and usages of the Church of England in public wor-
ship ; but, to this end, it considered it necessary,
by affirmative legislation, to recognize and adopt this
"doctrine, discipline, and worship," as its own; and
it did so by Article 8th of the Constitution of the
44
CHURCH LA W.
Express
assent of
the Church
to a laio
essential.
Church ^nd the ratification of the Book of Common
Prayer. In addition to this, it even went so far
as to enact the following canon :
"Canon I."
"Of the orders of the Ministry in this Church."
" In this Church there shall always be three orders
"in the Ministry, namely: Bishops, Priests, and
"Deacons."
The Convention of 1789 thus established by law,
its Book of Common Prayer, with the rites, cere-
monies, and usages of public worship ; and deemed it
expedient, also, to provide by canon for the perma-
nent continuance of the three orders of the ministry ;
and with these facts before us, we cannot suppose that
this same Convention intended, in the Preface to its
Book of Common Prayer, to promise not to depart
from the ecclesiastical law of England, which was non-
essential, and which, according to the P^nglish authori-
ties, they did not possess, or to recognize as binding
upon the Church in the United States any canon law
whatever, whether enacted by Councils, P^mperors,
Popes, or Parliaments, until the same should, in like
manner, have been first affirmatively adopted by the
General Convention.
At the date of the Revolution, therefore, and at
the meeting of the General Convention of 1789, there,
was, as has been said, a Protestent P^piscopal Church
in each of the original thirteen states or dioceses, and
the Prayer Book of the Church of P^ngland, with its
offices, rites, and ceremonies, had been adopted by,
and was, therefore, the law of all these churches.
CHURCH LAW.
45
At the first general meeting to adopt measures
for union, which was held in New York, on Octo-
ber 6th, 1784, it was recommended to the states
represented, and proposed to those not represented,
to organize and associate ' ' themselves in the states
"to which they respectively belong, agreeably to
"such rules as they shall think proper; and when
" this was done, it was further recommended and pro-
" posed, that all should unite in a general ecclesiastical
" Constitution." Hawkes Ecclesiastical Contributions,
P-6.
The object of thus uniting in a Constitution of
ecclesiastical government was, as stated in the pream-
ble, the maintaining of uniformity in doctrine, disci-
pline, and worship, and to that end, it was agreed by
the convention held in Philadelphia, in 1784, before
referred to, that the Episcopal Church ' ' hath, and
ought to have, in common with all other religious
societies, full and exclusive power to regulate the
concerns of its own communion." "That to make
canons or laws, there be no other authority than that
of a representative body of the clergy and laity con-
jointly ;" and " that no powers be delegated to a gen-
eral ecclesiastical government, except such as can not
conveniently be exercised by the clergy and laity, in
their respective congregations."
The colonial churches then had adopted to a cer-
tain extent, either expressly or tacitly, the "forms
and usages" of the Church of England. In public
worship, they had expressly adopted the Prayer
Book, and had tacitly therefore adopted whatever, by
fair legal presumption, is implied in what was thus
46
CHURCH LAW.
Express
assent of
the Church
to a latv
essential.
expressly adopted, as for instance, the recognition of
the terms and definitions belonging to the Prayer
Book, and the three orders of the ministry with their
respective duties and prerogatives.
Now, the General Convention of 1789, averred
that it had no intention of departing in any es-
sential point from these *' forms and usages " in pub-
lic worship, but it came together to consider how
best to maintain them by means of a National Church.
It is admitted on all hands, that the Church has full
and exclusive authority over the whole subject of
legislation, either in the General Convention, for gen-
eral interests, or in the conventions of the dioceses,
for local purposes. The sole question as to which
differences of opinion exist is this: Shall the Church,
in all cases, first determine for itself, whether a foreign
canon is applicable or desirable, and is its express as-
sent necessary, in order to make such canon bind-
ing, or may somebody else decide for it in the first
instance, and a canon thus be treated as binding upon
the Church without its express assent, and until it
has expressly dissented? The analogies of all Eng-
lish and American law would seem conclusively to
show that the express assent of the Church is es-
sential, in all cases, before any foreign canon can be
binding upon it.
The colonial churches, having neither courts nor
legislatures, could manifest their assent to a canon,
only by usage ; while the Protestant Episcopal Church
in the United States, having no courts or usage, can
give its assent only by legislation. It is sometimes
claimed that the analogy between the law of the
CHURCH LA IV.
47
United States and of the Protestant Episcopal Church
in the United States is not appHcable, for the reason
that the state was and is simply the creature of law,
while, in the Church, the bishops are the source of
all canonical law, and of its administration, and that
it is only by their consent that others, and especially
the laity, have any share in ecclesiastical legislation
or administration.
The answer to this suggestion is, that no such
principle is recognized in English ecclesiastical law;
but, on the contrary, the law of England deals with
bishops precisely as with clergy and laity ; and before
it, all are absolutely equal. In England, laymen are
judges in ecclesiastical courts. Bishops are appointed
by the Crown, under a mere pretense of election.
Parliament enacts all ecclesiastical laws, and has done
so since the year 1717 without even the concurrence of
convocation ; and it will hardly be claimed that Par-
liament derives its powers from the bishops.
It is to be carefully observed, that this assertion
of the exclusive jurisdiction of the General Conven-
tion over the canon law of the Protestant P^piscopal
Church in the United States, does not, in the slight-
est degree, cut us off from the vast resources at our
command, in the history and legislation of the Church
in past ages, of which Judge Hoffman expresses his
fear. It serves only to shield us from the caprices of
individual men or parties, in selecting canons for us,
and gives us, in all cases, the protection of the delib-
erate judgment of the whole Church, acting through
its constituted authorities.
Relations
of Bishops
to legisla-
tion.
48
CHURCH LA W.
Summary.
We have then as laws and regulations for the
government of the Protestant Episcopal Church in
the United States, as follows:
1. The Constitution of the Church, and the can-
ons of the General Convention thereby authorized.
2. The constitutions and canons of the several
dioceses, of force only in such dioceses, respectively;
and subject to the lawful authority of the General
Convention.
3. The rubrics of the Church, and in some par-
ticulars, the articles.
4. The civil laws of the states affecting the
churches, and their members, in regard to corporate
or personal rights, civil privileges, and the acqui-
sition and preservation of property.
5. Such forms and usages and laws of the Church
of England as have been adopted by this Church, in
her constitution and canons.
CHURCH LA W.
49
CHAPTERiL
The Constitution of the Protestant Episcopal Church
in the United States of America was finally adopted
on the 2d day of October, 1789. On the 29th day
of July, 1789, a declaration was made in the Conven-
tion, by the deputies, as to the powers conferred upon
them in the premises, and which is thus stated in its
journal:
' ' The deputies from the several states being called
upon to declare their powers, relative to the object of
the following resolution of the Protestant Episcopal
Church, viz., — 'Resolved, That it be recommended
to the Conventions of this Church in the several
states represented in this Convention, that they au-
thorize and empower their deputies to the next
General Convention, after we shall have obtained a
bishop or bishops in our Church, to confirm and
ratify a General Constitution, respecting both the
doctrine and discipline of the Protestant Episcopal
Church in the United States of America,' — gave
information that they came fully authorized to ratify
a Book of Common Prayer, etc.. for the use of the
Church."
The preface to the journal of the proceedings of
the General Convention, at its adjourned session be-
ginning September 29, 1789, is as follows:
50
CHURCH LAW.
Objects
of'thc
Constitu-
tion as
stated by
its J valu-
ers.
' ' At a convention of the Protestant Episcopal
Church in the states of New York, New Jersey,
Pennsylvania, Delaware, Maryland, Virginia, and
South Carolina, held in Christ Church, in the city
of Philadelphia, from July 28th to August 8th, 1789,
upon the consideration of certain communications
from the bishop and clergy of the church in Con-
necticut, and from the clergy in the churches of
Massachusetts and New Hampshire, it was resolved
to adjourn to the 29th day of September following,
in order to meet the said churches, for the purpose of
settling articles of union, discipline, uniformity of
worship, and general government among all the
churches in the United States."
In the address of the members of the General
Convention to the Archbishops of Canterbury and
York, bearing date August 8, 1789, (see Half Cen-
tury of Legislation, etc., page 134), after averring
their attachment to the faith and doctrine of the
Church of England, and that not a wish appears to
prevail among the clergy or laity of ever departing
from that church in any essential article, they, among
other things, say:
"The business of most material consequence
which hath come before us, at our present meeting,
hath been an application from our sister churches in
the Eastern states, expressing their earnest desire of
a general union of the whole Episcopal Church in
the United States, both in doctrine and discipline;
and, as a primary means of such union, praying the
assistance of our bishops in the consecration of a
Bishop-elect for the states of Massachusetts and New
CHURCH LA W.
51
Hampshire. We therefore judge it necessary to ac-
company this address with the papers which have
come before us on that very interesting subject, and
of the proceedings we have had thereupon, by which
you will be enabled to judge concerning the particu-
lar delicacy of our situation, and, probably, to re-
lieve us from any difficulties which may be found
therein."
The language of Bishop Seabury, as quoted in
said communication to the Archbishops, is as follows:
"The wish of my heart, and the wish of the
clergy and of the church people of this state, would
certainly have carried me and some of the clergy to
your General Convention, had we conceived we could
have attended with propriety. The necessity of an
union of all the churches, and the disadvantages of
our present disunion, we feel and lament equally with
you ; and I agree with you, that there may be a
strong and efficacious union between churches, where
the usages are different. I see not why it may not
be so in the present case, as soon as you have re-
moved those obstructions which, while they remain,
must prevent all possibility of uniting. The Church
of Connecticut consists, at present, of nineteen cler-
gymen in full orders, and more than twenty thousand
people they suppose, as respectable as the church in
any state in the union."
The members of the convention in their letter
further say, that they have unanimously resolved "that
the Right Rev. Dr. White and the Right Rev. Dr.
Provoost be, and they hereby are, requested to join
with the Right Rev. Dr. Seabury, in complying with
5^
CHURCH LA W.
Relations
to the
Dioceses.
See Appen-
dix C.
"enlargement of the jurisdiction endangers contro-
" versy, and, of course, division." Memoirs, p. 283.
The Constitution recognizes a general ecclesiasti-
cal government, and local diocesan governments, a
National Church and diocesan churches, and a union
of diocesan churches; and although the analogy is
not perfect between this and our federal system of
civil government, yet we find in each a federal union
for the purposes of government, and it is difficult to
see how the Constitution can ever be so amended or
construed by the General Convention, as to break up
or seriously impair this union, which was the very
object for which the Constitution was framed. We
have then a general government as a National
Church, and local governments as diocesan churches,
and there is no clashing of interests or powers be-
tween them. Each church has or may have its
charitable and other organizations for such Christian
work as is incident to the being and life of a Church,
and each has its separate field of labor.
If the principles thus set forth are to be relied
on, the Protestant Episcopal Church in the United
States of America is an ecclesiastical body, inde-
pendent as such in its government and administra-
tion, and organized for the purpose of maintaining as
a church, uniformity in its doctrine, discipline, and
worship, or, as expressed in the resolution of June
24, 1786, of the General Convention, uniformity in
doctrine and discipline, which is precisely to the
same effect.
It is evident, therefore, that it was the intention
of the framers of the Constitution to provide in that
CHURCH LA W.
55
instrument for the exercise of all powers, legislative
or otherwise, that they regarded as necessary and
proper, in order to enable the National Church to
maintain this uniformity in doctrine, discipline, and
worship.
For this purpose the Constitution provided for a
General Convention, to be composed of clergy and
laity in equal numbers, as a legislative body, compe-
tent to enact canons under certain limitations ex-
pressed therein. It is evident from the action of the
preliminary meetings which led to the organization of
a National Church, that the power to enact canons
in a General Convention of clergy and laity from all
the dioceses, for the purpose of maintaining uni-
formity in doctrine and discipline, was especially con-
templated by the churches in the different states or
dioceses. It is thus expressed in the fundamental
principles adopted at the meeting held in Philadel
phia, in May, 1784:
" That to make canons or laws, there be no other
" authority than that of a representative body of the
" clergy and laity conjointly."
The action of the General Convention of 1789,
as well as of all subsequent conventions, is in keep-
ing with this view.
For purposes, therefore, which are distinctly indi-
cated in the resolution of June 24, 1786, and in the
preamble to the Constitution, and which are evident
upon the face of the instrument itself, the National
Church is sovereign within the limitations referred to,
but it cannot trench upon the rights of the dioceses
to manage exclusively their separate and distinct
Tlieir jur-
isdiction.
56
CHURCH LAW.
f
The
Church a
Federdl
Union ^
interests, nor can a diocese, in its action, properly-
pass beyond the limits of its strictly local jurisdic-
tion, and trench upon the constitutional prerogatives
of the National Church.
In the original draft of the Constitution adopted
by the General Convention of 1786, it was provided
by Article 3d as follows:
"In the said Church, in every state represented
" in this convention, there shall be a convention con-
" sisting of the clergy and lay deputies of the congre-
"gations. "
This provision was very properly omitted in the
Constitution as adopted in 1789, as the conventions
of the dioceses were already in existence, independ-
ently of this Constitution which was framed by depu-
ties elected by them, and the existence of these dio-
cesan conventions is expressly recognized in the 2d,
4th, 6th, and 9th Articles of the Constitution.
The true principle of federal government is thus
stated by Freeman in his " History of Federal Gov-
ernment," page 3: " Two requisites seem necessary
* * to constitute a federal government, in its most per-
" feet form. On the one hand, each of the members
"of the union must be wholly independent in those
"matters which concern each member only. On the
"other hand, all must be subject to a common power
"in those matters which concern the whole body of
"members collectively."
No confederation of dioceses, in which all are not
represented, would be admissible under the Consti-
tution, which is a union' of all the dioceses for all pur-
CHURCH LAW.
57
poses that are not strictly local, and therefore within
diocesan control.
The line of demarcation between the jurisdiction
of the Church, as thus organized, and that of the
respective dioceses, may not in all cases be clear, but
there is undoubtedly such a line, and it is sufficiently
distinct for practical purposes, as is seen from the
fact, that no serious difficulty has ever arisen between
the General Convention and any diocese in the mat-
ter of jurisdiction, although it has always been taken
for granted that the Constitution contemplates a fed-
eral union of, and not a central government over,
dioceses. Whatever differences of opinion may, at
any time, have existed, they have been found
gradually to yield to the fair, manly. Christian senti-
ment and treatment of the Church at large. Her
dioceses and members are loyal to her, for the reason
that their judgments are always appealed to, and a
fair consideration is given to every honest suggestion ;
and her conclusions therefore being reached in good
faith, as to matters which she believes to come fairly
within her jurisdiction, are usually, sooner or later,
cheerfully acquiesced in. It is important, however,
in order to maintain this kindly relation to the dio-
ceses, that the Church, in all her departments, shall
recognize the fact, that ihe Protestant- Episcopal
Church in the United States acknowledges no foreign
law, canonical or otherwise, as binding upon her, in
her government and administration, until she has first
adopted it, and thus made it her own.
Some confusion in discussions on Church law
has grown out of the fact that our creeds and
ss
CHURCH LA W.
standards recognize " the Holy Catholic Church,"
" the Holy Church throughout all the world," " the
mystical body of Christ which is the blessed company
of all faithful people;" of which great mystical
brotherhood the Church of England and the Church
in this country are undoubtedly members. But it
must be borne in mind in using these terms that they
refer to the unity of a common faith and not to a
legal organization ; and that the relations of the former
to the latter are necessarily spiritual, not legal. The
Church of England like our own, and every other
national church, is so far as the civil enactments of
the state admit of it, legally sovereign and indepen-
dent within its own limits, and fixes and determines
for itself, exclusively, the legal rights and obligations
of all its members.
The question as to the source and scope of the
power of the General Convention to enact canons
has been discussed by Judge Hoffman, and especially
the legal effect of the canons first enacted by it on
the 7th day of August, 1789, being the day before
the first signing of the Constitution by the members
of the convention. As to the latter point, it is
sufficient to say, that it was evidently from a mere
oversight of the convention, that these canons were
acted upon the day before the Constitution, which had
been already agreed upon, was technically adopted
by the signatures of the members; and that, at the
next General Convention, to wit, in 1792, they were,
as stated by Judge Hoffman, re-enacted, in order to
remove all doubt as to their validity. It does not
seem necessary, therefore, to determine what would
CHURCH LA IV.
59
have been the legal effect of these canons without
such ratification. As to the other point, to wit, the
source and scope of the power of the General Con-
vention to enact canons, Judge Hoffman says:
" I submit (with much deference upon a point
"almost untouched) that upon every question of
"jurisdiction, the inquiry is not, whether the power
"has been conferred, but whether it has been denied
" or restricted."
If Judge Hoffman is right in his conclusions, then
the dioceses, under whose auspices, and by whose
deputies the Constitution was framed, instead of con-
ferring by that instrument upon the General Conven-
tion a limited authority to enact canons, lost thereby
their own independence and became subordinate to
the General Convention as to all powers, legislative or
otherwise, that were not carefully reserved to them
in that instrument, and shall not be taken from them
by amendment of the same. Surely this could not
have been the understanding of the framers of the
Constitution, or the meaning of the resolution of June
24, 1786, under the terms of which they acted.
It is submitted with confidence, that the proceed-
ings of the Convention of 1786, which substantially
framed the Constitution, in connection with those of
the Convention of 1789, which finally adopted it,
show conclusively, that the legal effect of that instru-
ment must be, as its terms mdicate, to confer certain
limited powers essential to a National Church, upon
the new organization created by it, and that the Gen-
eral Convention is bound to confine its action within
the prescribed limits, and to those matters which con-
See Appen-
dix B.
Power of
Geticral
Conven-
tion to
enact can-
ons.
6o
CHURCH LA IV.
cern the whole body of members of the union col-
lectively, leaving the respective dioceses independ-
ent as to all matters which concern dioceses only.
Judge Hoffman refers to certain canons of the Gen-
eral Convention as indicating the assertion by it of
an unlimited authority in legislation, except as
otherwise expressly provided in the Constitution, and
in reference to this point says: "It is impossible to
find in that instrument (the Constitution), either in
express language, or by any warrantable inference,
any provisions on which to rest the validity of the
greater part of the canons." He says further: " For
example, the present 37th canon defines the offenses
for which a minister may be tried and punished. By
other canons certain offenses or neglects are punisha-
ble or censurable. There is not a sentence in the
Constitution upon which these provisions can be
placed as their authority and warrant."
The canon of the General Convention of 1789,
directing that there shall be a standing committee in
every diocese, with the subsequent canons upon the
same subject, and the canon of 1804, in reference to
the induction of ministers, are all included by Judge
Hoffman in the same category, as not authorized
expressly or impliedly by the Constitution, but as
resting upon an undefined mass of powers which the
General Convention possesses over the affairs of the
dioceses independently of the provisions of the Con-
stitution, because not "denied or restricted " by it.
The canons thus referred to would seem to come
fairly within the scope of the General Convention,
as the legislative body that is responsible for uni-
CHURCH LAW.
6i
formity in the doctrine, discipline, and worship of
the Church. This is evidently so, as to the definition
of offenses for which a minister may be tried and
punished. The canons in reference to standing
coiTimittees in the dioceses furnish a limitation or
qualification of episcopal authority and supervision,
by associating with the bishop as an advisory coun-
cil, a body elected by each diocesan convention, and
thus representing both the clergy and laity, and
usually composed of an equal number of both; and
which body, in case of a vacancy in the Episcopate,
is to be, for the time being, the ecclesiastical au-
thority of the diocese. If " uniformity in discipline"
has any meaning, it would seem to justify a canon
that thus asserts the distinctive feature of the Ameri-
can Church, to-wit, the recognition of the rights of
both clergy and laity in her administration, in accord-
ance with the usage of the Primitive Church. The
duties of these standing committees furnish the best
evidence of their value, as a part of the machinery of
church government, and their history attests the
wisdom of the General Convention in providing for
them. They serve especially to connect the laity
with the Episcopate, and the whole administration of
the affairs of the dioceses. So far as the canon
requiring the induction of ministers is concerned, it
was evidently designed to give stability of official
tenure, and thus to counteract a fearful evil which
has become well nigh intolerable in all Protestant
churches, to wit, the tendency to make of ministers
of the Gospel, mere hirelings, by the year, or the
month, or the day. But important as was the object
62
CHURCH LAW.
in view, the General Convention of 1808, in order to
avoid the possibiHty of interfering with the constitu-
tional rights of dioceses, provided that "the insti-
tution shall not be necessary where it interferes with
the laws or usages of a Church in a particular dio-
cese."
There is apparently nothing in the canons thus
referred to or their history, that is in conflict with
the fair treatment of the dioceses, and a due regard
for their strict constitutional rights.
It would be strange if no mistakes were to be
made by the General Convention in this matter of
jurisdiction, considering the hurried character of its
sessions, and the impossibility of giving to every
subject presented, a thorough consideration ; but, in
looking over the canons, we do not discover any seri-
ous infringement of the rights of dioceses by that
body.*
■•■■In order to insure a more careful consideration of difficult and
important questions, it has been suggested that the General Con-
vention shall revert to its original practice of appointing a stand-
ing committee to sit during the recess, between its sessions,
which committee was dispensed with on the organization of
standing committees of the respective dioceses. The suggestion
is worthy of consideration.
CHURCH LA W.
63
CHAPTER III.
The Constitution as published in the journal of the
General Convention of 1880, and also the Constitutions
of 1786 and 1789, will be found in Appendix F.
The name given to the new organization, to wit,
The Protestant Episcopal Church in the United States
of America, is significant of its character. It is a
Church, in the United States, Protestant in its prin-
ciples, Episcopal in its government.
The first question suggested by the name is.
What is to be understood by the term church, as thus
used ? The definition given by Hooker, and cited with
approval by Bishop Hopkins, declares "them which
call upon the name of our Lord Jesus Christ," or as
expressed by Bishop Hopkins, "all who profess to
acknowledge the Lord Jesus Christ, " to be his Church.
The creeds of the Protestant Episcopal Church in the
United States, answer, in all respects, the require-
ments of this, or any satisfactory definition of a Chris-
tian church. They rest upon what the Church be-
lieves to be facts; the manifestation of the Divine in
human life; and not upon the opinions or specula-
tions of men ; and therein lies all our hope of ultimate
Christian unity.
Secondly, It is a church in the United States; one
church among many. Believing that episcopacy
furnishes the best system of church government, this
of the
Church.
See Appen-
dix D.
•/ts signifi-
ctince.
64
CHURCH LA W.
CHAP. 3.
See Appen-
dix D (uid
E.
Church does not regard it as the only system. The
rehgious bodies about us, that accept the facts set
forth in the Apostles creed, are Christian churches.
They are recognized as such in the preface to the
Book of Common Prayer, which uses this language:
"But when in the course of Divine Providence,
' these American States became independent with re-
' spect to civil government, their ecclesiastical inde-
' pendence was necessarily included ; and the different
' religious denominations of Christians in these states,
* were left at full and equal liberty to model and or-
' ganjze their respective churches, and forms of wor-
' ship, and discipline, in such manner as they might
'judge most convenient for their future prosperity,
' consistently with the constitution and laws of their
' country."
liishop Hopkins considers it clear, "that the
' want of episcopal government is a defect, and a se-
' rious defect ; but that the churches which have it
' not, may, nevertheless, be true churches, so far as
'regards the essentials of a church."
It is in this sense that, in both our morning and
evening daily service, " we pray for thy holy Church
" universal ; that it may be so guided and governed
" by thy good Spirit, that all who profess and call
" themselves Christians, may be led into the way of
"truth, and hold the faith in unity of .spirit, in the
"bond of peace, and in righteousness of life."
Thirdly, It is a Protestant Episcopal Church.
When the l^nglish coronation oath was framed in 1688,
after the expulsion of James II from the throne, the
king was made to swear, among other things, to sup-
CHURCH LAW.
65
port the Protestant religion established by law. The
term Protestant had a very intelligible meaning. It
meant freedom of mind and conscience, from all
tyranny, political or ecclesiastical; and its value was
measured by what it had cost the British nation to
secure^it. The 5th article of the act of union of
Great Britain and Ireland (40 George III, C. 38,) is
as follows: " That it be the 5th article of the union,
"that the churches of I^ngland and Ireland, as now
"by law established, be united in one Protestant
" PLpiscopal Church, to be called the United Church
" of England and Ireland, and that the'doctrines,
"worship, discipline, and government of the said
" United Church shall be and shall remain in full
' ' force forever, as the .same are now by law estab-
" lished for the Church of P^ngland, and that the con-
" tinuance and preservation of said United Church,
"as the established Church of England and Ireland
" .shall be deemed and taken to be an essential and
" fundamental part of the union."
In 1789, the memory of the struggles of the
Reformation had not entirely died out, and hence,
this word Protestant is placed in the forefront of the
Constitution. Since that day, the peculiar dangers
of Protestantism, and especially its tendency to dis-
integration and individualism, have been more clearly
developed, while its history has to .some extent been
lost sight of; and the reverence that was once felt
for the name, has in a measure di.sappeared. But the
term Protestant has still all the meaning and value
that it had in 1789, or in 1688, and, however it maybe
with other branches of the Church, for us, its dangers
c. L, — 5.
CHAP. 3.
66
CHURCH LAW.
CHAP. 3.
Episcopa
cy I
\
Represen-
tation of
Dioceses in
General
Conven-
tion.
are not formidable. We connect with Protestantism,
both in the name and Constitution of the Church, the
Episcopate, which, in every age, and under all forms
of government, has been the great conservative force
of the Church, and the term " Protestant Episco-
pal " in the name,. indicates that union of progress
and conservatism, which is the safety of all free gov-
ernment, and which in the Protestant Episcopal
Church in the United States, has proved itself stronger
than even the disintegrating forces of civil war. This
Church believes that episcopal supervision and con-
trol furnish the only reliable security against the ten-
dency of Protestantism to disintegration and individ-
ualism, and it regards episcopacy as of Apostolic
origin and essential to the well being of a church, and
an indispensable element in any practicable system
of Christian unity.
The equal representation of the dioceses in Gen-
eral Convention, as provided for in the Constitution,
rests upon the principle of a generous expediency,
and does not follow the theory of representation
to its logical results. Equality of representation
among the dioceses, is a recognition of something
higher than the power of wealth or numbers in the
government of the Church, and by securing the
dignity and equality of the respective dioceses,
places them all in their relations to each other, upon
the footing of mutual esteem and confidence, rather
than of legal compulsion. Spiritual truth is not amen-
able to majorities: they have only to do with the in-
strumentalities for proclaiming it. This equality of
dioceses brings to the General Convention many of
CHURCH LA W.
67
our ablest men from all the dioceses, even the most
distant, at a great sacrifice of time and expense ; and a
seat in the Convention is regarded as a high honor.
If the representation in the General Convention were
based simply upon numbers, so that a few of the larger
dioceses could control its action, and the smaller
dioceses not be appreciably felt in the result, it is
greatly to be feared, that the interest now manifested
in its sessions and deliberations would gradually dis-
appear, and that the work of the Church in the Gen-
eral Convention would be left to the few dioceses that
would be found usually to control it, the remainder
feeling that they have practically no part or lot in the
matter. Under the Constitution as it now stands,
when the public sentiment of the Church settles down
fully upon a proposition, legal or otherwise, there are
few men that will venture to disregard it ; certainly not
enough to disturb the current of its influence; and
when the larger dioceses, with their intelligence and
strength bring about results in her councils, they are
submitted to in a kindly spirit and temper, for the
reason that they are reached by moral influences, and
not by the pressure of numbers.
In relation to this point of equality of repre-
sentation. Dr. Hawks says, (Contributions, etc.,
p. 20): "The ratio of representation is here
"fixed; not on the principle of wealth, or size, or
"numbers, but on the ground of entire parity of
"rank in our dioceses, be they great or small.
" Bishop White has often been heard by the author
" to say, that on no other ground would the dioceses
"ever have come into union. Diocesan equality is
68
CHURCH LAW.
CHAl'. 3.
See Report
of Seventh
Ch. Con
gress, p.
162.
"therefore here asserted; and further, diocesan in-
" dependency in all matters not surrendered for the
"great end of union; for any diocese may demand
" a vote by dioceses." ''
There has been a tradition to the same effect, and
the older members of the General Convention have
generally recognized the fact to which Bishop White
referred, as amounting to an understanding that this
feature of the equality of dioceses should not be dis-
turbed. Legally, of course, it may be, but the re-
sults might prove disastrous to the present organiza-
tion of the Protestant Episcopal Church in the
United States, and compel an entire re-adjustment
of our system of church government.
It is believed that no serious evils have grown out
of our present constitutional provision as to the ratio
of representation, and it certainly will be the safer
course to wait until such evils shall have appeared,
and not venture upon a radical change of the Con-
stitution in this respect until it shall have been dic-
tated by a practical instead of a supposed logical
necessity.
It must be admitted, however, that the constitu-
tional provision for equal representation is in danger,
owing mainly to a rapid increase in the number of
feeble dioceses; and the Church will probably be
called upon, at no distant day, to reconsider the ques-
tion and determine, whether her policy in the future
shall be to have fewer dioceses with equal represen-
tation, or an indefinite multiplication of dioceses with
proportional representation.
CHURCH LAW.
69
So far as judicial proceedings are concerned in the
trial of ministers, no change was made, but the
original powers of the dioceses were left untouched
by the Constitution ; and this is the reason why courts
of appeal have been supposed to be under the abso-
lute control of the dioceses, since, as well as before,
its adoption. It has been thought by some of our
wisest leaders, that a general court of appeal is or will
soon be necessary, from the growth and extent of the
Church and its interests. The English ecclesiastical
courts, like the civil tribunals, are clothed by law
with all the powers essential to the thorough admin-
istration of justice; but it cannot be said that the re-
sults of the system are reassuring, and it is doubtful
whether the faith of the church has in any respect
been materially affected by any of the decisions of the
English courts. Faith is never settled by litigation.
Cases only are determined by it.
In this country, the interference of the civil au-
thority with ecclesiastical questions, is, by common
consent, deemed wholly inadmissible ; and the conse-
quence is, that ecclesiastical courts, however constitu-
ted, are necessarily helpless in the trial of cases, and es-
pecially in the preparation of them for trial. Thorough
litigation in these courts is an impossibility. We can
have no adequate machinery in them, no pleadings,
no compulsory attendance of witnesses, no costs as-
sessed, no paid judiciary, no provision for expenses
which, in many cases, in a country so vast, must be
enormous. We therefore leave litigation to the dio-
ceses, as the least expensive and least objectionable
system ; and to them only so far as is absolutely neces-
Judicial
Pozuer.
Court of
Appeal.
CHAP. 3.
70
CHURCH LAW.
Relation
of Courts
to the faith
of the
Church.
sary for the discipline of offenders. By the Constitu-
tion of 1789, the duty of instituting the mode for the
trial of ministers, was imposed upon the dioceses; but
in the year 1848, article VI. of the Constitution was
amended, and it was left discretionary with them to
do so or not. It is stated by Dr. Hawks, that many
of the dioceses had neglected to act in the matter, and
this probably led to the change referred to. So far
as the dioceses may decline to exercise this discre-
tionary power, but no farther, it undoubtedly comes
within the scope of the powers of the General Con-
vention.
The sole question in relation to the expediency
of a court of appeal is this : Does the present system
of diocesan courts work such injustice to litigants, as
to make a court of revision necessary? Is justice
denied them to such an extent as to demand a
change in its administration, and can a court of ap-
peal be so constituted as to remedy the evil? The
sole business of courts is to administer justice between
litigating parties, and they deal exclusively with the
acts, and not with the consciences of men. They are"
in no respect ministers of the Gospel. By the de-
cision in the Dred Scott case, the litigating parties
were bound, but the conscience of the nation was not
bound; and so it must always be with any wrong
judicial decision. It is binding upon the litigants
whether right or wrong, but the question whether It
is right, is always an open one, and subject to an un-
trammeled public criticism and judgment alike in
church and state.
CHURCH LAW.
71
Decisions of courts, so far as the consciences of
men are concerned, operate morally not legally, in-
cidentally not directly, as arguments not as authority.
They seek to regulate the actions, not the thoughts
of men. If diocesan courts shall fail to do this, their
appropriate work, satisfactorily, and such uncertainty
shall follow a multiplicity of conflicting decisions as
to work injustice, or threaten serious confusion, a
court of appeal may become necessary as a last resort ;
but there is nothing in the present condition of the
Church that indicates such necessity.
The Church wisely tolerates differences of opinion
and judgment, until time shall have done its work of
softening asperities, quieting excitement, and develop-
ing the deliberate judgment of the whole Church, or
until practical evils shall have been disclosed, that
demand a remedy. There are difficulties necessarily
incident to any judicial system, but it should never be
forgotten that the faith of the Church cannot^esi
u_gon the decisions of courts, but is entirely indepeiL
dent of them all. The essential facts of Christianity
are set forth in our standards of belief — the creeds of
the Church ; but the interpretation of these facts, the
inferences to be drawn from them, opinions in
regard to them, cannot be so set forth, either by
courts of justice, or councils, or conventions; and
the only security from serious error in reference to
these, is to be found in that " patient continuance in
well doing " of the Christian life, that throws light
upon so many problems that mere human specula-
tion fails to solve.
72
CHURCH LAW.
House of
Bishops as
a Court of
Appeal.
If, however, experience shall finally show that we
must have a court of appeal, the House of Bishops
would seem to be the body to which such powers can,
with the aid of assessors learned in the law, be
most safely intrusted. Their independent tenure of
office, their representation of the whole Church, high
character, age, large experience, ability and attain-
ments, the economy of their administration, and the
historical fact that in the early ages of the Church
they were its judges as well as governors, would seem
to make it eminently proper, that any judicial power
that shall be found to be absolutely necessary for
controlling dioceses and preserving the faith of the
Church, should be vested in the House of Bishops,
which, while in one sense representing all the dioceses,
is absolutely independent of them all.
Thus the Protestant Episcopal Church in the
United States of America has framed its Consti-
tution, established its Book of Common Prayer, and,
from time to time, enacts its canons ; and being, like
the Church of England, an independent Church, suf-
fers no foreign law to gain a foothold here, unless
voluntarily received and adopted, and thus made a
part of the law of the American Church. It is not
necessary for scholars and antiquaries to dig our law
out of the accumulations of a thousand years, and
tell us what it is, for it is all to be found in our Con-
stitutions, canons, and history, including so far as
the respective dioceses are concerned, such usages', if
any, as have become a part of their law.
A
C
D
E
F
APPENDIX
Page.
73
B 83
97
103
117
121
APPENDIXES.
pPPENDIX fl,
OF THE LAW OF THE CHURCH.
The laws and regulations concerning the discipline of the
Protestant Episcopal Church of the United States may be thus
arranged:
1st. The Constitution and Canons of the General Convention,
forming a code for the uniform government of every Diocese and
every Church.
2d. The Constitution and Canons of the several Dioceses, of
force only within their several precincts, and generally subordinate
to the power of the General Convention.
3d. The Rubrics of the Church, and in some particulars, the
Articles.
4th. The civil laws of the States affecting the Churches and
their members, in regard to corporate or personal rights, civil
privileges, and the acquisition and preservation of property.
5th. And to these, in my judgment, is to be added a portion
of the Ecclesiastical Law of England; of that law strictly so
called, and distinguished from what in that kingdom is known as
the Foreign Canon Law.
The Constitutions and Canons, and those portions of the laws
of the States which are applicable, will be hereafter stated and
discussed. I shall seek in this introduction to prove that the
Ecclesiastical Law of England has an actual force and operation
in the system of our Church — to point out the extent of that ope-
ration — its limits and qualifications.
The separate action of the Churches in the States, after the
Revolution, and prior to or about the period of the organization of
the General Convention, is the next subject of inquiry.
AP.— I.
14 OF THE LA W OF THE CHURCH
On the day after the Declaration of Independence, the Conven-
tion of Virginia altered the Book of Common Prayer to accommo-
date it to the change of affairs.* This document is found in the
State Library, in Albany. It contains various alterations of the
service, almost exclusively relating to the prayers for rulers, and
closes as follows:
" Let every other sentence of the Litany be retained, without
any other alteration, except the above sentences recited."
By the act of the Assembly of Virginia, of 1784, the vestry-
men were required to subscribe a Declaration of Conformity to the
Doctrine, Discipline, and Worship of the Protestant Episcopal
Church. t
Among the regulations of 1785, it was provided, that the Lit-
urgy of the Church of England should be used with such altera-
tions only as had been remlered necessary by the American
Revolution. t
In 1790, during the bitter assaults upon the rights of the
Church to the glebes, it was resolved by the Convention, "That
the Protestant Episcopal Church is the exclusive owner of the
glebes, churches, and other property held by the Church of Eng-
land in Virginia, at the commencement of the Revolution ; '"H and,
in 1799, an opinion was given by Bushrod Washington, Edmund
Randolph, and John Wickham, asserting the same doctrine as was
contained in the resolution of the Convention.
The action of Maryland is of the highest importance. In
1775, the authorities prescribed a form of prayer for the new,
instead of the old government, and required an oath of the clergy
to support it.
In 1783, the celebrated Declaration of fundamental rights was
issued by the first convention. It was declared that "the Church
of Maryland possessed the right to preserve and complete herself as
an entire Church, agreeably to her ancient usages and professions :
that she had the essential enjoyment of those spiritual powers
which are essential to the being of every Church, independent of
any foreign or other jurisdiction, so far as may be consistent with
the civil rights of society."
It was also declared, " that the churches, chapels, glebes, and
other property formerly belonging to the Church of England, be-
longed to that Church and were secured to it forever"; and it
closed with the following admirable passage: "As it is the right,
"so it will be the duty of the said Church, (when duly organized,
"constituted, and represented in a synod or convention of the dif-
" ferent orders of her ministers and people,) to revise her liturgy,
' ' forms of prayer, and public worship, in order to adapt the same
"to the late revolution, and other local circumstances of America;
«Hawks' Contr. vol. i, p. 238.
tibid. 163.
|Ibid. 182.
II Ibid. 209. An Ess.iy w.TS read by Dr. M.idison \ipon this subject.
APPENDIX A. 75
"which, it is humbly conceived, may be done without any
"other departure from the venerable order and beautiful forms of
"worship of the Church from which we sprung, than may be
"found expedient in the change of our situation from a daughter
to a sister Church."
In the Vestry act passed by the State of Maryland, in 1798,
and adopted by the Church as part of its organization, there is a
clause expressly recognizing the Church of England as having
been the same as the Protestant Episcopal Church of Maryland.*
By the Constitution of South Carolina, 31st May, 1786, it was
declared that the doctrines of the Gospel be maintained as now
professed in the Church of England, and uniformity of worship be
continued as near as may be to the liturgy of the said Church.
(Dalcho's Hist., etc., p. 474.)
The action and judgment of Pennsylvania are shown by the
fundamental articles adopted in May, 1784. One of them was,
that the said Church shall maintain the doctrines of the Gospel as
now held by the Church of England, and shall adhere to the lit-
urgy of the said Church as far as shall be consistent with the
American Revolution and the Constitution of the respective
States. t
In Septeml^er, 1784, Massachusetts declared certain articles,
the third of which was almost in the identical language of that of
Pennsylvania above quoted. J
The State of New Jersey, in May, 1786, passed a set of rules
and regulations. By the 9th, a declaration was required from
every clergyman before he could officiate in the State, "that he
engaged to conform to the discipline of the Church, and also to
the doctrines and worship agreeable to the Book of Common
Prayer of the Church of England, except the political alterations
in the mode of worship made therein by the Convention held in
Philadelphia, from the 27th September to the 7th October, 1785."
In New York, in 1790, it was resolved as follows:
"Whereas, Many respectable members of our Church are
alarmed at the Articles of our Religion not being inserted in our
new Book of Common Prayer,
Rcsoh'cd, That the Articles of the Church of England as they
now stand, except such part thereof as affect the political govern-
ment of this country, be held in full force and virtue until a
further jirovision is made by the General Convention." ||
A proposition was submitted in 1791, instructing the Deputies
to vote for retaining the Articles of Religion as they now stand
in the old Book of Common Prayer, without any alterations, except
such as are of a political nature. The motion was deferred. In
1801, instructions were given to that effect. j;
'••Hawks' Contr., vol. ii., p. 330. Compilation of the Constitution, etc.
Baltimore, 1849, p. 275, \ 16.
fWhite's Memoirs, 73. J'Ibid. 69.
Iljournal, 1790, p. 39.
JiJournal, i8oi.
76 OF THE LA W OF THE CHURCH
The Convention of New Jersey, in May, 1786, after debate,
agreed to a memorial to the General Convention, in which the
following admirable passages are to be found : "Your memorial-
ists do not question the right of every national or independent
Church to make such alterations from lime to time in the mode of
its public worship as may be found convenient; but they doubt
the right of any order or orders of men in an Episcopal Church
without a Bishop, to make any alterations not warranted by imme-
diate necessity, especially such as not only go to the mode of its
worship, but also to its doctrines. Your memorialists having an
anxious desire of cementing, perpetuating, and extending the
union so happily begun in the Church, with all deference, humbly
request the General Convention that they will revise the proceed-
ings of the late Convention and their committee, and remove
every cause that may have excited any jealousy or fear that the
Episcopal Church in the United States of America has any inten-
tion or desire essentially to depart, either in doctrine or discipline,
from the Church of England; but on the contrary, to convince
the world that it is their wish and intention to maintain the doc-
trines of the Gospel as now held by the Church of England, and
to adhere to the liturgy of the said Church, as far as shall be con-
sistent with the American Revolution and the Constitutions of the
respective States." t
Among the documents of great value connected with the his-
tory of the Church in Connecticut, which I have examined, is a let-
ter from Doctor, afterwards Bishop Jarvis, dated May, 1786, which
expresses the views of the clergy of Connecticut. Among other
things, he remarks: "In the planting and growth of the Church
in America, I have always understood that the Church of E^ngland
was propagated and enlarged. Now, as our Church was in her
original a part, and is, in her formation, the image of that — if we
still adhere to the worship and doctrine, is it not proper (the ques-
tion may be, whether it be not needful) to declare so authorita-
tively? I would, then, submit the toUowing particulars: I. That
it.be recommended to the Bishop to call a convocation, at which a
resolution should be moved that we adopt the liturgy of the
Church of England entire, except the prayers for the State, and
the offices appointed for state days; or with some few abbrevia-
tions, such as will do no injury to he sense, order, or connection
of the whole. 2. That some particular prayers be added to those
for speci.1l occasions, viz: for sick children, for persons under
affliction for the death of friends, and for persons bound to sea,
etc. 3. That such of the rubrics as we have found it necessary to
deviate from, be altered where some alteration only is wanted; or
others made, that are necessary to render our service and practice
strictly rubrical and uniform. 4. That there be a revision of
the canons, and such as are applicable, or may be made so, be
selected; and in matters for which it is needful to provide entire
fProceedings of the Convention N. Jersey : Trenton, 1787.
APPENDIX A. 77
new ones, suitable to the state and circumstances of our Church,
that such be provided and confirmed by act of convocation."
In the year 1814, the following important act took place in
the General Convention. The House of Bishops, and that of
Clerical and Lay Deputies, united in the following declaration:
"It having been credibly stated to the House of Bishops, that
on questions in reference to property devised before the Revolution
to congregations belonging to the Church of England and to uses
connected with that name, some doubts have been entertained in
regard to the identity of the body to which the two names have
been applied; the House think it expedient lo make these declara-
tions, and to request the concurrence of the House of Clerical and
Lay Deputies therein, viz. : That the Protestant Episcopal Church
in the United States of America, is the same body heretofore
known in these States by the name of the Church of England;
the change of name, although not of religious principle in doc-
trine, or in worship, or in discipline, being induced by a charac-
teristic of the Church of England, supposing the independence of
the Christian Churches under the different sovereignties, to which
respectively their allegiance in civil concerns belongs. But it
would be contrary to fact for any one to infer that the discipline
exercised in this Church, or that any proceedings therein, are at
all dependent on the will of the civil or ecclesiastical authority of
any foreign country."
I add, in the note, the valuable and strong authority of Bishop
White to the point now urged, as well as some other opinions. I
would call attention to the perspicuous statement of the proposi-
tion by the late Thomas Addis Emmett.*
It appears to me difficult to overrate the force of the resolu-
tion of the Houses in 1814, and the similar proceedings in the
States which have been mentioned. By the decided voice of the
Church, separately expressed in Virginia and Maryland, and then
uttered by the representative body of the whole Union, the iden-
■■' "In all the deliberations of the convention, the object was the perpetua-
tion of the Episcopal Church, on the ground of the general principles which
she had inherited from the Church of Kngland, and of not departing from
them except so far as local circumstances required, or some very important
cause rendered proper. 'l"o those acquainted with the Church of England, it
must be evident that this object was accomplished on the ratification of the
Articles."
Again, "The political prayers were superseded, (by the revolution,; and
the using them was punishable by events brought about in the course of
Divine providence. To pray for our civil rulers was a duty bound on us by a
hijjher authority than that of the Church, t In all other respects, I hold the
former Ecclesiastical system to be binding. The conventions of our Church
have always acted on the same principle, except that of October, 1789, whose
adoption of a different principle has rendered our Liturgy much more imper-
fect laccording to my opinion) than it would otherwise have been." (Appen-
dix to Wilson's Life of Bisliop White, page 347.)
After speaking of Dr. Black wall, he says, "He is of opinion, with the
House of Clerical and Lay Deputies, in 1789, that our Church possesses no
institutions until made for her specially. If the matter had been so understood
fSee the admirable Thanksgiving Sermon of Bishop Stillingfleet, 1694.
78
OF THE LA W OF THE CHURCH.
tity of the Church of England with our own was proclaimed. In
what then did this identity consist? How was it that the Pro-
testant Episcopal Church in Virginia and Maryland continued to
be the owners of that property, which was once vested in the
Church of England in the colonies? Was it because the Liturgy
was retained with several modifications — because the Articles were
republished with some variations — because the faith was adhered
to; or \yas it because the whole compact body of the English
Church, in all integrity— as far, and in every particular as far, as
it was not necessarily, or by express enactment, changed, was con-
tinued and perpetuated?
That Church comprehended, as integral portions of its very
existence, not merely Articles and Eiturgy, but laws and canons
at .the close of the revolutionary war, and there had been among us such
spirits as I can now designate, it would have torn us to pieces." Ibid. 348.'
In the Memoirs of the Church p. 175; the Bishop goes through the dis-
cussion upon the Book of Common Prayer in the year 1789, and states the
different principles upon which the House of Clerical and Lay Deputies and
the Bishops proceeded. In the practical result, the views of the Bishops were
carried out. The English book was made the basis. It was to remain, except
as altered.
See also his work on the Comparative View of the Calvanistic and Ar-
iiiinian Coiitro7iersy, vol. 2, page 191. So in the Memoirs of the Church he re-
states the position, and urges many reasons in its support, that what is now
called "the Episcopal Church in the United States of America, is precisely in
Succession the Body formerly known as the Church of England in America,
the change of name having been a dictate of the change of circumstances in
the civil constitution of the country."
The opinion of the House of Deputies in 1789 was in opposition to that of
the Bishops, and Dr. Wilson Life of Bishop White, p. 141; remarks, that this
differed from the course taken both by previous and subsequent conventions,
and being confined to one House, and not at any time afterwards pursued,
cannot be regarded as a determination against the principle adopted by the
Bishops.
Dr. Hawks (Constitution and Canons, p. 265) observes, "The opinions
which were entertained in the mother country, and the decisions which had
been made on matters of ecclesiastical law, or usage, up to the severance of
these colonies by the Revolution, were, as far as applicable, held to be the
guide of the Church of England here, and although the independence of
the United States dissolved the connection, it evidently did not destroy the
prevailing opinions among Churchmen as to matters and usages touching the
Church. To the common and canon law of England we must therefore look,
if we would fully understand the oiigin of much of the law of our own
Church."
1 add a passage from the argument of Mr. Emmet, in the case of the Rev.
Cave Jones, Report of the Case, etc , p. 493. New York, 1813,) "No man
could be permitted to say, that nothing was permitted or restrained as to any
particular matter in a newly erected state, since its own immediate legislature
had passed no law or ordinance respecting it. The answer would be: the law
which regulates it is prior to the existence of our state; it comes to us by
inheritance from our fathers, and we brought it with us into this association.
So it is with our ecclesiastical government. In organizing and becoming mem.
bers of the Protestant Episcopal Church in America, no one considered him-
self as becoming a member of a new religion, or as adopting a different form or
rules of ecclesiastical government, except so far as depended upon the connec-
tion in England between Church and Staie, and the regulations in that country
produced by the king's being the head of the Church. These were all neces-
sarily rejected as being inapplicable to our situation; but in every other
respect, the rules and laws of our Mother Church, where they can be applied,
are the common law of our own religious association."
APPENDIX A. 7g
for discipline and rule. On what possible ground can this identity
be asserted, if the latter important fundamental element of iden-
tity is discarded?
Again, Another argument may be used which strikes me as of
great weight. It is stated by the highest authority, that "in every
Church, whatever cannot be clearly determined to belong to doc-
trine, must be referred to discipline; and that this Church was far
from intending to depart from the Church of England in any
essential point of doctrme, discipline, or worship, or farther than
local circumstances require." '■•
Let us ascertain what is the sense of the term " discipline,"
when used in ecclesiastical writings.
It has, I apprehend, two meanings: First, The administration
of punishment for offenses. Next, The regulation and govern-
ment of the Church. The following passage from Bishop Gibson
affords an illustration of the first meaning: "The very office of
consecration, so often confirmed by parliament, warrants every
Bishop, in the clearest and fullest terms, to claim authority by the
Word of God, for the correcting and punishing of such as be un-
(|uiet, disobedient, and criminous, i. e., for the exercise of all man-
ner of spiritual discipline J''' t
The other meaning is of more importance to the present argu-
ment. In the preface to the English Book of Common Prayer
(2d and 5th Ed. VI., "Of Ceremonies, why some be abolished and
others retained,") is the following clause: "Although the keeping
or omitting of a ceremony, in itself considered, is but a small
thing, yet the wilful and contemptuous transgression of a common
order and discipline is no smalt offense before God."
Again, ' And, besides, Christ's Gospel is not a ceremonial
law; but it is a religion to serve God, not in the bondage of the
figure or shadow, but in the freedom of the spirit, being content
only with those ceremonies which do serve to a decent order and
godly discipline."
The Book of Common Prayer received some alterations after
the accession of James, and in the proclamation of that monarch is
the following sentence: "And now, upon our entry into this realm,
being importuned with informations of many ministers, complain-
ing of errors and imperfections in the Church here, as well in
matter of Doctrine as of Discipline," etc. J
And in the statute (I3th-I4th Charles II., \ i,) the publication
of all books bringing into contempt the Doctrine or Discipline of
the Church of England is prohibited.
But I do not find anywhere a passage more admirably illustra-
tive of this subject, than in the preface to the Canons to the Scot-
tish Church, adopted in 1839: "The doctrines of the Church, as
founded on the authority of Scripture, being free and immovable.
■•'Preface to the Book of Common Prayer, i6th October, i;
"fGibson's Codex, vol. i, p. 18.
^Statutes at Large, vol. 2, p. 438.
8o OF THE LA W OF THE CHURCH
ought to be uniformly received and adhered to, in all times and all
places. The same is to be said of its government, in all those
essential parts of its constitution which were prescribed by its
adorable Head. But in the discipline which may be adopted for
furthering the purposes of ecclesiastical government, regulating
the solemnities of public worship as to time, place, and form, and
restraining and rectifying the evils occasioned by human de-
pravity, this character of immutability is not to be looked for."t
Now, what did the discipline of the English Church compre-
hend? It embraced the establishment and prescription of the
Book of Common Prayer, to be used throughout the realm; the
adoption by ministers of, and subscription to the articles of faith;
the regulation of rites and ceremonies by canons and rubrics;
and just as much, just as fully and absolutely, did it comprise the
whole body of ecclesiastical law by which the Church, in all other
particulars, was controlled and directed. That this whole body
of discipline was the rule of the colonial church, with the una-
voidable qualifications before adverted to, is a point which ad-
mits not of dispute.
When, then, we find our Church declaring, in one of its most
solemn acts, that all which is not of doctrine is of discipline; that
she meant not to depart from the Church of England in doctrine
or discipline, farther than local circumstances required; when we
find that the body of English ecclesiastical law was an undoubted
part of discipline in that Church and in the colonial church;
when we find no discrimination made between what of discipline
is l)inding and what is annulled, the conclusion seems irresistible,
that this law, with necessary modifications, retained the same
authority after the Revolution which it possessed before.
And what advantage can we reap by sroeriug the tie with the
Church of England, in this particular, when the wisest of our
fathers cherished the connection in every other, as the pillar and
foundation of truth? Far from their thoughts and feelings was
that pride of isolation and arrogance of judgment, which would
treat the Catholic Church as the newly-reared fabric of its mem-
bers' will; "as if it were a body in itself, indebted to no one, re-
lated to no one, without fathers, without brethren — as if it had
fallen, like the Roman sacred shield, immediately from Heaven."
And what advantages do we not lose, when we disclaim this
healthful and time-honored union? Looking at the question
merely as a lawyer and searcher for truth, we abandon, (and for a
dim untrodden path,) the road illumined by the shining lights of
English intellect in the Church and on the bench. For our in-
struction and guidance we have the well-known names of Coke,
Holt, and Hardwicke, of Nichols, Stowell, and Lee, in the tribu-
■\A/>iitt Bums' Ecc. Laiv by Phillimore, vol. 415. Hooker thus uses the
term, "As we are to believe forever the articles of evangelical doctrine, so the
precepts and discipline we are in like sort bound for ever to observe."
The following occurs in an oration of Cicero, " Haecgitur est tua Discipi-
ina, sic tu instituis adolescentes?" — Pro Calo.
APPENDIX A. 8i
nals of justice; of Ridley, Gibson, Stillingfleet, and a cloud of
others, among the English cononists. Under their auspices, we
shall find "happier walls" than our own abilities can rear, or our
own fancies can devise. Here we may attain to certainty, the
mother of quietness and repose.
The result of the preceding investigations, it is submitted,
is this:
First. That the body of the foreign canon law is presump-
tively without force or authority in England; and that in every
particular case where it is sought to render one of its regulations
available, the burthen of proving that such regulation had been
adopted in England, rests affirmatively upon the party adduc-
ing it.
That the legatine constitutions of Otho and Othobon stand
upon the same footing.
Second. That the provincial constitutions have the presump-
tion of legality and obligation attending them; and ivlienei'er ap-
pluable to a given case, impose the task upon the adverse party of
showing why tJiey should 7tot prniail.
Third. That in addition to these elements of law, the statutes
of the realm, the decisions of the civil tribunals, the cases and
precedents in the spiritual courts, made up the body of that
system of regulations known as the Ecclesiastical Law of Eng-
land.
The comments and writings of eminent men were also sources
of information: and all these, except the statutes, formetl the tes-
timonials and witnesses of the common law of the Church, in the
same manner as similar records and reports are the evidences of
the common law of the realm.
Fourth. That the canons of 1603, as well the acts after the
Reformation, also constituted a portion of that law binding upon
the clergy, but only binding upon the laity where admitted by
long custom, or express recognition of the civil tribunals.
This, then,' formed the great body of the English ecclesiastical
law, when the Church was planted in this country; and this con-
stituted the body of the law of the Church in the colonies. Many
modifications arose from specific provisions of charters, or particu-
lar laws of the colonial assemblies, as well as from those changes
in the situation of the people and usages of the community, which
rendered some provisions incompatible or inapplicable. Then
came the Revolution. It brought with it many necessary altera-
tions in the law and discipline, as it did in the liturgy of the
Church. These have become sufficiently defined in our system.
And then the constitution of the Church at large, and the organi-
zation of the several dioceses, have led to a body of regulations
partly original, partly adapted ; and these, with statutes of the
civil authority, cover a very extended field of law.
But there will yet remain many cases not provided for. In
these, I submit, we are to ascertain what was the law of the
AP.— 2.
82 OF THE LAW OF THE CHURCH
English Church. By that, such cases are presumptively to be de-
cided; leaving it to be shown that such law is repugnant to some
principle, settled custom, or institution of our own, secular or
ecclesiastical.
Again, — another proposition results from these views, which
it is supposed will meet with little objection: that upon every
question of construction of a phrase or precept, its admitted ac-
ceptation in the English law is to prevail, until otherwise ex-
pressly interpreted.
I may state the result in these propositions:
1. The English canon law governs, unless it is inconsistent
with, or superseded by, a positive institution of our own.
2. Unless it is at variance with any civil law or doctrine of
the State, either recognized by the Church or not opposed to her
principles.
3. Unless it is inconsistent with, or inapplicable to, that posi-
tion in which the Church in these States is placed.
And let it not be thought, that in this loyalty to the English
law, we abjure the liberty of a National Church, or admit a sub-
serviency to a foreign authority. We do not break in upon the
principle embodied in the statute 25 Henry VIII., and asserted in
the noble language of the declaration of liberties of the Church in
Maryland.
In submitting to the guidance of English authority, we render
no other allegiance than every honest judge in the land renders to
the decisions of Westminster Hall in civil matters. "These de-
cisions are the witnesses and testimonials of the law, liable to be
discredited, open to controversy; but standing, until this is done,
sure and faithful witnesses. So the cases in the ecclesiastical
courts are the credible expositors of English canon law; and it is
that law to which we are to resort for guidance in all unsettled
points. We shall find this submission more useful and more noble
than the license and the anarchy of an unrestricted, undirected,
and unenlightened judgment.
Yet it is not that the foreign canon law is to be disregarded.
That of which Lord Stowell declares, that " whatever maybe
thought of its pretensions to a divine origin, it is deeply enough
founded in human wisdom: " — that which continues to influence
even the stern features of the Scottish Reformation, may not be
contemned.* But let it be resorted to with caution, and watched
with the jealousy of the great doctors of the English Church.
"It sprang from the ruins of the Roman empire, and the power of
the Roman jiontiffs," and partakes largely of the spirit of abso-
lutism which might be expected from its origin.
■■■See Ferguson's Consistorial Law 0/ Scotland. Introduction.
pPPENDIX B.
OF THE CANONS OF THE CHURCH.
Upon this question of the force of the canons of the General
Convention of 1789, and the power of that body to pass them,
there are two theories. One is, that the convention had as ample
power to pass these canons, as it had to adopt a constitution; the
other, that the authority was assumed, and the canons became the
law in the several states only when actually ratified, or from long
acquiescence and submission.
It must again be noticed, that most of these canons are not to
be supported upon any clause of the Constitution — were framed
irrespective of it — and were actually passed before the Constitution
was adopted.
Let us consider the consequences of the doctrine that the
canons became the law only by ratification or acquiescence. By the
one or the other, they became the settled law of the whole Church
of the United States. What power, then, had any subsequent
General Convention to repeal or modify them? Was not any act
of repeal or modification in itself invalid, only capable of receiv-
ing validity from express sanction, or long submission?
And in the absence of express sanction to the repeal, what
length of time would have amounted to proof of acquiescence, so
as to render the repeal binding? If an express sanction to any set
of canons had been given by a diocese, would it amount to a per-
mission, or a compact? If the former, it was at any moment revo-
cable. Would the revocation of an assent to the repeal have rein-
stated the repealed canons?
Again, — The original canons were, by a compact of the whole
Church, (at least in the ten states,) the general law. If the General
Convention could not repeal them, neither could any number of
dioceses short of the whole, or short of a majority. Was the re-
peal in abeyance, until all or a majority had acted, or until such
a period had elapsed as warranted the presumption of the assent
of all?
84 OF THE CANONS OF THE CHURCH.
Once more, — If the canons of 1789 depended for their obliga-
tory power upon recognition positive or implied, then clearly in
the latter case, and probal^ly in the former, every diocese could
supersede them, and estaldish a different law of its own upon the
very subject matter of those canons.
From such difficulties, contradictions, and discordancies, what
refuge have we except in that other and more comprehensive
theory of the power of the General Convention of 1789? It may
thus be stated: That convention, under the powers given to its
delegates, strengthened by the ratifications of the dioceses, (even
if strictly needless,) was constituted and approved as a body of
supreme absolute power, to establish an ecclesiastical government
for the whole Church of the United States. It seems useless to
advert to the few limitations upon this power. Now it appears to
me a clear proposition, thit the authority to frame a whole code
for the government of the Church could have been lawfully carried
into effect, both by a constitution concentrating fundamental prin-
ciples and perpetuating an organization, and by canons adapted to
meet the various cases and details of government. The conven-
tion was equally competent for both. It could, by the very letter
of its commission', have inserted in a constitution all regulations
"respecting both the doctrine and discipline of the Church;"
and if it could do this, it could embody such of them as it thought
proper in a code of canons.
The question, then, before the convention of 1789, was one
of selection and division; viz.: what points of government should
be inserted in a constitution, (only to render them more stable,
and the difficulty of altering or reversing them greater,) and what
should remain in the shape of laws alterable at any meeting.
SECTION 3.
Assuming the soundness of this theory, we establish the binding
force of the canons of 1789, but are yet to ascertain what is the
power of subsequent General Conventions in relation to the laws
of the Church — whence they have derived their power, and what
is its extent? This was the second subject of examination.
The answer is plain. The development of the foregoing propo-
sitions inevitably leads to the conclusion that the power of the
Convention of 1789 involved the power of rendering the system of
government stable and enduring. Its office was not to establish
a fugitive coalition, but a perpetual union. It possessed there-
fore the right of instituting and providing for the continuance of
a body, with similar jurisdiction to its own; a body in which
should reside all authority necessary for the purposes, and com-
mensurate with the object of the Church; a body essentially of
superior ultimate jurisdiction. Such a body was established v\ hen
it was declared " that there should be a General Convention of
APPENDIX B. 85
the Protestant Episcopal Church of the United States." Pro-
vision was made for its renovation and perpetuity; the elements of
its organization were prescribed, and certain self-imposed restric-
tions were proclaimed.
There is another and higher view of the question. From the
foundation of Christianity there never has been a Church without
a. body in which resided the ultimate and absolute power of gov-
ernment. In its earliest age, even two apostles would not assume
the office of deciding the ([uestion raised at Antioch as to the cir-
cumcision of the Gentiles, but referred it to the judgment of the
Council at Jerusalem. Passing by the grtal representation of the
Church universal in the four first Councils, what national or pro-
vincial Church has ever been known without such a predominant
body? It is anomalous and contradictory to speak of such a
Church without it. When then, in 1789, the whole Church of
the United States, through its competent representatives, declared,
"there shall be a General Convention of the Protestant Episcopal
Church in the United States," it enunciated the great j)rinciple
that this was a National Church, and that such a Convention was
lo be its highest Council. The mere act of establishing this Coun-
cil involved and attached to it every power inherent in such a
body, and not expressly refused to it. Such powers are to be
ascertained from the laws and practice of the apostles, the voice
of ancient witnesses, the uninterrupted descent from age to age,
from council to council, of known, and exercised, and unques-
tioned sway.
On the very day that the Constitution went into effect the
Church in the United States had all the essential elements of a
National Church. It had its Bishops. It had three Bishops
within its limits, competent to transmit the succession and suf-
ficient to compose a Synod.* The earnest objections of the clergy
of Connecticut strongly set forth in the letter of the Rev Mr.
Jarvis of 1783, and urged with such power in the address of the
Convention of New Jersey in 1786, had been removed.! AH
the elements of a primitive apostolic Church in its perfection had
been acquired. Imperfection existed in an undue conventional
restriction of the power of the Bishops, and in other details; but
the seeds of truth and primitive order were there, and gradually
ripened, expanded, and prevailed.
In this situation, on the 2d October, 1789, the Constitution was
adopted. On the ^d of that month it was resolved that agreeably
to the Constitution, there is now in the convention a separate
House of Bishops, and the Bishops then withdrew. On the 5lh
'^•On the 5th August, 1789, a resohition w:is unanimously ailopted, tliat a
complete order of Bishops, derived as well under the Knglish as the Scottish
line of Episcopacy, doth now suhsist within the United States of America, in
the persons ot the Rt. Rev. William White, the Rt. Rev. Samuel Provoost, and
the Rt. Rev. Samuel Seabury. — Journals of the Gen. L'onv. p. 53.,
^Memoirs 0/ the Church, '.32. Ibid. 357.
86 OF THE CANONS OF THE CHURCH.
October, the House of Bishops met, and it was provided that the
senior Bishop should be the president.
What then prevents the conclusion, that thus was instituted
the superior council of the Church of the United States? Not
because there was no prelate anwering to the Archbishop, or
Metropolitan, found in provincial councils. In relation to such
assemblies, he was no more than the summoning and presiding
officer. The Bishops in council could overrule him, and he could
not dissolve a meeting without their consent. Not because the
inferior clergy formed a part ot the council, with an equal voice in
the enactment of laws. There are traces of their presence in
almost every period, whatever may have been the extent of their
power. But in England, especially since these bodies assumed the
form of convocations, they have had a co-ordinate authority in
this particular. In the province of Canterbury, also, they delib-
erated in a separate chamber. Nor again can it be, because the
laity were admitted as members with a concurrent power in the
making of canons.
Without entering into that discussion which the work of Sir
Peter King produced, I content myself with the highest authority
on one side of the question known to the American Church — that
of Bishop Seabury. The main point of his objections to the intro-
duction of the laity, contained in his celebrated letter of 178!;,
was their power to sit upon the trial of Bishops and Presbyters.
But he united in a constitution which gave them co-equal authority
in the formation of laws for the general Church, and he consented
to their introduction into the Convention of Connecticut. This is
sufficient to prove, that in the judgment of that eminent prelate,
the presence and power of the laity in councils was no violation of
the principles of a primitive Church, if not literally in accordance
with primitive practice.*
We must distinguish between the Convention of 1789, and the
General Convention established by it. The former was an imper-
fect body, constituted to legislate for an imperfect Church ; but
with power, when there were Bishops of the Church, to institute
an organ for continuing and administering its government. The
Bishops, two of them by their actual presence and participation,
and the other by his then implied and subsequent express ratifica-
tion, united in the formation of that body. These Bishops sub-
mitted to certain modifications of the model of a national or pro-
vincial council. In their judgment, these changes were compatible
with the apostolic lonstitution of the Church; and when the con-
vention of 1792 assembled, it met as the pre-eminent synod, as the
Protestant Episcopal Church of the United States by representa-
tion. And amongst its acts, at that meeting, was the republica-
tion, or re-enactment, of the canons of 1789. {Jotirnals, 1 792,
BlOREN )
'■'I refer to a note to the Articles of the Constitution post. Title 2, for au-
thorities as to the composition of these councils, and in support of the above
position.
APPENDIX B. -- 87
The remarks on this most important subject have been much
extended — a few observations will conclude them. In 1786, a
constitution was first announced, and the deputies say, that "tak-
ing into consideration the importance of maintaining uniformity
in doctrine, discipline, and worship in the said Church," they do
declare and determine "that there shall be a General Convention
of the Protestant Episcopal Church in the United States." Such
was the article as adopted in 1789, and thus has it continued
since. Now, what could possibly achieve the object of maintain-
ing uniformity in discipline and worship, but this principle of ulti-
mate authority in some constitutional body? What else could
fulfill the primitive law of unity and perfection in a National
Church — what else could have met the difficulties and exigencies
of those days? Nothing saved us then, nothing but this can save
us now, from being the dissevered members of separate congrega-
tions, and not the compact body of a National Church. I know
there are some who look upon this union with distrust, and others
with indifference; but the holiest and wisest of our fathers toiled
for and prayed for it day and night — sorrowed as the cause was in
tribulation, and rejoiced with joy unspeakable when it prospered.
I believe that in spite of much that has been wrong, and more
that has been imperfect, the prophetic visions of spiritual growth
and beauty which arose upon their faith-brightened eyes, have
been realized in the history of the Church, and realized through
union.
Thus we have a theory of the power of the General Conven-
tion, adequate, consistent, and practical. There is neither safety,
union, nor progress in any other; but there is every element of
discord, and every omen of decay. I humbly trust that it will be
found as well fortified by facts and argument, as it is simple and
decisive.
And as to those dioceses which have subsequently come into
union, the provisions of the fifth article of the Constitution
coupled with (though not receiving their force from) the declara-
tive recognitions in the constitutions of such dioceses, give to tlie
General Convention the same full authority and legislative power.*'
It has been before observed, that the great bulk of the canons
cannot be supported upon the ground that the power to pass them
'■•'The following is the form, with slight verbal changes, in the Constitu-
tion of North Carolina, (ieorgia, Mississippi, Louisiana and Ohio: — "The Pro-
testant Episcopal Church in this State, adopts, accedes to, and recognizes the
general constitution of the Protestant Episcopal Church of the United States,
and acknowledges its authority accordingly." In the constitution of Missouri,
it is thus: — " This Church acknowledges the authority ot the General Con-
vention of the Protestant Episcopal Church in the United States of America."
Of Wisconsin: — "The Church in the diocese of Wisconsin, desirous of enter-
ing into federal union with the Protestant Episcopal Church in the United
States of America, does accordingly accede to, recognize, and adopt the gen-
eral constitution and canons of that Church, and acknowledges its authority
accordingly." There is a similar clause in the constitution of South Carolina.
There is none in that of Maine, New York, Western New York, or Maryland.
S8 OF THE CANONS OF THE CHURCH.
is derived from any clause of the Constitution. This point re-
quires further consideration.
Looking to the source of the power of the delegates, by whom
the Constitution and canons were formed, we might be led to the
supposition that the analogies of the Constitution of the United
States would prevail; and that the quest on upon any law of the
convention would be, whether the power to make it had been ex-
iiressly granted, or by a necessary implication was vested in it un-
der some clause of the Constitution.
But this rule of construction will be found inapplicable. It is
impossible to find in that instrument, either in express language,
or by any warrantable inference, any provisions on which to rest
the validity of the greater part of the canons. Every power right-
fully exercised by the Government of the United States in any of
its branches, has its source and its bounds in some clause of the
Constitution of the United States; but it would be vain to seek
for such a sanction for most of qwr canons.
For example: — The present 37th canon defines the offenses for
which a minister may be tried and punished. By other can/ as prm.
OF THE CONSTITUTION.
We are thus brought to the question: — In what attitude did
the churches in the several States stand to each other, in entering
on this work of once more uniting? The question is one of fact;
and the testimony woukl seem to leave no doubt that in each
State, the Church considered itself an integral part of the Church
of Christ, perfectly independent, in its government, of any and
every branch of the Church in Christendom. Such an opinion
would the more readily be adopted, from the fact, that the several
states considered themselves in their civil relations, as independ-
ent sovereignties, and as such, sought to find a bond of union,
first in the articles of confederation, and afterward in the Federal
Constitution. Many of those who were employed in laying the
foundations of our civil polity, were also aiding by their councils
in the establishment of our ecclesiastical system; and hence it is
not surprising that there should be found not a few resemblances
between them. We present now the facts, that show the sense of
independence, entertained by the Churches in the several states.
The Constitution was not finally adopted until October, 1789.
Let us examine the steps that preceded it: and first, as to tht inde-
pendent action of the States.
As early as March, 1783, before any general meeting had been
held, or any proposition made from any quarter for a union, the
Church in Connecticut proceeded to organize itself; and to carry
out its purposes, the clergy of tliat State elected Dr. Seabury
their Bishop, and he proceeded to Europe for consecration. This
he obtained in November, 1784, at the hands of the Bishops of
the Scottish Episcopal Church, and returning to this country, he
was recognized by the clergy of Connecticut as their Bishop, in
August, 1785.
In August, 1783, Maryland moved in the business of her or-
ganization. This also was before any general meeting, or any
proposition for such a meeting. The principal work of this Con-
AP.— 4.
98
OF THE CONSTITUTION.
vention in August, was the setting forth " a declaration of certain
fundamental rights and liberties of the Protestant Episcopal
Church in Maryland^ The first clause of this declaration places
the opinion of the Church in Maryland, as to her independent
character, beyond all doubt. It is as follows: "We consider it as
the undoubted right of the said Protestant Episcopal Church, in
common with other Christian churches under the American revolu-
tion, to complete and preserve herself as an entire Church, agreea-
bly to her ancient usages and professions; and to have a full
enjoyment and free exercise of those purely spiritual powers, which
are essential to the being of every Church or congregation of the
faithful, and which, being derived from Christ and his apostles,
are to be maintained independent of every foreign or other juris-
diction, so far as may be consistent with the civil rights of so-
ciety." In June, 1784, Maryland repeated her declaration, and
acted on her independent principles.
In May, 1784, Pennsylvania acted, and appointed "a standing
committee of the Episcopal Church in this State," and authorized
them " to correspond and confer with representatives from the
Episcopal Chtirch in the other States, or any of them : and assist in
framing an ecclesiastical government." This was the first step
taken toward an union of the churches in the States generally. At
this meeting also Pennsylvania set forth her fundamental prin-
ciples.
In September, 1784, Massachusetts acted as an independent
Church, in framing certain articles, in which the right of each
State separately to apply abroad for the episcopate, is distinctly as-
serted. This also was before any general meeting of the churches
from the States.
The standing- committee appointed by Pennsylvania, did corre-
spond and confer with Churchmen in the other States; so that on
the 6th of October, 1784, the first general meeting of Episcopalians,
to adopt measures for an union, was held in New York. At this
meeting, representatives were present from Massachusetts, Rhode
Island, Connecticut, New York, New Jersey, Pennsylvania, Dela-
ware, and Maryland. From Virginia, Dr. Griffith was present by
permission. He could not sit as a delegate, because Virginia (a
State which, through its whole ecclesiastical history since the
revolution, has always asserted its independent diocesan rights,)
had forbidden by law her clergy to interfere in making changes in
the order, government, worship, or doctrine of the Church. Vir-
ginia asserted the entire independence of the Church within her
limits of all control but her own.
At this meeting for conference (it was nothing more,) but one
opinion prevailed, as to the light in which the Churches in the
several states were to be viewed. It was recommendad to the
states represented, and proposed to those not represented, to or-
ganize or associate " themselves in the states to which they respect-
ively belong, agreeably to such rules as they shall think proper: "
and when this was done, not before, they further recommended
APPENDIX C. gg
and proposed, that all "should unite in a general ecclesiastical
constitution." As the Vjasis of this Constitution, they proposed
certain "fundamental principles," in which the independent char-
acter of the Church in each State, is fully recognized. They also
invited the churches in the several states to send delegates to a
future general meeting, for the purpose of accomplishing an union.
Pursuant to this recommendation and proposal, some of the other
States acted.
Early in 1785, the clergy of South Carolina met, and agreed to
send delegates to the next general meeting, but in complying with
the invitation to co-operate in the measures necessary to effect a
general union, they accompanied their compliance with an une-
quivocal proof of their sense of the independence of the South
Carolina Church, for they annexed to it an understanding that no
bishop was to be settled in that State.
In the summer of 1785, New York and New Jersey appointed
their respective delegates, and in September of that year the gen-
eral meeting was held.
At this meeting, the proceedings were such as show that the
churches in the several States were deemed independent. Thus
the first vote of the assembled body was taken liy States, and the
principle was formally recognized of voting, not individually, but
by States. A committee was appointed, consisting of one clergy-
man and one layman, from each State represented, to prepare and
report an ecclesiastical constitution, "for the Protestant Episcopal
Church in the United States of America:" and this is the second
instance, in which the whole of the Episcopal churches in this
country, are spoken of collectively as one body, or religious com-
munity, the first being in the fundamental articles proposed in
October, 1784.
The insrument then proposed and adopted, in conformity with
the "fundamental principles," before propounded at the first meet-
ing, is the basis of our present Constitution, and repeatedly speaks
of the " church in each State," and in its final article, provides that
" this general ecclesiastical constitution, when ratified by the
Church, in the different States, shall be considered as fundamental,
and shall be unalterable by the Convention of the Church in any
State." This general constitution, however, as Bishop White in-
forms us, did not form a bond of union among the churches
throughout the land, for it stood upon recommendation only; and
the real and only bond, by which all the Episcopal congregations
in the country were held together,- until 1789, was in the common
recognition of the thirty-nine articles.
It would seem, then, that the churches of the several States
came together as independent churches duly organized, and so con-
sidered each other, for the purpose of forming some bond whereby
they might he held together as one religious community through-
out the whole United States.
We have said the churches of the several States convened:
from this remark, however, Connecticut must be excepted, for she
100 OF THE CONSTITUTION.
had pursued her own course as an independent part of the Chris-
tion Church; having sought, (as she had a right to do,) the episco-
pate for herself; and after obtaining it, she furnished one of the
plainest proofs of the general sense of American Episcopalians to
the independent character of the churches in the States: for it was
after negotiation with the General Convention in 1789, that Con-
necticut came into union as a Church fully and duly organized
with a bishop, priests, and deacons.
We next inquire what was the mode by which they proposed to
accomplish this desirable end? Did they merely purpose to estab-
lish a concordat or mutual and fraternal acknowledgment of each
other, among these independent churches? Did they mean to
make nothing; more than a league between them, thus forming them
into a simple confederacy? They went far beyond this: they de-
signed to do so, and most wisely. What was it that the revolution
had destroyed? Not unity, but union. They had been but one
church, their wish was to return to union, and to supply the bond
for that purpose, of which the casualties of war had deprived
them. They declared that they came together "in order to unite,''''
and placed this declaration as a preamble to the very instrument,
by which they sought to accomplish their end. To unite in what?
They answer for themselves; — " in a constitution of ecclesiastical
government:" that is, in a system of polity to be of general force
and application. Indeed, there was nothing else in which they
could unite, for in all other matters they were already one. It is
an error of dangerous tendency, to the harmony and stability of
the Protestant Episcopal Church in the United States, to take any
other view of the plans and purposes of those who met to form
her Constitution.
But an union between parties perfectly independent may be
formed upon various terms and conditions. Every independent
right may be surrendered, or some only may be given up: so, too,
a greater or less equivalent may be given for such surrender: we
next ask, therefore, what were the terms of the union agreed on?
In other words, what is the true meaning of the Constitution?
The instrument itself can, of course, be expected to do no more
than present certain great general principles. It cannot provide
by express declaration for each case specifically, for this would
make it rather a statute book than a Constitution; whereas, its
true purpose is to furnish certain guides to action, in the future
formation of a statute book. Its interpretation, therefore, should
be liberal, and rather according to its general spirit, than to its
strict letter, when the rigor of literal interpretation would tend to
defeat the great end of ?«/?Vw, contemplated by its framers. Let
it never be lost sight of, that in all such matters, as fairly arise un-
der this general constitution, the polar star in interpretation is,
that it was made for the purpose of binding us all to "walk by
the same rule." And yet it must also be remembered, that no lib-
erality of interpretation should so stretch its powers, as virtually to
destroy those diocesan rights, that are as essential to our well-
APPENDIX C. loi
being, as union itself. The experience of our civil history, shows
that few points are more difficult of adjustment, than the respect-
ive rights and powers of the State and general governments. A
similar difficulty, to some extent, exists in the polity adopted by the
Protestant Episcopal Church in the United States: for the analogy
between the two forms of government is, in some particulars, very
close, and was made so intentionally. In the government of the
United States an ultimate arbiter in intepretation is provided in
the Supreme Court. In the Church, however, we possess no such
advantage, for we have no tribunal that can authoritatively declare
to the whole Church what the meaning of the Constitution is.
The House of Bishops may indeed express an opinion if it pleases,
and the churches generally respect it, as they should do; but such
opinion is neither law, nor authorized judicial exposition of law.
Hitherto there has been practically but little difficulty, but it is
easy to foresee, as our numbers increase, the certainty of future
conflict. It is difficult to lay down a general principle on this deli-
cate subject, of the respective rights of the Church at large, and
the churches in the several dioceses. What is desirable is, on the
one hand, to promote such an union as is compatible with diocesan
independency; and on the other, so to uphold the just rights of
the latter, as to prevent their merger in the former.
What then did the several dioceses retain under the Constitu-
tion? They retained very clearly the following rights:
1. To organize as a distinct Church within the territorial lim-
its of each State, district, or diocese.
2. To elect their own ecclesiastical head.
3. To hold the sole and exclusive jurisdiction in the trial of
offending clergymen within their respective limits; and to prescribe
the mode of trial.
4. To hold their own ecclesiastical legislatures and make all
such laws as they might deem necessary for their well-being, pro-
vided they did not defeat the purpose of union, by contravening
the Constitution, and constitutional enactments of the Church
general.
5. To have an equal voice in the general legislation of the
Church at large.
6. To have their respective bishops subject to no other pre-
late, and to be interfered with in the discharge of their duty by no
other bishop; but in all things belonging to their office, to be equal
to every other bishop in the Church.
7. To have their several bishops of right entitled to a voice in
the councils of the Church, not as representatives of dioceses, but
individually as Christian bishops.
What did they surrender? As we apprehend, the following
things:
I. Such an exercise of independency as would permit them to
I02 OF THE CONSTITUTION.
withdraw from the union at their own pleasure, and without the
assent of the other dioceses.
2. They surrendered the right of having the bishop whom
they might elect, consecrated without the assent of the Church at
large.
3. They surrendered the right of sole and unrestricted legis-
lation for themselves, in the dioceses alone, but consented that
part of their laws should be made in a general legislature of which
they were members.
4. They surrendered the right of framing their own liturgy,
and agreed through all the dioceses to use the same, when all
should have ratified it.
5. They surrendered the right of making separately any alter-
ation in the great compact or charter of union.
These things, as it seems to us, were done by the proposed Con-
stitution of 1785. But this instrument was not binding on the
Church as its Constitution, for it was yet to be ratified by the Con-
ventions of the several States. It was accordingly sent to them
for that purpose, and much diversity of opinion prevailed in the
dioceses concerning its adoption. In June, 1786, a Convention
was held of delegates from New York, New Jersey, Pennsylvania,
Delaware, Maryland, Virginia, and South Carolina, and the Con-
stitution of the previous year underwent revision and alteration in
that body. It still, however, remained to be ratified by the several
State Conventions, and it was accordingly recommended to them,
' that they should authorize and empower their deputies to the first
General Convention, meeting after a bishop or bishops had been
consecrated, to confirm and ratify a General Constitution. They
did so, and the first Convention after obtaining the episcopate was
held in July, 1789. At this meeting the delegates declared them-
selves authorized by their respective Conventions, to ratify a Con-
stitution; and it was referred to a committee of one from each
State, to consider the Constitution proposed in 1786. It under-
went much discussion, and finally, on the 8th of August, 1789, the
Constitution was formally adopted, and became the fundamental
law of the Protestant Episcopal Church in the United States. The
work commenced at the first general meeting of Episcopalians in
October, 1784, was thus consummated in August, 1789, and during
the intervening period there was no bond holding the churches on
this continent together, but the bond of a common faith.
pPPBNDIX D.
EPISCOPACY
Is Episcopacy essential to tlu being of a CAuras^
Since we maintain that the institution of Epis«
"ment is of divine authority, it might seem to follow that it is essen-
tial to the being of a Church — that there can be no Church with-
out Episcopacy. But this does not appear to be a necessary con-
sequence. A Church may be a true Church, and yet be imperfect
or unsound, just as a man may be a real man, whose constitution is
impaired, or whose body is mutilated. There have, indeed, been
some strange applications of this analogy, which, considering the
bishop as the head of the Church, likened the case of a Church
without a bishop, to a man without a head. But this is truly a
very wild comparison. A bishop may be called, in a certain sense,
the head of a Church within a particular diocese ; although even
this phraseology is better avoided, because it is exceedingly liable
to misrepresentation. But in no possible sense can a bishop be
called the head of the Church at large, nor in the highest sense, the
head of any part of it 'Christ is the Head of the Church'
— 'the Bishop and Shepherd of our Souls.' All other bishops
are members of his body, governing and leading the rest indeed,
but always in subordination and obedience to him, who is the
'ONE Law-giver — able to save and to destroy.'
Hence, we deny, in opposition to our Roman Catholic breth-
ren, that there should be any such thing as a universal bishop — a
bishop of bishops — a vicar of Christ on earth. This is a distin-
guished and well known tenet of popery, which all Protestant
Episcopalians reject. The great Redeemer has, indeed, re-ascended
to the throne of his glory, his earthly ministry has ended; but he
is still our ' High Priest,' 'who ever liveth to make intercession
for us;' (Heb. 7: 35,) he has not left his Church, nor placed it under
the rule of any vicar-general. When he appointed the apostles to
be his representatives by saying, 'as my father hath sent me, even
so I send you,' he spoke to them all, and not to any single indi-
vidual. They had no Prince but Christ amongst them, neither
had the Church of the apostles' planting. Consequently, the
104 EPISCOPACY.
bishops of the Church are many, equal in official rank and au-
thority. The Head of the Church can be but One.
Hence, also, arises the necessity of general councils, whenever
any question occurs in which the decision of the whole body is re-
quired. But when the bishops have assembled in those councils,
their whole object has been to discover the will of the Head, even
Christ; and their decrees have always been promulgated upon the
acknowledged principle, that they were according to the mind of
the Lord, being the interpretation of his own word, under the
influence of his own Spirit.
If, therefore, the bishop of a diocese should die, the Church of
that diocese is not to be compared to a man without a head, during
the interregnum which must take place before the consecration of
a successor. And if that diocese should have to wait for many
years before the defect is supplied, it is not deprived of its place
in the body of Christ. And if, owing to any circumstances of
necessity, it should never have the benefits of that apostolic office
again, but should find itself obliged, like a mutilated man, to
make shift with its other members, still it has not lost its head, nor
has it ceased to be a part of the body of Christ, — the church
CATHOLIC, OR UNIVERSAL.
In order to set this important matter in as clear a light as I can,
within the prescribed limits of this brief treatise, I shall close this
chapter with the definition of the Church set forth by that cele-
brated man, who maintained with so much force, the divine insti-
tution of Episcopacy. I shall then discuss, succinctly, the difficul-
ties supposed to encumber this question.
'Church,' saith Hooker, (Eccles. Polity, Book 5, ? 68, p. 17 of
2d vol. London Ed. of A. d. 1825,) 'is a word which art hath
devised, thereby to sever and distinguish that society of men which
professeth the true religion, from the rest which profess it not. There
have been in the world, from tbe very first foundation thereof, but
three religions Paganism, which lived in the blindness ot cor-
rupt and depraved nature; Judaism, embracing the law which re-
formed heathenish impieties, and taught salvation to be looked for
through One whom God in the last days would send and exalt to
be Lord of all; finally. Christian belief, which yieldeth obedience
to the Gospel of Jesus Christ, and acknowledgeth him the Saviour
whom God did promise. Seeing then that the Church is a name,
which art hath given to professors of true religion; as they that will
define a man, are to pass by those qualities wherein one man doth
excel another, and to take only those essential properties, whereby
man doth differ from creatures of other kinds, so he that will teach
what the Church is, shall never rightly perform the work where-
about he goeth, till in matter of religion he touch that difference
which severeth the Church's religion from theirs who are not the
Church. Religion being therefore a matter partly of contempla-
tion, partly of action; we must define the Church, which is a reli-
gious Society, by such diff"erences as do perfectly explain the
essence of such things; that is to say, by the object or matter
APPENDIX D. 105
whereabout the contemplation and actions of the Church are prop
erly conversant. For so all knowledge and all virtues are defined.
Wherefore, because the only object which separateth ours from
other Religions, is Jesus Christ, in whom none but the Church
doth believe, and whom none but the Church doth worship;
we find that accordingly the Apostles do everywhere dis-
tinguish hereby the Church from Infidels and from Jews,
accounting them, which call upon the name of our Lord Jestis Christ,
to he HIS CHURCH. If we go lower, we shall but add unto this
certain casual and variable accidents, which are not properly of the
being, but make only for the happier and better being of the the
Church of God, either in deed, or in men's opinions and conceits.
This is the error of all Popish definitions that hitherto have been
brought. They define not the Church by that which the Church
essentially is, but by that wherein they imagine their own more per-
fect than the rest are. '
Again, ib. p. 19. 'That which separateth therefore utterly,'
continues Hooker, 'that which cutteth off clean from the visible
Church of Christ, is plain apostacy, direct denial, utter rejection
of the whole Christian faith, as far as the same is professedly differ-
ent from Infidelity. Heretics, as touching those points of doctrine
wherein they fail; Schismatics, as touching the quarrels for which
or the duties wherein they divide themselves from their brethren;
loose, licentious, and wicked persons, as touching their several offenses
or crimes, have all forsaken the true Church of God: the Church
which is sound and sincere in the doctrine which they corrupt; the
Church that keepeth the bond of unity which they violate; the
Church that walketh in the laws of righteousness which they trans-
gress; this very true Church of Christ they have left, howbeit not
altogether left, nor forsaken simply the Church; upon the main
foundation whereof they continue built, notwithstanding these
breaches whereby they are rent at the top asunder. '
And to show his meaning yet more clearly, he saith again.
Book 3, ^ I, (ib. I vol., p. 276) ' We must acknowledge even here-
tics themselves to be, though a maimed part, yet a part of the visi-
ble Church.' 'Heretics are not utterly cut off from the visible
Church of Christ. If the fathers do anywhere, as oftentimes they
do, make the true visible Church of Christ and heretical companies
opposite; they are to be construed as separating heretics, not alto-
gether from the company of believers, but from the fellowship of
sound believers. For where professed unbelief is, there can be no
visible Church of Christ; there may be where sound belief
wanteth. Infidels Ijeing clean without the Church, deny directly,
and utterly reject, the very principles of Christianity; which here-
tics embrace, and err only by misconstructions.'
From all which it is manifest, that the visible Church Universal
or Catholic, in the opinion of Hooker, includes all who I'Rokess
TO BELIEVE IN THE LoRD Jesus Christ, whatever the defects or
corruptions of their respective systems may otherwise be.
AP.— ■;.
io6 EPISCOPACY.
Hcno does this definition quadra le ivith the doctrine of our articles'^
The nineteenth article of tlie thirty-nine, defines the Church
in the following terms:
'The visible Church of Christ is a congregation of faithful
men, in which the pure word of God is preached, and the sacra-
ments be duly ministered according to Christ's ordinance, in all
those things that of necessity are requisite to the same.'
And the twenty-third article, on the calling of the ministry,
declares that ' It is not lawful for any man to take upon him the
office of public preaching, nor ministering the sacraments in the
congregation, before he be lawfully called, and sent to execute the
same. And those we ought to judge lawfully called and sent,
which be chosen and called to this work by men who have public
authority given unto them in the congregation, to call and send
ministers into the Lord's vineyard.
Now, here we have the liberal construction of our reformers,
upon the Churches in general. But when we come to the ordinal,
in which the system is set forth for the Church of England, we find
a much more precise, and primitive doctrine.
' It is evident,' saith the ordinal, ' unto all men diligently read-
ing holy Scripture and ancient authors, that from the apostle's
time there have been these orders of ministers in Christ's Church,
— bishops, priests, and deacons. Which officers were evermore had
in such reverend estimation, that no man might presume to exe-
cute any of them, except he were first called, tried, examined, and
known to have such qualities as are requisite for the same; and
also by public prayer, with imposition of hands, were approved
and admitted thereunto by lawful authority. And, therefore, to
the intent that these orders may be continued, and reverently
used and esteemed in this Church, no man shall be accounted or
taken to be a lawful bishop, priest, or deacon, in this Church, or
suffered to execute any of the said functions, except he be called,
tried, examined, and admitted thereunto, according to the form
hereafter following, or hath had Episcopal consecration or ordi-
nation.'
The general and cautious language employed in the two fore-
going articles, and the precise, full, and positive doctrine of the
rule last quoted, must strike every impartial reader, as presenting
a remarkable contrast. The explanation, however, is, to my mind,
simple and perfectly satisfactory. The reformers of the Church of
England well knew that the Episcopal system was the only one
which could fairly claim the distinction of divine authority, being
the only one established under the authority of the apostles in the
Church of Christ. And, therefore, for themselves and their par-
ticular branch of the reformation, since the good providence of
God had put it in their power, they were determined to preserve it
unimpaired, and not to allow it to be troulded by any invasion.
But they had before their eyes the continental Churches of France,
Germany, Switzerland, and Holland, which had not the means of
APPENDIX D. T07
perpetuating this primitive system, and which had been con-
strained by the necessity of their local situation to adopt a novel
and defective plan for their ministry. Believing that this defect,
in such peculiar circumstances, was allowable, the framers of our
articles took the broadest latitude with respect to the lawfulness of
the course pursued by the other reformers; and thus placed on
record a beautiful memorial of a truly Christian spirit, excusing
with the kindliest allowance, the very deficiencies of their breth-
ren, while they asserted the strictest and most uncompromising
principle for themselves.*
In order to ascertain how far this construction is sanctioned by
the most eminent writers, let us examine the sentiments of
Hooker, Chillingworth, and Burnet. I commence with Burnet,
although the last in the order of chronology, because his well
known book on the thirty-nine articles was written long after the
time, when any peculiar bias towards the Continental Churches,
could be supected. Besides which, it comes as near the authority
of the Church as any production of an individual has ever done;
since he tells us, in his preface, that he was induced to undertake
the work by the Archbishop of Canterbury, that it was read with
great care by many of the other bishops and several learned di-
vines, and that it was published with the strongest expressions of
their approbation.
Speaking of the twenty-third article. Bishop Burnet says,
(Lond. Ed. of 1827, p. 257,) 'I come in the next place to consider
the second part of this article, which is the definition here given
of those that are lawfully called and set; this is put in very gen-
eral words, far from that magisterial stiffness in which some have
taken upon them to dictate in this matter. The article does not
resolve this into any particular constitution, but leaves the matter
open and at large for such accidents as had happened, and such as
might still happen. They who drew it had the state of the several
Churches before their eyes that had been differently reformed; and
although their own had been less forced to go out of the beaten
track than any other, yet they knew that all things among them-
selves had not gone according to those rules that ought to be
■•■'That this was their design in framing the nineteenth and twenty-third
articles as they have done, will perhaps be more evident to some readers, upon
a comparison with the definitions of the Church, set forth by Calvin and
Luther, which I subjoin for their greater satisfaction.
'Quod dicimus, says Calvin, Instit. lib. 4. Cap. i. i, 12, 'purum verb!
niinisterium et purum in celebrandis sacramentis ritum, idoneum esse pignns
et arrhabonem, ut tuto possimus societatem in qua utrunque extiterit, pro
Ecclesia amplexari.'
In the seventh article of the Augsburg Confession, the definition of the
Church is very similar to our nineteenth Art. See Luther's works, 4. vol.
p. 196.
' Item docent, quod una sancta ecclesia perpetuo mansura sit. Est autem
ecclesia congregatio sanctorum, in qua evangelium recte docetur, et recte ad-
ministrantur sacramenta. Kt ad veram unitatem Ecclesise, satis est consentire
de doctrina Evangelii et admistratione sacramentorum.
io8 EPISCOPACY.
sacred in regular times: necessity has no law, and is a law unto
itself.t
And a little further on, (p. 258,) he observes, *If a company of
Christians find the public worship where they live to be so defiled,
that they cannot with a good conscience join in it, and if they do
not know of any place to which they can conveniently go, where
they may worship God purely, and in a regular way; if, I say,
such a body, finding some that have been ordained, though to tlie
lower functions, should submit itself entirely to their conduct, or
finding none of those, should by a common consent desire some of
their own number to minister to them in holy things, and should
upon that beginning grow up to a regulated constitution, though
we are very sure that this is quite out of all rule, and could not be
done without a very great sin, unless the necessity were great and
apparent; yet if the necessity is real and not feigned, this is not
condemned nor annulled by the article; for when this grows to a
constitution, and when it was begun by the consent of a body, who
are supposed to have authority in such an extraordinary case,
whatever some hotter spirits have thought of this, since that time,
yet we are very sure, that tiot only those who penned the articles, but
the body of this Clmrch for about half an age after, did, notwithstand-
ing those irregularities, acknowledge the foreign Churches so con-
stituted, to be t7'ue Churches as to all the essentials of a Church;
though they had been at first irregularly formed, and continued
still to be in an imperfect state. And, therefore, the general words
in which this part of the article is framed, seem to have been de-
signed 071 purpose not to exclude them.'
Hooker, speaking on the same point, although without any
particular reference to the articles, saith (Eccl. Pol. B. 7. \ 14,
Lond. Ed. of iSa";, 2. Vol. p. 304.) 'There maybe sometimes
very just and sufficient reasons to allow ordination made without a
bishop.' ' Men may be extraordinarily, yet allowably, two ways
admitted unto spiritual functions in the Church. One is when
God himself doth of himself raise up any, whose labor he.useth
without requiring that men should authorize them ; but then he
doth ratify their calling by manifest signs and tokens himself from
heaven.' 'Another extraordinary kind of vocation is, when the
exigence of necessity doth constrain to leave the usual ways of the
Church, which otherwise we would willingly keep: where the
Church must needs have some ordained, and ticither hath, nor can
have possibly, a bishop to ordain; in case of such necessity, the
fThis admission of imperfection in the system of the Church of England,
may perhaps be fairly understood to apply to those unavoidable defects which
arose from her dependence on the state, such as the bishops being appointed
by the king, instead of being elected by the clergy and people, etc. There
has been, in truth, a far more perfect exhibition of Church and state in the
Puritan days of New England, than has ever been seen in old England, since the
reformation. And as the matter now stands, and has stood with them since
that time, the true title of the union would perhaps be better expressed by re-
versing the order of the words. In sober truth, it seems not to be Chiirclt and
State, so much as State and Cliurcli.
APPENDIX D. log
ordinary institution of God, hath given oftentimes, and may give
place. And, therefore, we are not, simply without exception, to
urge a lineal descent of power from the apostles, by continued
succession of bishnps in every effectual ordination. These cases oj
inevitable necessity excepted, none may ordain but only bishops.'
And again, the same author, speaking of the Presbyterian
Churches (B. 3. (1 2. vol. i, p. 330,) with respect to the same point
of necessity, uses the following words: 'In which respect,' saith
he, ' for mine own part, although I see that certain reformed
Churches, the Scottish especially and French, have not that which
best agreeth with the sacred Scriptures, I mean the government
that is by bishops, inasmuch as both these Churches are fallen un-
der a different kind of regimen; wMch to remedy, it is for the one
altogether too late, and too soon for the other during their present
affliction and trouble: yet this their defect and imperfection I had
rather lament in such a case than exaggerate; considering that
men oftentimes, without any fault of their own, may he driven to
want that kind of polity or regimen which is the best; and to con-
tent themselves with that which either the irremediai)le error of
former times, or the necessity of the present hath cast upon them.'
Once more, Hooker, reconciling Jerome to himself, by a para-
phrase on the passage, where he speaks of the superiority of
bishops being the result rather of the custom of the Church than
of any express law of God, uses this language: (B. 7. ib. 2. vol.
252.) ' Presbyters must not grudge to continue subject unto their
bishops, unless they will proudly oppose themselves against that
which God himself ordained by his apostles, and the whole Church
of Christ approveth and judgeth most convenient. On the other
side, bishops, although they may avouch, with conformity of truth,
that their authority had thus descended even from the very
apostles themselves, yet the absolute and everlasting continuance
of it they cannot say that any commandment of the Lord doth
enjoin; and therefore must acknowledge that the Church hath
power by universal consent upon urgent cause to take away, if
thereunto she be constrained through the proud, tyrannical, and
unreformable dealings of her bishops.' 'Let this consideration be
a bridle unto them, let it teach them not to disdain the advice of
their presbyters, but to use their authority with so much the greater
humility and moderation, as a. sword which the Church hath
power to take from them.'
Chillingworth, although a staunch supporter of Episcopacy, is
quite as indulgent towards the defective Churches of the reforma-
tion; for he denies that Luther and the other reformers were schis-
matics for leaving the Church of Rome. ' Protestants,' saith he,
(vol. 2, p. 204) are peremptory and unanimous in denying that
they are truly schismatics who leave the communion of the visible
Church if corrupted; especially if the case be so (and Luther's was
so) that they must either leave her communion, or of necessity
communicate with her in her corruptions.'
/ ro nPJSCOPA C V.
Again, he questions whether the present generation of sepa-
ratists could be called schismatical, even if their forefathers had
been so. 'You say,' saith Chillingworth, addressing his Roman
Catholic antagonist, (see Chi), works, Lond. Ed. of 1820, vol. 2,
p. 189,) 'that supposing Luther, and they which did first separate
from the Roman Church, were guilty of schism, it is certainly con-
secjuent. that all who persist in this division, must be so likewise;
which is not so certain as you pretend. For they which alter,
without necessary cause, the present government of any stale,
civil or ecclesiastical, do commit a great fault; whereof notwith-
standing they may be innocent, who continue this alteration, and
to the utmost of their power oppose a change, though to the former
state, when continuance of time hath once settled the present.'
Again, he combats the accusation that Luther forsook the visi-
ble Church when he left the Church of Rome. ' Properly speak-
ing,' saith he, (ib. p. 226,) 'it is not true, that Luther and his
followers forsook the whole corrupted Church or the external com-
munion of it: but only that he forsook that part of it which was
corrupted and still would be so; and forsook not, but only re-
formed another part, which part they themselves were; and 1 sup-
])ose you will not go about to persuade us, that they forsook them-
selves or their communion. And if you urge, that they joined
themselves to no other part, therefore they separated from the
whole; I say it follows not, inasmuch as themselves were a part of
it, and still continued so: and therefore could no more separate
from the whole than from themselves.'
Once more, Chillingworth gives an explanation which applies
to our nineteenth article, and is worthy of notice. 'Protestants,'
saith he, (ib. p. 205,) 'do not make the true preaching of the word
and the due administration of the sacraments, the notes of THK
visible Church, but only of A visible Church ; now these you know
are very different things; the former signifying the Church Catho-
lic, or the whole Church; the latter, a particular Church, or a part
of the Catholic' 'And if it be .said (ib. 197,) that preaching of
the word and administration of the sacraments cannot but make a
Church visible, and these are inseparable notes of the Church — I
answer, that they are so far inseparable, that wheresoever they are,
there a Church is; but not so, but that in some cases there may be
a Church, where these are not.' In pursuance of which idea,
Chillingworth strongly insists, that the true Church may exist even
where it is invisible, likening it to the case of Israel when Elijah
thought himself alone, init God told him that there were yet seven
thousand in Israel who had not ' bowed the knee to Kaal.' (il).
210.) ' Hence,' saith he, (ib, 214,) 'Protestants do not hold the
failing of the Church from its being, but only from its visibility;
which, if you conceive all one, then must you conceive that the
stars fail every day, and the sun every night.'*
••'This opinion of Chillingworth may be admitted if understood of the un-
corrupted part of the Chnrch; but of the Church as a whole, Hooker says,
APPENDIX D. Ill
Lastly, Chillingworth, (ib. p. 25^,) sums up the differences
amongst the various branches of the reformation in these terms:
'Some,' saith he, 'taking their direction in this work of refor-
mation only from the Scriptures,t others from the writings of the
fathers and the decrees of councils of the first five ages, certainly
it is no great marvel that there was, as you say, disagreement
between them, in the particulars of their reformation; nay, mor-
ally speaking, it was impossible it should be otherwise. Vet let
me tell you, the difference between them, (especially in comparison
of your Church and religion) is not the difference between good
ancl bad; but between good and better: and they did i^est that
followed Scripture, interpreted l)y catholic written tradition; which
rule the reformers of the Church of England proposed to them-
selves to follow.'
Now, from these extracts there are several points sufficiently
manifest:
1. That the want of the Episcopal government is a defect, and
a serious defect; but that the Churches which have is not, may
nevertheless, be true Churches so far as regards I lie fssentials of a
Church.
2. That the plea of necessity, if real and not feigned, takes
away all blame from the Churches thus constituted, and renders
their ordinations lawful for thou and in their circumstances.
3. That this deviation from Scriptural rule and primitive prac-
tice, if wantonly made, without real necessity, exposes its authors
to the guilt of schism, but does not thereby deprive them of their
claim to be a portion of the Catholic or universal Church.
4. That even heretics, though a maimed part, are yet a part of
the Church universal.
5. That the true uncorrupt Church may exist invisibly under
certain circumstances, such as those of the faithful Israelites in
the days of Elijah, without the enjoyment of either preaching or
sacraments.
And the result brings us precisely to the definition of Hooker,
which includes within the pale of the Catholic or universal
Church, all who profess to acknowledge the Lord Jesus
Christ, whether sound or unsound, perfect or imperfect, maimed
or whole, in any other respect whatever.
P'.cc. fol. B. 3. I. vol. p. 273, 'God hnth had ever, and ever shall have, some
Church visible, upon earth. When the people of God worshipped the calf in
the wilderness; when they adored the brazen serpent ; when they served the
Gods of the nations; when they bowed thtir knees to Baal — the sheep of his
visible flock they continued.' The reason is the same with that assigned in
pages ^22, 323; because Israel, at none of the periods of their history, openly
cast off the worship of the true God, but united the profession of believing
in him, with the following of idols, as many substantially do in our own
day.
tChillingworth should rather have said, from -a. part 0/ i lie Scripture : ior
which see more particularly the 5th chapter.
112 EPISCOPACY.
In the peculiar position occupied by the Protestant Episcopal
Church of the United States, there are many questions of great
interest likely to arise, in the settlement of which there is some
danger of collision, unless there be a steadfast reference made to
fundamental principles.
The first and most important of these questions is the fol-
lowing:
From what source are we to derive our ideas of the poioers and
character of the bishops and clergy ?
To this the answer, as it seems to me, is a matter of course; so
much so, that I should never have conceived that it could be a
qutstion amongst Episcopalians, if I had not heard and seen
a principle advocated, which maintains, that the frame of our
ecclesiastical polity, and the measure of Episcopal powers, must
be taken from the Constitution and canons of the American Church ;
and that bishops and clergy have no inherent and official rights,
until some express provision of our own code bestows them.
If the Episcopal Church were a modern invention, coined from
the fancies of some human brain, and first starting into being with
the American revolution, there would be some sense and propriety
in the above opinion But as it claims affinity with the primitive
Church, rests its foundation on the divine will, proves its princi-
ples by the very language of Scripture, and draws its descent di-
rectly from the apostles through the channel of the Church of
England, the theory above described must be characterized as a
pure absurdity. Nevertheless, as it is a kind of absurdity which is
congenial, in many respects, with the spirit of the age, and the
prevailing temper of our country, it may meet with acceptance
from some who have not yet given to the subject any serious con-
sideration; and therefore I shall devote a portion of this disserta-
tion to tbe exposition of the true principles of our ecclesiastical
system.
I commence by the proposition, that the Episcopal Church is
maintained by all her members to be the Church of apostolic insti-
tution, characterized by the order of bishops, who exercise the
powers of ordination and government which M'ere peculiar to the
apostles; on which account they are considered the successors of
the apostles, and their Church is in this particular, an apostolic
Church.
Hence, the preface to the ordinal declares the office of bishop
to have been from the apostles' times, and that this fact is, ' evident
to all men diligently reading Scripture and ancient authors.'
Again, in the consecration service for bishops, we meet with
the following recognition of the principle:
'Brother,' saith the presiding bishop, addressing the person to
be consecrated, 'as the holy Scripture and the ancient canons com-
mand that we should not be hasty in laying on hands and admit-
ting any person Xo go7'ern»ient in the Church of Christ, which he
APPENDIX D. 113
hath purchased at no less price than the effusion of his own blood;
before we admit you to this administration we will examine you in
certain articles, to the end that the congregation present may have
a trial, and bear witness how you are minded to behave yourself in
the Church of CJod.'
Ill the third question following this introduction, the presiding
bishop asks the candidate, 'Are you ready, with all faithful dili-
gence, to biDiish and drive aioay from the Church all erroneous and
strange doctrines contrary to God's word; and both privately and
openly to call upon and encourage others to do the same?
In the hfth question, he is asked whether he ' will diligently
exercise such discipline, as by the authority of God's word, and by
the order of this Church,' is committed to him?
In the prayer which precedes the imposition of hands, reference
is made to the divine institution of the ministry, and the Almighty
is besought to grant, that the person to be consecrated may Uise
the authority given him, not to destruction, but to salvation, not to
hurt, but to help.'
And in the act of consecration it is said to him, ' Receive the
Holy Ghost for the office and work of a bishop, in the Church of
God,' and the very words of St. Paul's epistle to Timothy, the first
bishop of Ephesus, are interwoven with this and several other
parts of the service.
There are many points of similarity in the questions put in the
ordination of priests, but with this diflTerence, that here there is
nothing bestowed which resembles the power to ordain and govern,
and there is an express promise of subordination exacted in these
words:
'Will you reverently obey your bishop, and other chief minis-
ters, who, according to the canons of the Church, may have the
charge and government of er yon ; following with a glad mind and will
their godly admonitions, and submitting yourselves to their godly
judgment?'
All the above passages are retained from the ordinal of the
Church of England; they were a part of the ecclesiastical system
of our Church, previous to the revolution; the colonies were at
that time under the spiritual jurisdiction of the bishop of London,
and whatever construction was then put upon the office of a bisho'p
and the promise of obedience to him in this country, continues to
be the law of our Church to this day; those points alone excepted,
in which our American Church has thought fit to alter it by some
new provision.
This is the well known principle of our civil law. Hence, in
almost every part of the union, there are parts of the English
Common and Statute law in force to the present hour; all that had
been received and acted upon in this country previous to the revo-
lution, being considered as apart of our system, in no way affected
by the separation from the mother country. •■ And in all the fed-
'■'See the case of Terrett et al. vs. Taylor et al. 9 Cranch, 43.
AP.— 6.
114 EPISCOPACY.
eral Courts, the whole science of jurisprudence is still interpreted
according to the English rule, and their law books are read as
authority. Marvelous it is, surely, that the laws of the States
should keep their ancient connexion with so much constancy;
while yet the principles of the Church must be cut loose from all
their ties, and be sent adrift to discover new interpretations and
definitions of old terms, as if the phrases bishop, presbyter, and
ordination vows, had suddenly lost all meaning, and ceased to sig-
nify, at the revolution, what they had always signified before.
By the liberality of the British government, after peace was
declared, an act of Parliament was passed, authorizing the conse-
cration of three bishops tor the Church in this country. This was
done upon the express assurance given by our clergy in conven-
tion, that the principles of the Church of England should be faith-
fully retained. A few extracts from the address of the Conven-
tion of 1785 to the English prelates, (Bp. White's Memoirs, p.
318,) will prove this assertion clearly:
'When it pleased the Supreme Ruler of the universe, that this
. part of the British empire should be free, sovereign, and inde-
pendent,' says this address, ' it became the most important concern
of the members of our communion to provide for its continuance.
And while, in accomplishing this, they kept in view that wise and
liberal part of the system of the Church of England, which ex-
cludes as well the claiming as the acknowledging of such spiritual
subjection as may be inconsistent with the civil duties of her chil-
dren; it was nevertheless their earnest desire and resolution to re-
tain the venerable form of episcopal government, handed down to
them, as they conceived, from the time of the apostles; and
endeared to them by the remembrance of the holy bishops of the
primitive Church, of the blessed martyrs who reformed the doc-
trine and worship of the Church of England, and of the many
pious prelates who have adorned that Church in every succeed-
ing age.'
'The petition which we offer to your venerable body, is — (p.
350,) that from a tender regard to the religious interests of thou-
sands in this rising empire, professing the same religious principles
with the Church of England, you will be pleased to confer the
episcopal character on such persons as shall be recommended by
this Church in the several States here represented; full satisfaction
being given of the sufficiency of the persons recommended, and of
its being the intention of the general body of the Episcopalians in
the said States respectively, to receive them in the quality of
bishops.'
Observing upon (p. 321) the past relations of the American
Church with the Church of England, the address uses this lan-
guage, 'The archbishops of Canterbury were not prevented, even
by the weighty concerns of their high station, from attending to
the interests of this distant branch of the Church under their care.
The bishops of London were our diocesans: and the uninterrupted.
APPENDIX D. 115
although voluntary submission of our congregations, will remain a
perpetual proof of their mild and paternal government.'
Among the resolutions passed at the Convention from which
the above address emanated, the fourth (ib. p. 353,) is direct upon
the point most important to a proper understanding of this sub-
ject. It is as follows:
'Ordered, Fourthly, That it be further recommended to the
different conventions, that they pay especial attention to the mak-
ing it appear to their lordships, (the prelates of the Church of
England,) that the persons who shall be sent to them for consecra-
tion are desired in the character of bishops, as well by the laity as
by the clergy of this Church, in the said States respectively; and
that they will be received by them in that character on their
return.'
And in the answer returned by the English prelates to the ad-
dress, we find a farther evidence in the fear entertained that the
principles of the Church might be changed from the primitive and
acknowledged standards. For after stating their willingness to
comply with the request, they say, 'We are disposed to make
every allowance which candor can suggest,' (p. 355,) 'for the diffi-
culties of your situation, but at the same time we cannot help
being afraid that in the proceedings of your Convention some altera-
tions may have been adopted or intended, which those difficulties
do not seem to justify. These alterations are not mentioned in
your address, and as our knowledge of them is no more than what
has reached us through private and less certain channels, we hope
you will think it just, both to you and to ourselves, if we wait for
an explanation. For while we are anxious to give every possible
proof not only of our brotherly affection, but ot our facility in for-
warding your wishes, we cannot but be extremely cautious, lest we
should be the instruments of establishing an ecclesiastical system
which will be called a branch of the Church of England, but after-
wards may possibly appear to have departed from it essentially,
either in doctrine ox in discipline.'
In the next conventional address of the American Church (ib.
p. 125,) there was 'an assurance of there being no intention of
departing from the co7istitnent pri^utpks of the Church of Eng-
land;' and in the preamble of the act of that Convention, (ib. p,
388,) there is a declaration of 'their steadfast resolution to main-
tain the same essential articles of faith and discipline with the
Church of England.'
Now all this took pTace previous to the consecration of the
first American bishops, and fixes the intention of all parties as to
the proper character of the episcopal office, beyond the reach of
cavil. Bishop Seabury was consecrated by the non-juring bishops
of Scotland, A. D. 1784, and bishops White, Provoost, and Madison,
under favor of an act of Parliament, were consecrated by the arch-
bishops and bishops of England, A. D. 1787, the first nearly five
years, and the other three, more than two years and a half before
ii6 EPISCOPACY.
the formation of our present Constitution and canons. What pow-
ers, then, I ask, did these bishops receive at the time of their con-
secration, but the spiritual powers understood to belong to the
office of bishop, according to the sense of the primitive Church
and the usage of the Church of England? In what quality were
they received by their respective dioceses, but the quality of
bishops, such as bishops had previously and always been defined?
What attributes did their office possess by inherent right, but the
very same which the congregations under their government had
been accustomed to acknowledge in the bishop of London, who
had been the diocesan of the colonies before the Revolution?
To demonstrate still farther, the doctrine of the Church on this
point, let it be observed, that when the American Church did at
last adopt the Constitution of 1789, there was not a sentence in it,
and there is not now, defining in any way, the office or the powers
of the episcopate, the presbyterate, or the diaconate. The three
orders of the ministry are recognized in it as thiuj. s well known
and understood; but in vain would any man search in that instru-
ment for the slightest description of what was intended by the
words bishop, priest, and deacon. So, too, the first canon provides,
that in this Church there shall always be these three orders in the
ministry; but not one sentence is there in all the canons, which
looks like a design to define or describe the proper official charac-
teristics of these orders. Instead of vhich, on the contrary, the
canons require the students of theology to be examined previous
to ordination on the doctrines of Church government, (amongst
other things) and refer to the course of study recommended by the
house of bishops, as to the choice of authors; in which course of
study, every book involving the point under consideration, is a
standard of the Church of England, and Hooker's Ecclesiastical
Polity is particularized for the Episcopacy.
I am really ashamed to be so precise on such an obvious mat-
ter, but the strange misconceptions existing in reference to it, seem
to make some plain explanation necessary.
The result of the whole is simple. The bishop, presbyter, and
deacon, in our Church, are just what they were intended to be by
the apostles. The authority of the Church cannot change these
offices from their first institution, without departing, pro Umto,
from the authority of Scripture, and innovating upon the system of
God. The channel through which these sacred offices descend to
us, is that of the Church of England, and her sense upon the sub-
ject of their respective rights and duties, is the sense by which,
next after Scripture, we are solemnly bound; saving and excepting
those particulars only, in which our branch of the Church has
thought fit to adopt a different rule.
pPPENDIX E.
An Address to the President of the United States, published
agreeably to the following order, viz. :
In Convention, August 7, 1789.
The Address to the President of the United States being read,
and signed in Convention —
'Resolved, That the said Address, with the answer that may be
received thereto, be printed in the Journals of the adjourned meet-
ing of this Convention.
TO THE PRESIDENT OF THE UNITED STATES.
Sir: — We, the Bishops, Clergy, and Laity of the Protestant
Episcopal Church in the States of New York, New Jersey, Penn-
sylvania, Delaware, Maryland, Virginia, and South Carolina, in
General Convention assembled, beg leave, with the highest venera-
tion, and the most animating national considerations, at the earli-
est moment in our power, to express our cordial joy on your elec-
tion 10 the chief magistracy of the United States.
When we contemplate the short but eventful history of our
nation; when we recollect the series of essential services per-
formed by you in the course of the Revolution; the temperate yet
efficient exertion of the mighty powers with which the nature of
the contest made it necessary to invest you; and especially, when
we remember the voluntary and magnanimous relinquishment of
those high authorities at the moment of peace; we anticipate the
happiness of our country under your future administration.
But it was not alone from a successful and virtuous use of
those extraordinary powers, that you were called from your hon-
orable retirement to the first dignities of our government. An
afl'ectionate admiration of your private character, the impartiality,
the persevering fortitude, and the energy with which your public
duties have been invariably performed, and the paternal solicitude
for the happiness of the American people, together with the wis-
it8 address to the PRESIDENT.
dom and consummate knowledge of our affairs, manifested in your
last military communication, have directed to your name the uni-
versal luhh, and have produced, for the first time in the history of
mankind, an example of unanimous consent in the appointment of
the governor of a free and enlightened nation.
To these considerations, inspiring us with the most pleasing
expectations as private citizens, permit us to add, that, as the rep-
resentatives of a numerous and extended Church, we most thank-
fully rejoice in the election of a civil ruler, deservedly beloved,
and eminently distinguished among the friends of genuine re-
ligion — who has happily united a tender regard for other churches
with an inviolable attachment to his own.
With unfeigned satisfaction we congratulate you on the estab-
lishment ot the new Constitution of government of the United
States, the mild yet efficient operations of which, we confidently
trust, will remove every remaining apprehension of those with
whose opinions it may not entirely coincide, and will confirm the
hopes of its numerous friends. Nor do these expectations appear
too sanguine, when the moderation, patriotism, and wisdom of the
honorable members of the Federal Legislature are duly considered.
From a body thus eminently qualified, harmoniously co-operating
with the Executive authority in constitutional concert, we confi-
dently hope for the restoration of order and of our ancient virtues,
— the extension of genuine religion,- — and the consequent advance-
• ment of our respectability abroad, and of our substantial happi-
ness at home.
We devoutly implore the Supreme Ruler of the Universe to
preserve you long in health and prosperity, — an animating example
of all public and private virtues, — the friend and guardian of a free,
enlightened, and grateful people, — and that you may finally re-
ceive the reward which will be given to those whose lives have
been spent in promoting the happiness of mankind.
William White, D.D., Bishop of the Protestant Epis-
copal Church in the Commonwealth of Pennsylvania,
and President of the Convention.
Samuel Provoost, D.D, Bishop of the Protestant
Episcopal Church in the State of New York.
NEW YORK — Benjamin Moore, D.D., Assistant Minister of
Trinity Church, in the City of New York.
Abraham Beach, D.D., Assistant Minister of Trinity
Church, in the City of New York.
NEW JERSEY— William Frazer, A.M., Rector of St. Mi-
chael's Church, Trenton, and St. Andrew's Church,
Amwell.
Uzal Ogden, Rector of Trinity Church, in Newark.
Henry Waddel, Rector of the churches of Shrews-
bury and Middletown, New Jersey.
APPENDIX E. iig
George H. Spieren^ Rector of St. Peter's Church,
Perth Amboy, New Jersey.
John Cox.
Samuel Ogden.
Robert Strettell Jones.
PENNSYLVANIA— Samuel Magaw, D.D., Rector of St. Paul's,
and Vice-Provost of the University of Pennsylvania.
Robert Blackvvell, D. D., Senior Assistant Minister
of Christ Church and St. Peter's, Philadelphia.
Joseph Pilmore, Rector of the United Churches of
Trinity, St. Thoma--, and All Saints.
Joseph G. J. Bend, Assistant Minister of Christ Church
and St. Peter's, Philadelphia.
Francis Hopkinson.
Gerardus Clarkson.
Tench Coxe.
Samuel Powel.
DELAWARE— Joseph Couden, A. M., Rector of St. Anne's.
Stephen Sykes, A. M., Rector of the united Churches
of St. Peter's and St. Matthew, in Sussex Co.
James Sykes.
MARYLAND— William Smith, D. D., Provost of the College
and Academy of Philadelphia, and Clerical Deputy for
Maryland, as late Rector of Chester Parish, in Kent
County.
Thomas John Clagget, Rector of St. Paul's, Prince
George County.
Colin Ferguson, D. D., Rector of St. Paul's, Kent
County.
John Bissett, A. M., Rector of Shrewsbury Parish,
Kent County.
William Frisby.
Richard B. Carmichael.
VIRGINIA — Robert Andrews.
SOUTH CAROLINA — Robert Smith, D. D., Rector of St.
Philip's Church, Charleston.
W. W. Burrows.
William Brisbane.
T20 LETTER FROM GEO. WASHINGTON.
THE PRESIDENT'S ANSWER
TO THE BISHOPS, CLERGY, AND LAITY OF THE PRO-
TESTANT EPISCOPAL CHURCH, IN THE STATES OF
NEW YORK, NEW JERSEY, PENNSYLVANIA, DELA-
WARE, MARYLAND, VIRGINIA, AND SOUTH CARO-
LINA, IN GENERAL CONVENTION ASSEMBLED.
Gentlemen:
I sincerely thank you for your affectionate congratulation on my
election to the chief magistracy of the United States.
After having received from my fellow-citizens in general the
most liberal treatment — after having found them disposed to con-
template, in the most flattering point of view, the performance of
my military services, and the manner of my retirement at the close
of the war — I feel that I have a right to console myself, in my
present arduous undertaking, with a hope that they will still be
inclined to put the most favourable construction on the motives
which may influence me in my future public transactions.
The satisfaction arising from the indulgent opinion entertained
by the American people, of my conduct, will, I trust, be some
security for preventing me from doing any thing, which might
justly incur the forfeiture of that opinion. And the consideration
that human happiness and moral duty are inseparably connected,
will always continue to prompt me to promote the progress of
the former, by inculcating the practice of the latter.
On this occasion it would ill become me to conceal the joy I
have felt in perceiving the fraternal affection which appears to
increase every day among the friends of genuine religion. It
affords edifying prospects, indeed, to see Christains of different de-
nominations dwell together in more charity, and conduct them-
selves, in respect to each other, with a more Christian-like spirit
than ever they have done in any former age, or in any other nation.
I receive, with the greatest satisfaction, your congratulations
on the establishment of the New Constitution of Government; be-
cause I believe its mild, yet efficient, operations will tend to remove
every remaining apprehension of those, with whose opinions it may
not entirely coincide, as well as to confirm the hopes of its numer-
ous friends; and because the moderate patriotism ond wisdom of
the present Federal Legislature seem to promise the restoration of
order and our ancient virtues — the extension of genuine religion — and
the consequent advancement of our respectability abroad, and of
our substantial happiness at home.
I request. Most Reverend and respectable Gentlemen, that you
will accept my cordial thanks for your devout supplications to the
Supreme Ruler of the Universe in behalf of me. May you, and the
people whom you represent, be the happy subjects of Divine Bene-
diction both here and hereafter!
GEORGE WASHINGTON.
August 19, 1789.
pPPBNDIX
TO THE CLERICAL AND LAY DEPUTIES OF THE PRO-
TESTANT EPISCOPAL CHURCH IN SUNDRY OF THE
UNITED STATES OF AMERICA.
The Archbishop of Canterbury hath received an address, dated
in Convention, Christ Church, Philadelphia, October 5, 1785, from
the Clerical and Lay Deputies of the Protestant Episcopal Church
in sundry of the United States of America, directed to the Arch-
bishops and Bishops of England, and requesting them to confer the
Episcopal character on such persons as shall be recommended by
the Episcopal Church in the several States by them represented.
This brotherly and Christian address was communicated to the
Archbishop of York, and to the Bishops, with as much dispatch as
their separate and distant situations would permit, and hath been
received and considered by them with that true and affectionate
regard which they have always shown towards their Episcopal
brethren in America.
We are now enabled to assure you, that nothing is nearer to
our hearts than the wish to promote your spiritual welfare, to be
instrumental, in procuring for you the complete exercise of our
holy religion, and the enjoyment of that Ecclesiastical Constitution
which we believe to be truly apostolical, and for which you ex-
pressed so unreserved a veneration.
We are therefore happy to be informed, that this pious design
is not likely to receive any discountenance from the civil powers
under which you live; and we desire you to be persuaded, that we
on our parts will use our best endeavors, which we have good
reason to hope will be successful, to acquire a legal capacity of
complying with the prayer of your address.
With these sentiments, we are disposed to make every allowance
which candour can suggest for the difficulties of your situation, but
at the same time we cannot help being afraid, that, in the proceed-
AP. — 7.
122 LETTERS.
ings of your Convention, some alterations may have been adopted
or intended, which those difficulties do not seem to justify.
Those alterations are not mentioned in your address: and, as
our knowledge of them is no more than what has reached us
through private and less certain channels, we hope you will think
it just, both to you and to ourselves, if we wait for an explanation.
For while we are anxious to give every proof, not only of our
brotherly affection, but of our facility in forwarding your wishes,
we cannot but be extremely cautious, lest we should be the instru-
ments of establishing an Ecclesiastical system which will be called
a branch of the Church of England, but afterwards may possiiily
appear to have departed from it essentially, either in doctrine or in
discipline.
In the meantime, we heartily commend you to God's holy pro-
tection, and are, your affectionate brethren,
J. ROCHESTER. T. CANTUAR.
R. WORCESTER. W. EBOR.
I. OXFORD. R. LONDON.
I EXETER. W. CHICHESTER.
THO. LINCOLN. C. BATH AND WELLS.
JOHN BANGOR. S. St. ASAPH.
I. LITCHFIELD AND COVENTRY. S.SARUM.
S. GLOUCESTER. J. PETERBOROUGH.
E. St. DAVIDS. JAMES ELY.
CHR. BRISTOL.
London, February 24, 1786.
Resolved, That this Convention entertain a grateful sense
of the Christian affection and condescension manifested in this
letter. And whereas, it appears that the venerable Prelates
have heard, through private channels, that the Church here repre-
sented have adopted, or intended, such alterations as would be an
essential deviation from the Church of England, this Convention
trust that they shall be able to give such information to those
venerable Prelates, as will satisfy them that no such alterations
have been adopted or intended.
Resolved, That a Committee be now appointed, to draft an
answer to the letter of the Archbishops and Bishops of England.
TO THE MOST REVEREND AND RIGHT REVEREND
FATHERS IN GOD, THE ARCHBISHOPS AND BISH-
OPS OF THE CHURCH OF ENGLAND.
Most Worthy and Venerable Prelates:
We, the Clerical and Lay Deputies of the Protestant Episcopal
Church in the States of New York, New Jersey, Pennsylvania,
APPENDIX F. 123
Delaware, Maryland, Virginia, and South Carolina, have received
the friendly and affectionate letter which your Lordships did us the
honor to write on the 24th day of February, and for which we re-
quest you to accept our sincere and grateful acknowledgments.
It gives us pleasure to be assured, that the success of our appli-
cation will probably meet with no greater obstacles than what have
arisen from doubts respecting the extent of the alterations we
have made and proposed ; and we are happy to learn, that as no
political impediments oppose us here, those which at present exist
in England may be removed.
While doubts remain of our continuing to hold the same essen-
tial articles of faith and discipline with the Church of England,
we acknowledge the propriety of suspending a compliance with
our request.
We are unanimous and explicit in assuring your Lordships,
that we neither have departed, nor propose to depart, from the doc-
trines of your Church. We have retained the same discipline and
forms of worship, as far as was consistent with our civil Constitu-
tions; and we have made no alterations or omissions in the Book
of Common Prayer but such as that consideration prescribed, and
such as were calculated to remove objections, which it appeared to
us more conducive to union and general content to obviate, than
to dispute. It is well known, that many great and pious men of
the Church of England have long wished for a revision of the Lit-
urgy, which it was deemed imprudent to hazard, lest it might be-
come a precedent for repeated and improper alterations. This is
with us the proper seasoi. for such a revision. We are now settling
and ordering the affairs of our Church, and if wisely done, we
shall have reason to promise ourselves all the advantages that can
result from stability and union.
We are anxious to complete our Episcopal system, by means of
the Church of England. We esteem and prefer it, and with grati-
tude acknowledge the patronage and favors for which, while con-
nected, we have constantly been indebted to that Church. These
considerations, added to that of agreement in faith and worship,
press us to repeat our former request, and to endeavor to remove
your present hesitation, by sending you our proposed Ecclesiastical
Constitution and Book of Common Prayer.
These documents, we trust, will afford a full answer to every
question that can arise on the subject. We consider your Lord-
ships' letter as very candid and kind. We repose full confidence
in the assurance it gives; and that confidence, together with the
liberality and Catholicism of your venerable body, leads us to flat-
ter ourselves, that you will not disclaim a branch of your Church
merely for having been, in your Lordships' opinion, if that should
be the case, pruned rather more closely than its separation made
absolutely necessary.
We have only to add, that as our Church in sundry of these States
has already proceeded to the election of persons to be sent for con-
124 ANSWER OF AMERICAN CHURCH.
secration, and others may soon proceed to the same, we pray to be
favored with as speedy an answer to this our second address, as in
your great goodness you were pleased to give to our former one.
We are, with great and sincere respect,
Most worthy and venerable Prelates,
Your obedient and
Very humble servants,
In Convention:
Christ Church, Philadelphia,
June 26, 1786.
VIRGINIA — David Griffith, President.
Cyrus Griffin.
NEW YORK— Samuel Provoost, Rector of Trinity Church, New
York.
Joshua Bloomer, Rector of Jamaica, Long Island.
John Jay.
NEW JERSEY — Akraham Beach, Rector of Christ Church, New
Brunswick.
James Parker.
Matthias Halsted.
PENNSYLVANIA— William White, D.D., Rector of Christ
Church and St. Peter's.
Samuel Magaw, D. D., Vice Provost of the University
of Pennsylvania and Rector of St. Paul's.
Robert Blackwell, Assistant Minister of Christ Church
and St. Peter's.
Samuel Powell.
Francis Hopkinson.
DELAWARE— Sydenham Thorne, Rector of Christ Church and
St. Paul's.
Charles H.Wharton, D.D., Rector of Emanuel Church,
New Cistle.
Robert Clay.
Nicholas Ridgeley.
MARYLAND — William Smith, D.D., Principal of Washington
College, and Rector of Chester Parish.
William Smith, Rector of Stepney Parish.
SOUTH CAROLINA— Robert Smith, Rector of St. Philip's
Church, Charleston.
John Parker.
APPENDIX F. 125
A GENERAL CONSTITUTION OF THE PROTESTANT
EPISCOPAL CHURCH IN THE UNITED STATES OF
AMERICA, OF JUNE 23, 1786.
Whereas, In the course of Divine Providence, the Protestant
Episcopal Church in the United States of America is become inde-
pendent of all foreign authority, civil and ecclesiastical:
And whereas. At a meeting of Clerical and Lay Deputies of
the said Church in sundry of the said States, viz., in the States of
Massachusetts, Rhode Island, Connecticut, New York, New Jersey,
Pennsylvania, Delaware, and Maryland, held in the city of New
York, on the 6th and yih days of October, in the year of our Lord
1784, it was recommended to this Church in the said States repre-
sented as aforesaid, and proposed to this Church in the States not
represented, that they should send Deputies to a Convention to be
held in the city of Philadelphia, on the Tuesday before the Feast
of St. Michael, in the year of our Lord 1785, in order to unite in a
Constitution of Ecclesiastical government, agreeably to certain
fundamental principles, expressed in the said recommendation and
proposal :
And whereas. In consequence of the said recommendation and
proposal. Clerical and Lay Deputies have been duly appointed
from the said Church in the States of New York, New Jersey,
Pennsylvania, Delaware, Maryland, Virginia, and South Carolina:
The said Deputies being now assembled, and taking into con-
sideration the importance of maintaining uniformity in doctrine,
discipline, and worship in the said Church, do hereby determine
and declare:
I. That there shall be a General Convention of the Protestant
Episcopal Church in the United States of America, which shall be
held in the city of Philadelphia, on the third Tuesday in June, in
the year of our Lord, 1786, and forever after once in three years,
on the fourth Tuesday in July, in such place as shall be determined
by the Convention; and special meetings may Vie held at such other
times, and in such place, as shall be hereafter provided for. And
this Church, in a majority of the States aforesaid, shall be repre-
sented before they shall proceed to business, except that the rep-
resentation of this Church from two States shall be sufficient to
adjourn. And in all business of the Convention, freedom of de-
bate shall be allowed.
II. There shall be a representation of both Clergy and Laity
of the Church in each State, which shall consist of one or more
Deputies, not exceeding four, of each Order, chosen by the Con-
vention of each State; and in all questions the said Church in
each State shall have but one vote, and a majority of suffrages
shall be conclusive.
126 CONSTITUTION.
III. In the said Church, in every State represented in this Con-
vention, there shall be a Convention consisting of the Clergy and
Lay Deputies of the congregations.
IV. "The Book of Common Prayer and Administration of the
Sacraments, and other Rites and Ceremonies of the Church, ac-
cording to the use of the Church of England," shall be continued
to be used by this Church, as the same is altered by this Conven-
tion, in a certain instrument of writing passed by their authority,
entitled, "Alterations of the Liturgy of the Protestant Episcopal
Church in the United States of America, in order to render the
same conformable to the American Revolution and the Constitu-
tions of the respective States."
V. In every State where there shall be a Bishop duly conse-
crated and settled, who shall have acceded to the articles of this
Ecclesiastical Constitution, he shall be considered as a member of
the General Convention ex officio; and a Bishop shall always preside
in the General Convention, if any of the Episcopal Order be
present.
VI. The Bishop or Bishops in evdry State shall be chosen
agreeably to such rules as shall l^e fixed by the Convention of that
State; and every Bishop of this Church shall confine the exercise
of his Episcopal office to his proper jurisdiction, unless requested
to ordain or confirm, or perform any other act of the Episco-
pal office, by any Church destitute of a Bishop.
VII. A Protestant Episcopal Church, in any of the United
States not now represented, may at any time hereafter be admitted,
on acceding to the articles of this union.
VIII. Every Clergyman, whether Bishop, or Presbyter, or
Deacon, shall be amenable to the authority of the Convention in
the State to which he belongs, so far as relates to suspension or re-
moval from office; and the Convention in each State shall institute
rules for their conduct, and an equitable mode of trial. And at every
trial of a Bishop, there shall be one or more of the Episcopal Order
present, and none but a Bishop shall pronounce sentence of depo-
sition or degradation from the ministry on any Clergyman, whether
Bishop, or Presbyter, or Deacon.
IX. And whereas it is represented to this Convention to be the
general desire of the Protestant Episcopal Church in these Slates,
that there may be further alterations of the Liturgy than such ns
are made necessary by the American Revolution, — therefore,
"The Book of Common Prayer and Administration of the Sacra-
ments, and other Rites and Ceremonies, as revised and proposed
to the use of the Protestant Episcopal Church, at a Convention of
the said Church in the States of New York, New Jersey, Pennsyl-
vania, Delaware, Maryland, Virginia, and South Carolina," may
be used by the Church in such of the States as have adopted, or
may adopt, the same in their particular Conventions, till further
provision is made, in this case, by the first General Convention
APPENDIX F. 127
which shall assemble with sufficient power to ratify a Book of Com-
mon Prayer for the Church in these States.
X. No person shall be ordained, until due examination had by
the Bishop and two Presbyters, and exhibiting testimonials of his
moral conduct for three years past, signed by the Minister and a
majority of the Vestry of the Church where he has last resided; or
permitted to officiate as a Minister in this Church until he has ex-
hibited his Letters of Ordination and subscribed the following
declaration: "I do believe the Holy Scriptures of the Old and
New Testament to be the word of God, and to contain all things
necessary to our salvation; and I do solemnly engage to conform
to the doctrines and worship of the Protestant Episcopal Church in
these United States."
XL The Constitution of the Protestant Episcopal Church in
the United States of America, when ratified by the Church in a
majority of the States assembled in General Convention, with
sufficient power for the purpose of such ratification, shall be unal-
terable by the Convention of any particular State, which hath been
represented at the time of such ratification.
A GENERAL CONSTITUTION
OF THE PROTESTANT EPISCOPAL CHURCH IN THE UNITED
STATES OF AMERICA, OF AUGUST 8, 1 789.
Art. I. There shall be a General Convention of the Protestant
Episcopal Church in the United States of America on the first
Tuesday of August, in the year of our Lord, 1792, and on the first
Tuesday of August in every third year afterwards, in such place as
shall be determined by the Convention; and special meetings may
be called at other times, in the manner hereafter to be provided for;
and this Church, in a majority of the States which shall have adopted
this Constitution, shall be represented, before they shall proceed to
business, except that the representation from two States shall be
sufficient to adjourn; and in all business of the Convention free-
dom of debate shall be allowed.
Art. 2. The Church in each State shall be entitled to a repre-
sentation of both the Clergy and the Laity, which representation
shall consist of one or more Deputies, not exceeding four of each
Order, chosen by the Convention of the State; and in all questions,
when required by the Clerical or Lay representation from any
State, each order shall have one vote; and the majority of suffrages
by States shall be conclusive in each order; provided such majority
comprehend a majority of the States represented in that Order.
The concurrence of both Orders shall be necessary to constitute a
128 CONSTITUTION.
vote of the Convention. If the Convention of any State should
neglect or decline to appoint Clerical Deputies, or if they should
neglect or decline to appoint Lay Deputies, or if any of those of
either Order appointed should neglect to attend, or be prevented
by sickness or any other accident, such State shall nevertheless be
considered as duly represented by such Deputy or Deputies as may
attend, whether lay or clerical. And if, through the neglect of
the Convention of any of the Churches which shall have adopted,
or may hereafter adopt, this Constitution, no Deputies, either Lay
or Clerical, should attend at any General Convention, the Church
in such State shall nevertheless be bound by the acts of such Con-
vention.
Art. 3. The Bishops of this Church, when there shall be three
or more, shall, whenever General Conventions are held, form a
House of Revision; and when any proposed act shall have passed
in the General Convention, the same shall be transmitted to the
House of Revision for their concurrence. And if the same shall
be sent back to the Convention, with the negative or non-concur-
rence of the House of Revision, it shall be again considered in the
General Convention, and if the Convention shall adhere to the
said act by a majority of three-fifths of their body, it shall become
a law to all intents and purposes, notwithstanding the non-concur-
rence of the House of Revision; and all acts of the Convention
shall be authenticated by both Houses. And in all cases, the
House of Bishops shall signify to the Convention their approbation
or disapprobation, the latter with their reasons in writing, within
two days after the proposed act shall have been reported to them
for concurrence, and in failure thereof, it shall have the operation
of a law. But until there shall be three or more Bishops as afore-
said, any Bishop attending a General Convention shall be a mem-
ber ex officio, and shall vote with the Clerical Deputies of the
State to which he belongs. And a Bishop shall then preside.
Art. 4. The Bishop or Bishops in every State shall be chosen
agreeably to such rules as shall be fixed by the Convention of that
State. And every Bishop of this Church shall confine the exercise
ot his Episcopal office to his proper Diocese or District, unless re-
quested to ordain or confirm, or perform any other act of the Epis-
copal office, by any Church destitute of a Bishop.
Art. 5. A Protestant Episcopal Church in any of the United
States not now represented may, at any time hereafter, be admit-
ted, on acceding to this Constitution.
Art. 6. In every State the mode of trying clergymen shall be
instituted by the Convention of the Church therein. At every
trial of a Bishop there shall be one or more of the Episcopal Order
present: and none but a Bishop shall pronounce the sentence of
deposition or degradation from the Ministry on any clergyman,
whether Bishop, or Presbyter, or Deacon.
APPENDIX F. i2g
Art. 7. No person shall be admitted to Holy Orders until he
shall have been examined by the Bishop and by two Presbyters, and
shall have exhibited such testimonials and other requisites as the
Canons in that case provided may direct. Nor shall any person
be ordained until he shall have subscribed the following declara-
tion: "I do believe the Holy Scriptures of the Old and New
Testament to be the word of God, and to contain all things neces-
sary to salvation: and I do solemnly engage to conform to the doc-
trines and worship of the Protestant Episcopal Church in these
United States." No person ordained by a foreign Bishop shall be
permitted to officiate as a Minister of this Church until he shall
have complied with the Canon or Canons in that case provided,
and have also subscribed the aforesaid declaration.
Art. 8. A Book of Common Prayer, Administration of the Sac-
raments, and other Rites and Ceremonies of the Church, Articles
of Religion, and a form and manner of making, ordaining, and
consecrating Bishops, Priests, and Deacons, when established by
this or a future General Convention, shall be used in the Protestant
Episcopal Church in those States which shall have adopted this
Constitution.
Art. 9. This Constitution shall be unalterable, unless in General
Convention by the Church in a majority of the States which may
have adopted the same; and all aiterations shall be first proposed
in one General Convention, and made known to the several State
Conventions, before they shall be finally agreed to, or ratified, in
the ensuing General Convention.
In General Convention, in Christ Church, Philadelphia, August
the 8th, One thousand seven hundred and eighty-nine.
William White, D.D., Bishop of the Protestant Episco-
pal Church in the Commonwealth of Pennsylvania, and
President of the Convention.
NEW YORK — Abraham Beach, D.D., Assistant Minister of
Trinity Church, in the City of New York.
Benjamin Moore, D.D., Assistant Minister of Trinity
Church, in the City of New York,
Moses Rogers.
NEW JERSEY— William Frazer, Rector of St. Michael's
Church, in Trenton, and St. Andrew's Church, in Am-
well.
UzAL Ogden, Rector of Trinity Church, Newark.
Henry Waddell, Rector of Shrewsbury and Middle-
town, New Jersey.
George H. Spieren, Rector of St. Peter's, Amboy.
John Cox.
Samuel Ogden.
R. Strettell Jones.
AP —8.
130 CONSTITUTION.
PENNSYLVANIA— Samuel Magaw, D.D., Rector of St. Paul's,
Philadelphia.
Robert Blackwell, D.D., Senior Assistant Minister
of Christ Church and St. Peter's, Philadelphia.
Joseph Pilmore, Rector of the United Churches of
Trinity, St. Thomas, and All Saints.
Joseph G. J. Bend, Assistant Minister of Christ Church
and St. Peter's, Philadelphia.
Francis Hopkinson.
Gerardus Clarkson.
Tench Coxe.
Samuel Powel, Esq.
DELAWARE— Joseph Couden, A. M., Rector of St. Anne's.
Stephen Sykes, A. M., Rector of St. Peter's and St.
Matthew's, in Sussex County.
James Sykes.
MARYLAND— William Smith, D. D., a Clerical Delegate for
Maryland, appointed in a Convention as Rector of
Chester Parish, Kent County.
Colin Ferguson, D. D., Rector of St. Paul's, Kent
County.
John Bissett, A. M., Rector of Shrewsbury Parish,
Kent County.
Richard B. Carmichael.
William Frisby.
VIRGINIA — Robert Andrews.
SOUTH CAROLINA — Robert Smith, Rector of St. Philip's
Church, Charleston, and Principal of Charleston Col-
lege.
William Brisbane.
W. W. Burrows.
APPENDIX F. 131
THE CONSTITUTION
OF THE PROTESTANT EPISCOPAL CHURCH IN THE UNITED
STATES OF AMERICA, OF OCTOBER 2, I 789.
Art. I. There shall be a General Convention of the Protestant
Episcopal Church in the United States of America, on the second
Tuesday of September, in the year of our Lord 1792, and on the
second Tuesday of September in every third year afterwards, in
such place as shall be determined by the Convention; and special
meetings may be called at other times, in the manner hereafter to
be provided for; and this Church, in a majority of the States which
shall have adopted this Constitution, shall be represented, before
they shall proceed to business, except that the representation from
two States shall be sufficient to adjourn; and in all business of the
Convention, freedom of debate shall be allowed.
Art. 2. The Church in each State shall be entitled to a repre-
sentation of both the Clergy and the Laity, which representation
shall consist of one or more Deputies, not exceeding four of each
Order, chosen by the Convention of the State : and in all questions,
when required by the Clerical or Lay representation from any State,
each Order shall have one vote; and the majority of suffrages by
States shall be conclusive in each Order, provided such majority
comprehend a majority of the States represented in that Order.
The concurrence of both Orders shall be necessary to constitute a
vote of the Convention. If the Convention of any State should
neglect or decline to appoint Clerical Deputies, or if they should
neglect or decline to appoint Lay Deputies, or if any of those of
either Order appointed should neglect to attend, or be prevented
by sickness or any other accident, such State shall nevertheless be
considered as duly represented by such Deputy or Deputies as may
attend, whether Lay or Clerical. And if, through the neglect of
the Convention of any of the Churches which shall have adopted,
or may hereafter adopt this Constitution, no Deputies, either Lay
or Clerical, should attend at any General Convention, the Church
in such State shall nevertheless be bound by the acts of such Con-
vention.
Art. 3. The Bishops of this Church, when there shall be three
or more, shall, whenever General Conventions are held, form a
separate House, with a right to originate and propose acts for the
concurrence of the House of Deputies, composed of Clergy and
Laity; and when any proposed act shall have passed the House of
Deputies, the same shall be transmitted to the House of Bishops,
T32 CONSTITUTION.
who shall have a negative thereupon, unless adhered to by four-fifths
of the other House. And all acts of the Convention shall be
authenticated by both Houses. And in ail cases, the House of
Bishops shall signify to the Convention their approbation or disap-
probation, the latter with their reasons in writing, within three
days after the proposed act shall have been reported to them for
concurrence, and in failure thereof, it shall have the operation of a
law. But until there shall be three or more Bishops as aforesaid,
any Bishop attending a General Convention shall be a member ex
officio, and shall vote with the Clerical Deputies of the State to
which he belongs; and a Bishop shall then preside.
Art. 4. The Bishop or Bishops in every State shall be chosen
agreeably to such rules as shall be fixed by the Convention of that
State. And every Bishop of this Church shall confine the exercise
of his Episcopal office to his proper Diocese or District, unless re-
quested to ordain or confirm, or perform any other act of the Epis-
copal office, by any Church destitute of a Bishop.
Art. 5. A Protestant Episcopal Church in any of the United
States not now represented, may, at any time hereafter, be admit-
ted, on acceding to this Constitution.
Art. 6. In every State, the mode of trying Clergymen shall
be instituted by the Convention of the Church therein. At every
trial of a Bishop there shall be one or more of the Episcopal Order
present: and none but a Bishop shall pronounce sentence of depo-
sition or degradation from the Ministry on any Clergyman, whether
Bishop, or Presbyter, or Deacon.
Art. 7. No person shall be admitted to Holy Orders, until he
shall have been examined by the Bishop and by two Presbyters, and
shall have exhibited such testimonials and other requisites as the
Canons in that case provided may direct. Nor shall any person be
ordained until he shall have subscribed the following declaration:
" I do believe the Holy Scriptures of the Old and New Testament
to be the Word of God, and to contain all things necessary to sal-
vation: and I do solemnly engage to conform to the doctrines and
worship of the Protestant Episcopal Church in these United States."
No person ordained by a foreign Bishop shall be permitted to offi-
ciate as a minister of this Church, until he shall have complied
with the Canon or Canons in that case provided, and have also sub-
sciibed the aforesaid declaration.
Art. 8. A Book of Common Prayer, Administration of the Sa-
craments, and other Rites and Ceremonies of the Church, Articles
of Religion, and a form and manner of making, ordaining, and
consecrating Bishops, Priests, and Deacons, when established by
this or a future General Convention, shall be used in the Protestant
Episcopal Church in those States which shall have adopted this
Constitution,
APPENDIX F. 133
Art. 9. This Constitution shall be unalterable, unless in Gen-
eral Convention by the Church in a majority of the States which
may have adopted the same; and all alterations shall be first pro-
posed in one General Convention, and made known to the several
State Conventions, before they shall be finally agreed to, or ratified,
in the ensuing General Convention.
Done in General Convention of the Bishops, Clergy, and Laity
of the Church, the second day of October, 1789, and ordered to be
transcribed into the Book of Records, and subscribed, which was
done as follows, viz. : —
IN THE HOUSE OF BISHOPS:
Samuel Seabury, D.D., Bishop of
Connecticut.
William White, D.D., Bishop of
the Protestant Episcopal Church,
Pennsylvania.
IN THE HOUSE OF CLERICAL AND LAY DEPUTIES: ,
William Smith, D D., President of the House of Cleri-
cal and Lay Deputies, and Clerical Deputy from
Maryland.
NEW HAMPSHIRE AND MASSACHUSETTS— Samuel Park-
er, D.D., Rector of Trinity Church, Boston.
CONNECTICUT— Bela Hubbard, A.M., Rector of Trinity
Church, New Haven.
Abraham Jarvis, A.M., Rector of Christ Church, Mid-
dletown.
NEW YORK — Benjamin Moore, D.D., "> Assistant Ministers of
Abraham Beach, D.D., J Trinity Church in the
City of New York.
Richard Harrison, Lay Deputy from the State of New
York.
NEW JERSEY— UzalOgden, Rector of Trinity Church, Newark.
William Frazer, A.M., Rector of St. Michael's Church,
Trenton, and St. Andrew's Church, Amwell.
Samuel Ogden, 1 t t^ *•
R.Strettell Jones, } Lay Deputies.
PENNSYLVANIA— Samuel Magaw, D.D., Rector of St. Paul's,
Philadelphia.
Robert Blackwell, D.D., Senior Assistant Minister of
Christ Church and St. Peter's, Philadelphia.
Joseph G. J. Bend, Assistant Minister of Christ Church
and St. Peter's, Philadelphia.
134 CONSTITUTION.
Joseph Pilmore, Rector of the United Churches of
Trinity, St. Thomas, and All Saints.
Gerardus Clarkson, .
Tench Coxe, I Lay Deputies from the State of
Francis IIopkinson, | Pennsylvania.
Samuel Powel, ^
DELAWARE — Joseph Couden, A.M., Rector of St. Anne's.
Robert Clay, Rector of Emanuel and St. James'
Churches.
MARYLAND— John Bissett, A.M., Rector of Shrewsbury Pa-
rish, Kent County.
John Rumsey, ) , T^
Charles Goldsborough, | ^^X Deputies.
VIRGINIA — John Bracken, Rector of Bruton Parish, Williams-
burg.
Robert Andrews, Lay Deputy.
SOUTH CAROLINA— Robert Smith, D.D., Rector of St. Phil-
ip's Church, Charleston.
William Smith, "t Lay Deputies from the State of
William Brisbane, j South Carolina.
THE CONSTITUTION,
AS ADOPTED BY THE GENERAL CON-
VENTION. AND PUBLISHED IN
ITS JOURNAL OF 1880.
CONSTITUTIO
ADOPTED IN GENERAL CONVENTION,
In Philadelphia, October, 1789, with Amendments,
AS Published in the Journal of 1880.
ARTICLE I.
There shall be a General Convention of the Protestant Episco-
pal Church in the United States of America, on the first Wednes-
day in October, in every third year, from the year of our Lord one
thousand eight hundred and forty-one; and in such place as shall
be determined by the Convention; and in case there shall be an
epidemic disease, or any other good cause to render it necessary to
alter the place fixed on for any such meeting of the Convention,
the Presiding Bishop shall have it in his power to appoint another
convenient place (as near as may be to the place so fixed on) for
the holding of such Convention: and special meetings maybe
called at other times, in the manner hereafter to be provided for;
and this Church, in a majority of the Dioceses which shall have
adopted this Constitution, shall be represented, before they shall
proceed to business; except that the representation from two Dio-
ceses shall be sufficient to adjourn; and in all business of the Con-
vention freedom of debate shall be allowed.
ARTICLE 2.
The Church in each Diocese shall be entitled to a representa-
tion of both the Clergy and the Laity. Such representation shall
consist of not more than four Clergymen and four Laymen, com-
municants in this Church, residents in the Diocese, and chosen in
the manner prescribed by the Convention thereof; and in all ques-
tions when required by the Clerical or Lay representation from
any Diocese, each Order shall have one vote; and the majority of
suffrages by Dioceses shall be conclusive in each Order, provided
such majority comprehend a majority of the Dioceses represented
AP.— 9.
138
CONSTITUTION.
Vote by Dio-
ceses and
Orders.
Dioceses
unrepre-
sented are
bound.
HoKse of
Bishops.
Negative
upon the
Lower
House.
Jurisdiction
of Bishops.
in that Order. The concurrence of both Orders shall be necessary
to constitute a vote of the Convention. If the Convention of any
Diocese should neglect or decline to appoint Clerical Deputies, or
if they should neglect or decline to appoint Lay Deputies, or if
any of those of either Order appointed should neglect to attend,
or be prevented by sickness or any other accident, such Diocese
shall nevertheless be considered as duly represented by such
Deputy or Deputies as may attend, whether Lay or Clerical. And
if, through the neglect of the Convention of any of the Churches
which shall have adopted or may hereafter adopt this Constitution,
no Deputies, either Lay or Clerical, should attend at any General
Convention, the Church in such Diocese shall nevertheless be
bound by the acts of such Convention.
ARTICLE 3.
The Bishops of this Church, when there shall be three or
more, shall, whenever General Conventions are held, form a sepa-
rate House, with a right to originate and propose acts for the con-
currence of the House of Deputies composed of Clergy and
Laity; and when any proposed act shall have passed the House
of Deputies, the same shall be transmitted to the House of Bishops,
who shall have a negative thereupon; and all acts of the Conven-
tion shall be authenticated by both Houses. And in all cases the
House of Bishops shall signify to the Convention their approbation
or disapprobation (the latter with their reasons in writing) within
three days after the proposed act shall have been reported to them
for concurrence; and in failure thereof, it shall have the operation
of a law. But until there shall be three or more Bishops, as afore-
said, any Bishop attending a General Convention shall be a mem-
ber ex officio, and shall vote with the Clerical Deputies of the Dio-
cese to which he belongs; and a Bishop shall then preside.
ARTICLE 4.
The Bishop or Bishops in every Diocese shall be chosen agree-
ably to such rules as shall be fixed by the Convention of that Dio-
cese; and every Bishop of this Church shall confine the exercise of
his Episcopal Office to his proper Diocese, unless requested to
ordain, or confirm, or perform any other act of the Episcopal
Office in another Diocese by the Ecclesiastical Authority thereof.
APPENDIX F.
r39
ARTICLE 5.
A Protestant Episcopal Church in any of the United States, or
any Territory thereof, not now represented, may, at any time here-
after, be admitted on acceding to this Constitution; and a new
Diocese, to be formed from one or more existing Dioceses, may be
admitted under the following restrictions, viz.: —
No new Diocese shall be formed or erected within the limits of
any other Diocese, nor shall any Diocese be formed by the junc-
tion of two or more Dioceses, or parts of Dioceses, unless with the
consent of the Bishop and Convention of each of the Dioceses
concerned, as well as of the General Convention, and such consent
shall not be given by the General Convention until it has satisfac-
tory assurance of a suitable provision for the support of the Epis-
copate in the contemplated new Diocese.
No such new Diocese shall be formed which shall contain less
than six Parishes, or less than six Presbyters who have been for at
least one year canonically resident within the bounds of such new
Diocese, regularly settled in a Parish or Congregation, and quali-
fied to vote for a Bishop. Nor shall such new Diocese be formed
if thereby any existing Diocese shall be so reduced as to contain
less than twelve Parishes, or less than twelve Presbyters who have
been residing therein and settled and qualified as above mentioned:
provided, that no city shall form more than one Diocese.
In case one Diocese shall be divided into two or more Dioceses,
the Diocesan of the Diocese divided may elect the one to which he
will be attached, and shall thereupon become the Diocesan
thereof; and the Assistant Bishop, if there be one, may elect the
one to which he will be attached; and if it be not the one elected
by the Bishop, he shall be the Diocesan thereof.
Whenever the division of a Diocese into two or more Dioceses
shall be ratified by the General Convention, each of the Dioceses
shall be subject to the Constitution and Canons of the Diocese so
divided, except as local circumstances may prevent, until the same
may be altered in either Diocese by the Convention thereof. And
whenever a Diocese shall be formed out of two or more existing
Dioceses, the new Diocese shall be subject to the Constitution and
Canons of that one of the said existing Dioceses to which the
greater number of Clergymen shall have belonged prior to the
erection of such new Diocese, until the same may be altered by
the Convention of the new Diocese.
Admission
0/ New
Dioceses.
Consent re-
quired.
Limit of
Presbyters
and Parish-
Rights 0/
tlie Diocesan
and tlic As-
sistant
Bishops.
Constitu-
tion and
Canons of
Nc70 Dioccs-
140
CONSTITUTION.
Ecclesiasti-
cal Courts,
Trials and
Sentences.
Requisites
for Ordina-
tion.
\
Declara-
tion.
Admission
of Foreign
Clergy.
The Book 0/
Common
Prayer.
Alterations
or .Addi-
tions, hoiu to
be made.
Thel-ection-
ary, how it
may be
.Amended .
ARTICLE 6.
The mode of trying Bishops shall be provided by the General
Convention. The Court appointed for that purpose shall be com-
posed of Bishops only. In every Diocese the mode of trying Pres-
byters and Deacons may be instituted by the Convention of the
Diocese. None but a Bishop shall pronounce sentence of admoni-
tion, suspension, or degradation from the Ministry, on any Clergy-
man, whether Bishop, Presbyter, or Deacon.
ARTICLE 7.
No person shall be admitted to Holy Orders until he shall have
been examined by the Bishop, and by two Presbyters, and shall
have exhibited such testimonials and other requisites as the
Canons, in that case provided, may direct. Nor shall any person
be ordained until he shall have subscribed the following declara-
tion: —
I do believe the Holy Scriptures of the Old and New Testament to he the
Word of God, and to contain all things necessary to salvation ; and I do
solemnly engage to conform to the Doctrines and Worship of the Protestant
Episcopal Church in the United States.
No person ordained by a foreign Bishop shall be permitted to
officiate as a Minister of this Church, until he shall have complied
with the Canon or Canons in that case provided, and have also
subscribed the aforesaid Declaration.
ARTICLE 8.
A Book of Common Prayer, Administration of the Sacraments,
and other Rites and Ceremonies of the Church, Articles of Relig-
ion, and a Form and Manner of making, ordaining, and consecrat-
ing Bishops, Priests, and Deacons, when estal^lished by this or a
future General Convention, shall be used in the Protestant Epis-
copal Church in those Dioceses which shall have adopted this
Constitution. No alteration or addition shall be made in the Book
of Common Prayer, or other Offices of the Church, or the Articles
of Religion, unless the same shall be proposed in one General Con-
vention, and by a resolve thereof made known to the Conven-
tion of every Diocese, and adopted at the subsequent General
Convention: Provided, hotoevcr, That the General Convention
shall have power, from time to time, to amend the Lectionary;
but no act for this purpose shall be valid which is not voted for by
APPENDIX F.
14
a majority of the whole number of Bishops entitled to seats in the
House of Bishops, and by a majority of all the Dioceses entitled to
representation in the House of Deputies.
ARTICLE 9.
This Constitution shall be unalterable, unless in General Con-
vention, by the Church, in a majority of the Dioceses which may
have adopted the same; and all alterations shall be first proposed
in one General Convention, and made known to the several Dio-
cesan Conventions, before they shall be finally agreed to, or rati-
fied, in the ensuing General Convention.
ARTICLE 10.
Bishops for foreign countries, on due application therefrom,
may be consecrated, with the approbation of the Bishops of this
Church, or a majority of them, signified to the Presiding Bishop;
he thereupon taking order for the same, and they being satisfied
that the person designated for the office has been duly chosen,
and properly qualified : the Order of Consecration to be conformed,
as nearly as may be, in the judgment of the Bishops, to the one
used in this Church. Such Bishops, so consecrated, shall not be
eligible to the Office of Diocesan, or Assistant Bishop, in any Dio-
cese in the United States, nor be entitled to a seat in the House of
Bishops, nor exercise any Episcopal authority in said States.
Done in the General Convention of the Bishops, Clergy, and
Laity of the Church, the 2d day of October, ijSc).
Note. — When the Constitution was originally adopted, in Au-
gust, 1789, the first Article provided that the triennial Convention
should be held on the first Tuesday in August. At the adjourned
meeting of the Convention, held in October of the same year, it
was provided that the second Tuesday in September in every third
year, should be the time of meeting. The time was again changed
to the third Tuesday in May, by the General Convention of 1804.
The first Article was put into its present form at the General
Convention of 1841.
The second Article was put into its present form at the General
Convention of 1856.
The third Article was so altered by the General Convention of
1808, as to give the House of Bishops a full veto upon the proceed-
ings of the other House.
Alterations
0/ this Con-
stitution.
Consecra-
tion of Bisti-
ops for For-
eign Coun-
tries.
History of
Alterations.
nsq.
1804.
1841.
tSsb.
/SoS.
142
CONSTITUTION.
1874.
1871.
1S41.
181 1.
iSzg.
1877.
1S44.
1838.
The fourth Article was put into its present form at the General
Convention of 1874.
The fifth Article was put into its present form at the General
Convention of 1871.
The sixth Article was put into its present form at the General
Convention of 1841.
The second sentence of the eighth Article was adopted at the
General Convention of 181 1.
The words "or the Articles of Religion " were added to the
eighth Article by the General Convention of 1829.
The third sentence of the eighth Article was adopted at the
General Convention of 1877.
The tenth Article was finally agreed to, and ratified, in the
General Convention of 1844.
The Convention of 1838 adopted the following alterations,
to-wit: —
Striking out the word '"States" wherever it occurred in the
first and second Articles, except where it followed the word "Uni-
ted" in the first part of the first Article, and inserting in lieu of
the word "States" the word "Dioceses." Striking out the word
"States" wherever it occurred in the second, third, and fourth
Articles, and inserting in lieu thereof the word "Dioceses."
Striking out the words " or district " in the fourth Article.
Striking out the word "State" in the sixth Article, and insert-
ing the word "Diocese."
Striking out the word "States" in the eighth Article, and insert-
ing the word "Dioceses"; and in the eighth Article, striking out
the words "or State" after the words "every Diocese."
Striking out the word "States" in the ninth Article, and in-
serting the word "Dioceses." Striking out the word "State" in
the ninth Article, and inserting the word " Diocesan."
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