0. v.-2 CONCERNING THE HERESY TRIAL OF RT. REv. WILLIAM MontgomeRY BRow N, D.D. Member of the House of Bishops of the Protestant Episcopal Church, U. S. A. } r t § THEODORE SCHROEDER OF THE NEW YORK BAR 14 WEST 12TH ST. N. Y. CITY REPUBLISHED FROM THE TRUTH SEEKER JULY 5th & 12th NEW YORK 1924 Readers of Lies By ROBERT LOUIS STEVENSON HUMAN truth, which is al- ways very much a lie, hides as much of life as it displays. It is men who hold another truth, or, as it seems to us, perhaps, a dan- gerous lie, who can extend our re- stricted field of knowledge, and rouse our drowsy consciences. Something that seems quite new, or that seems insolently false or very dangerous, is the test of a reader. If he tries to see what it means, what truth excuses it, he has the gift, and let him read. If he is merely hurt or offended, or ex- claims upon his author's folly, he had better take to the daily papers; he will never be a reader. FROM - BOOKS WHICH HAVE INFLUENCED ME 7/ -2-129 Psychologic Aspect of Bishop Brown’s Defense. There was one novel feature in this heresy trial, which was manifested by the recurrence of the phrase “mental content of belief.” Heretofore heresy has been quite exclusively a matter of “hairsplitting theologic quibbling.” Now it was insisted that the problem was chiefly in the domain of the psychology of belief, without an un- derstanding of which psychology no intelligent standard of orthodoxy could be framed. Formerly we thought of Orthodoxy as being solely, or mainly, a matter of formal dogmatic profession. The psy- chologists insist that we shall distinguish between the objective and subjective aspects of belief. The objective factors consist of ceremonials and of pro- fessing conformity. The subjective aspects of be- lief consist of the actual mental content which is symbolized by creedal statements and ceremonial performances. Then the issue of heresy may be thus stated: Is the standard of orthodoxy to be based upon the mental content? or upon its symbolic expression in creedal statement or devotional acts? By the psychologist, “mental content” is still further subdivided into at least these four com- ponents: 1. The concept or mental imagery; 2. The antecedent psychologic experiences, creative of the imperative which determined the details in the choice of the religious mental imagery; 3. The sub- sequent mental processes by which this imagery is rationalized; 4. The variety of affective-values which are attached, in various degrees of relative in- tensity, to various parts of the religious concepts, and to the varying factors of the conflicting concepts of others. All these factors of the mental content of religious belief exist, of course, in infinite variety, 3 all depending upon the difference of experience, of temperamental need, and cultural status. The only logical standard of belief is subjective; that is to say, orthodoxy should be standardized according to mental content. Formerly the mere creedal statements were deemed an adequate index to the mental content, and thus were supposed to supply a sure and certain standard of orthodox be- lief. Under the newer psychologic insight, this can no longer be held as true. Under this head the argument runs as follows: First, it is impossible to formulate a standard of orthodoxy in terms of the mental content, as that must now be thought of in the view of modern psychology. Even if this could be formulated it would be impossible to find identity of mental content. In the argument of Bishop Brown's attorney he said: “If this court could find in all the world 200 persons having identically the same religious mental content, it will have achieved something more miraculous than any- thing recorded in the scriptures.” The only alternative, therefore, is that the church shall be content with securing uniformity in the creedal and ceremonial symbolization of belief. Upon this basis, it was argued that Bishop Brown should be allowed to remain in the Protestant Epis- copal church because he can accept all its statements of doctrine and the scriptures as figurative or sym- bolic presentations of his views. All intelligent per- sons use this method of interpretation to some ex- tent. From long habit, and other causes, Bishop Brown retains an affective interest in all the ob- jective factors of the church service. He also remains attached to the fellowship of the church. His desire is that all humanity should be encour- aged to unite under the symbols of the P. E. church, into a universal fellowship that works for human betterment. Each person should be allowed to read out of, or read into, these creedal and 4 ceremonial symbols, whatever their temperamental needs and cultural status make necessary; and that under this common symbolism all should unite to promote social betterment, and each should be al- lowed to do his work according to his own light. Thus Bishop Brown claims a continuing fellowship to work for communism (or is it socialism?) and for a materialistic “Weltanshauung,” within the fellow- ship, with the co-operation, and under the sym- bolisms of the P. E. church. The foregoing abbreviated summary of the psy- chological factors of the problem is the outstanding novelty underlying all of the defendant's attempted defense, which, however, was excluded by the ju- dicial rulings. To promote that kind of liberalism within the church was the avowed motive of the defendant and of his attorney. - To help in the development of such a liberal church, and to remain one of its zealous members was Bishop Brown's ardent desire. If the Protestant Episcopal church is not (or cannot be made) liberal enough for this, then he is content to be excluded, but he will remain regretful that he failed to accomplish its adequate liberalization. A Critical Review of the Heresy Trial. The heresy trial of Bishop William Montgomery Brown by the Protestant Episcopal church, for teaching doctrines contrary to those held by the church, which trial recently took place in Cleveland, Ohio, presented novel points of probable interest, even to laymen. The Protestant Episcopal church of the United States of America is apparently a well-organized in- stitution. It has a constitution originally adopted in Philadelphia in 1789, and it has a body of statutes called “Canon” whose relation to the constitution is that ordinarily existing between constitutional and statutory law. The constitution provides for a gen- eral convention which meets every three years, and which consists of two houses sitting and deliberating separately, to wit: The House of Bishops and the House of Deputies, which latter is composed of both laymen and clergymen. There are thus pro- visions for a legislative department of the church government, which provisions are of familiar aspect. The constitution of the Protestant Episcopal church authorizes the establishment of a judicial system. This consists in part of a court for the trial of bishops, a court for the review of the trials of bishops, and “an Ultimate Court of Appeal solely for the review of the determination of any Court of Review upon questions of doctrine, faith, or wor- ship.” The constitutional authority to establish the first two courts has been exercised by the legislative body, and the Canons of the church are the result. But no attention has been paid to the final provision for the establishment of an Ultimate Court of Ap- peal. This being the case, and there being no pro- vision in the constitution or canons as to the de- termination of questions of doctrine, the essential doctrines of the church remain unformulated by any 6 official constitutional action of the church. May we therefore, by analogy, invoke the maxim of our civil courts: “Where the law [or doctrine] is un- certain there is no law”? If now, the analogies of the civil law obtain, or if even ecclesiastical courts must have regard for the constitutional rights of church members, then it is possible that the trial, under such circumstances, of a heretical bishop would not be allowed to eventu- ate in expulsion or deprivation of canonical privi- leges, because this would then be a deprivation of rights without “due course of law.” " At the outset of the trial several unusual objec- tions to the jurisdiction were interposed and over- ruled. The defense claimed that the court was not lawfully constituted, because in the year 1919 the convention had failed to elect three members of the court as provided in the canons and undertook to correct this omission by electing six members in the year 1922, after the defendant's alleged heretical ut- terances had been published, and when this par- ticular trial was in view. The defense claimed that it was manifestly impossible for the convention to have used the same sort of impartial discrimination in electing these bishops as would have been the * U. S. vs. Comerford, 25 Fed. Rep. 902. Cook vs. State, 59 Ind. 489–491, 26 Ind. App. 278. McJunkins vs. State, 10 Ind. 140. Ex. Parte Jackson 45 Ark. 164. McConnelville vs. Jersey City, 39 N. J. Law 38. Johnson vs. State, 100 Ala. 32. Mathew vs. Murphy, 23 Ky. L. Rep. 750. McCord vs. R.R.C. 183 U.S. 483. Com. vs. Moletsky, 89 N.E. 245. L. & N. Ry. Co. vs. Com. 99 Ky. 132, 33 L.R.A. 209-59 Am. St. Rep. 457, 35 S.W. 129 L., & N. Ry. Co. vs. Com. 99 Ky. 132, 19 Fed. Rep 679. Hewitt vs. State, 148 Calif. 590, 39 L. R. A. N. S. 896, 113 Am. St. Rep. 39, 84 Pa. 39. Augustine vs. State, 41 Tex. Cr. App. 59, 96 Am. St. Rep. 765, 52 S. W. 77. State vs. Gasker, 45 La Ann. 636, 12 So. 739. State vs. Mann, Or. 238. U. S. vs. B. & O. Ry.—U. S. 7 case if they had been elected at the proper time, and therefore before this controversy had arisen, and without reference to its decision. The defendant also objected to going on trial until the complete judicial system prescribed by the constitution of the church had been completed by the creation of the Ultimate Court of Appeal. The objection is of greater merit because, as stated above, there is no existing authoritative and previ- ously known standard of doctrine given out by the church. A third objection was based upon the fact that Bishop Brown is on the retired list, and there- fore has no “canonical residence” and therefore the court could not acquire jurisdiction of his person, under the canon law, which requires a trial within the jurisdiction of his canonical residence. Here the argument was linked with the age-old doctrine of the “indelibility of Holy Orders.” “Once a bishop always a bishop” was the maxim. The court for the trial of bishops, above referred to, consists of nine bishops who, the canon pre- scribes, are to be elected in blocks of three, at suc- cessive general conventions. These bishops are au- thorized to elect their own presiding judge and to appoint their own clerk. The canon further pro- vides: * “The accused being present and the trial proceeding, it shall be conducted according to the principles of the Com- mon Law as the same is generally administered in the United States; and the laws of the state in which such trial is held, so far as they relate to the law of evidence, shall be adopted and taken as the rules by which said court shall be governed.” This provision seems sufficiently definite, but nevertheless the prosecution made two remarkable claims, to wit: (1) That on a motion to quash the presentment (indictment) the accused having appeared only for the purpose of the motion, no rules of procedure 8 had been provided; because the phrase “the accused being present and the trial proceeding” had not been complied with by his special appearance. (2) That an application for a commission to take deposition, as specifically provided for in the canons, did not come under the provision as to “the laws of the state . . . so far as they related to the laws of evidence.” Neither of these claims was expressly passed on by the Court. The nine bishops composing the Court have the advice of two non-clerical lawyers called “assessors,” who advise as to questions other than theological. These assessors found a seeming way out for the Court without deciding those questions. Does the analogy, or more direct control of the civil law, apply as a control of such a decision? When the canon law says that the civil laws shall control “the law of evidence” it does not limit it to the admissibility of evidence. Does it mean that the rules of the civil law control also the produc- tion of evidence and the sufficiency of the evidence to justify the judgment? If so, it may be that the canon law, under some circumstances, gives the civil courts an authority to review even that ques- tion. A still more fundamental question arose, the de- cision of which is surprising to a mind accustomed to legal safeguards. The heresy proceeding amounts to a criminal prosecution. It is based on an in- dictment and its issue is a sentence to a serious penalty, especially from the viewpoint of religious persons. The common law principles, invoked by canon law, might imply a jury trial did not the canon law impose the duty of deciding questions of fact upon the court of nine judges. In Bishop Brown's case the defendant moved to be permitted to examine these juror-judges on their voir dire, as to their O prejudices and qualification, the defendant’s attor- ney having previously addressed a letter to each bishop, making inquiry upon this subject. This in- quiry elicited an answer from only one of the bishops. This motion for an inquiry as to judicial prejudice the Court overruled. The gist of the decision was that, since the canons provided for the election of this Court, the judges so elected must act regardless of any prejudgment on their part, either expressed or implied, as to the merits of the case. If the bishops deny the accused a right to examine them on their voir dire, and afterwards they seek to depose the defendant, has he been de- prived of his privileges, prestige, and right by “due process of law” P When the bishops denied the defendant's claim of right to enquire into their impartiality as triers of the presentment against him, they automatically and quite unconsciously asserted the divine prerogatives of royalty. “When the King is a party, one shall not challenge the array for favour, etc., because in respect to his allegiance he, the trier, aught to favor the King more.”” In other words, in such cases, wherein God or his vicegerents are involved, a pre- judice in their favor is a virtue. Will the civil courts review or approve any judgment which in- volves that implication? * But then in the ecclesiastical realm this Bishops' Court can rule like the kings who reigned by divine right, and therefore act as though the law “alloweth him [the King and them the Bishops] (as God's vicegerent on earth) divine attributes.” So it came to be held that “the King can do no wrong.”.” Under such a regime it was also held by Lord Holt in * His Majestie's Royal Rights and Prerogatives Asserted, (Lond, A. D. 1680), p. 125. * His Majestie's Royal Rights and Prerogatives Asserted, (Lond, 1680), pp. 132-3. 10 cases of libel that “the enactment of the law is con- tained in the punishment of the offense.” “ In effect that is what the Bishops’ Court said, when it confessed its inability to indicate any formu- lated statement of the essential doctrines of the church which had been violated by Bishop Brown's alleged heresies. They did say that the doctrine was contained in, but not formulated in, the Prayer- book, etc. This is equivalent to saying that it rested in the secret recesses of their inner conscious- ness, and would find ex post facto justification in the prayerbook, etc., etc. “The judges as conduits, pipes and conveyances of the king’s justice, should always take cognizance of those laws which advance our sovereign's interests, though they be not pleaded.”" But will the civil courts confirm such a mechanical conduit-concept of judicial function? With such an attitude and under much Royal precedent, these bishops could even dispense with the restraints of Magna Charta and other guaran- tees of “due process of law.” “These statutes and the like were made to put things in ordinary form, and to ease the sovereign of labour, but not to de- prive him of power, and therefore the King [and Bishop's Court?] is not restrained by such laws, but his [and the bishop's P] royal authority remains full and perfect as before, and he can dispense with them as king.”" Let us now remember that the canon law re- quires that the heresy trial shall be conducted “ac- cording to the principles of the common law, as the same is generally administered in the United States.” That common law included the require- ment that “no freeman shall be taken, or imprisoned, or disseized of his freehold, or liberties, or be out- * Holt on Libel, p. 37, Edit. 1816. * His Majestie's Royal Rights and Prerogatives Asserted, (A. D. 1680), p. 89. * His Majesties Rights and Prerogatives, p. 87. 11 e’ lawed, or exiled, or any otherwise destroyed, and we will not pass sentence upon him, nor condemn him, but by the lawful judgment of his peers, or by the law of the land” (Magna Charta). This guarantee of British royalty was so often violated by the kings that it was thought necessary to reaffirm its doc- trine in our constitutional guarantees. In ignoring the requirements of “due process of law” which should include a “law” definitely defin- ing the criteria of heretical guilt, and requiring an unprejudiced tribunal, these bishops again acted as if they were the beneficiaries of divine prerogatives. “The King hath no superior but God Almighty.” " But should this case finally get into the civil courts, will these courts, even unconsciously, indulge in the same presumption ? The provision in the canon law, as to the ap- pointment of a commission to take the depositions of witnesses whose attendance cannot be secured, is mandatory, requiring the court, if in session, or if not any member thereof, to appoint a commissioner to take depositions on application by the defendant. With this mandatory provision, the presiding judge before the trial, and the Bishops’ Court during the trial, refused to comply. No reason was given therefor, but it was generally believed that the true reason was a desire to avoid embarrassment on the part of the ecclesiastical witnesses and of the cleri- cal judges, arising from the doctrinal questions con- tained in the interrogatories which it was known the defendant proposed to submit to all the bishops. Again, it may be asked, has the accused been de- prived of his ecclesiastical privileges and preroga- tives without his day in court? Thus far we have discussed “doctrine” from the point of view of the Bishops’ Court, as if “doc- * His Majestie's Rights and Prerogatives, p. 92. (A. D. 0). 12 trine” were analogous to statute law. However, from the defendant’s point of view it became some- thing different when it was admitted that “doctrine” had not been specifically formulated. From any point of view there was but one im- portant question involved in the trial, to wit, whether the doctrines advocated by the accused were “contrary to those held by’’ the church. This in- volves the question: What are the doctrines of the church upon the points in controversy P Since the essential “doctrine” of the church has never been authoritatively nor adequately formulated as such, doctrinal issue presented a question of fact. In the absence of such complete and final authority the doctrines of the church must necessarily consist of the teachings of its official spokesmen. Upon this theory it was proposed to show by the bishops, as the official spokesmen of the church, what are its doctrines, and how much of Bishop Brown's “heresy” is tolerated within “orthodoxy.” This contention of the defendant has been frankly admitted by a high-church partisan in England, Here I refer to W. J. Conybeare, late fellow of Trinity College, Cambridge, Eng., and later one of Her Majesties Preachers at Whitehall. He was discussing our present problem with the view to meeting the arguments of the Roman Catholic. He said: “But these formularies [Liturgy and Articles] admit of diverse interpretations, and need a living voice to decide between conflicting interpreters. ‘Where then,’ says the inquirer, “shall I seek this living voice, which may solve my doubts?’ To this it is replied that the accents of the church are to be heard from the lips of her bishops, and that her presbyters, ordained by those bishops are her living oracles, to each individual laymen in every separate parish.” * Essays Ecclesiastical and Social, Lond, 1855, p. 104. 13 The Court, however, excluded all evidence on this underlying question, holding that it would take judicial notice of what is the church's doctrine on the controverted points. From the defendant's view- point, that doctrine was a question of fact. The novelty of a court's taking judicial notice of a fact decisive of a controverted issue was surely extra- ordinary, especially where as here it was the one pivotal point of the whole controversy. The Court declined to point out where and what were the precise doctrines, of which it would take judicial notice, contenting itself with the statement that it held that the doctrine was “contained in” but not formulated in the Prayer Book. Bishop Brown replied: “So doubtless and in the same sense are the doctrines contained also in the dictionary.” The Prayer Book is a book of five hundred sixty-six (566) pages. In the “Ratification” formerly in- cluded in the Prayer Book, it is called a “Liturgy,” that is to say, a scheme of worship, and it is mani- fest that a very small proportion of the five hundred sixty-six pages are in any true sense doctrinal. Therefore the statement of the Court was by no means helpful to the accused in determining the pre- cise nature of the accusation, or the precise stand- ards of guilt by which his utterances would be judged. If this were a matter of law then the law must be certain in its meaning and definition.” If not a question of law, as defendant contended, then it was preposterous to exclude the testimony of the bishops and others. The Court admitted the existence of a difference between worship, discipline, and doctrine, but refused nevertheless to point out how it, or anyone else, could discriminate between these, so sº." S. v. Cap. Traction Co., 34 App. Cases (D. C.), Czarra v. Medical Sup. 25 App. Cases (D. C.) 443. Also cases cited in foot-note No. 1. 14 as to separate the doctrinal part from that which is purely worship or discipline. It is one thing to say that a court will take judicial notice, and that a defendant is presumed to know, natural law, or statute law, or even a com- mon law definition of a crime which has found re- peated formulations in innumerable judicial prece- dents. In all such definitions the words symbolize quite definitely ascertainable material realities. Not so when problems of theological orthodoxy are in- volved. There we are concerned with metaphysical speculations, the words of which cannot be trans- lated into sense-perceived objects. Here the words of definition are little more than rationalizations of unusual psychologic states of feeling and imagina- tion, which are abstracted from all sense-perceived realities and projected into an infinite universe. Now the words of such metaphysical concepts seldom can symbolize precisely the same mental content for two persons, even though the supernatural and tran- scendental can be expressed only in words which in the first instance symbolized the realities of our ordinary sense-experience. How can a defendant be presumed to know the mental content which limits orthodoxy by a stand- ard of heresy and which consists in metaphysical speculations interpretative of the words of the scrip- ture, prayer book, etc., etc.? All of these are vari- ously interpreted, with infinitely varying degrees of literalism, according to the differences in the qual- ity and intensity of the emotional need, and dif- ferences in the psychologic maturity and cultural status of each separate human animal. Would a civil court say that a bishop had been deprived of his rights by “due process of law” because he failed to anticipate correctly what metaphysical specula- tion it is that the other bishops will take judicial notice of, by an ea post facto announcement con- 15 cerning the particular metaphysical standards of Orthodoxy by which he will be adjudged guilty of a heretical crime? One of the defendant’s chief complaints was the impossibility of knowing exactly what he was ac- cused of having contradicted, and by what canonical standard of orthodoxy the existence of heresy was to be determined. In numerous and divers ways he endeavored to obtain from the prosecutor and from the Court a statement of the particular doctrine which his teachings, as quoted in the presentment, were held to controvert. All such efforts were un- availing. An examination of the foregoing proceedings, and a comparison between them and the course which a similar case would have taken in a Court of Law, tends to increase our respect for the latter. There is much to indicate that the record in the ecclesiastical courts is being shaped with the view to an ultimate review in the civil courts, perhaps by an application for an injunction. 16 Bishop Brown’s Statement After the Verdict. I am gratified with what has been accomplished in making the public see the real issues involved in all heresy. The trial has brought light into theological darkness, and the darkness compre- hended it not. It was not that I wished to force my views upon the church. It was not that I wished to be al- lowed any special consideration. It was simply that I love the church and the masses whom it should serve. I want the church freed from the handicap of an uncertain literalism, so that it may shed its blessings in every age, according to the best thought of that age. We have utterly failed to draw from the court a statement of any standard of orthodoxy. But this failure is our greatest triumph, because it was our contention, from the outset, that it could not be done. We were told only that the doctrine is contained, but not formulated, in the Prayer Book, in the Col- lects, in the Scriptures. So doubtless it is con- tained in the Dictionary. Had they assumed to formulate it, we would still ask, what is the un- alterable and the immutable mental content which the words must symbolize for all men and for all time? Judged by supernatural literalism, I am a one hundred per cent heretic. By the same standard no bishop of this church is one hundred per cent orthodox. The court of course failed to inform us what degree of deviation from literal orthodoxy is permitted for membership in the House of Bishops. The inference is that one may be very liberal as long as no bishop is shocked thereby. But every new thought is shocking, and so long as the church assumes to set limits to human think- 17 ing it must exhaust its time and energies by hunt- ing heretics, instead of ministering to the needs and aspirations of mankind. Of course the bishops did not know why they refused to define these limits. But I understand perfectly well that it was because in the nature of things it could not be done. I wanted to make them and the public see that, and to have all be- come more tolerant in consequence thereof. This has been the ultimate heresy trial of history because this fundamental issue has for the first time been raised. My dear brethren have been obsessed with the assumption that there must be some limit beyond which a churchman must not be allowed to interpret the traditional statements of faith. The trial, of course, is not over. There is no possibility that the issue involved can be concluded except along the lines laid down by the defense. This means the subordination of every dogma to the progressive revelations of science. Long before the higher ecclesiastical courts can pass upon the question, it will have become obvious to everyone whose mind lives in this scientific age, that a charge of heresy can not be sustained. More than that, it will become obvious to everyone that such a charge can not even be stated. And what is ob- vious to everyone sooner or later must become ob- vious to theologians. WM. MoMTGOMERY BROWN. 18 BIBLIOGRAPHIES OF SCHROEDERIANA 1913 & Partial bibliography of the writings of Theodore Schroeder dealing largely with problems of religion, of sex, and of freedom of speech. Free speech league. (New York) April 1913, 8p., 84 titles. 1919 Authorship of the book of Mormon. Psychologic tests of W. F. Prince, critically reviewed by Theodore Schroeder * * * to which is now added a bibli- ography of Schroeder on Mormonism. Reprint [ex- cept bibliography]. American Journal of Psychol- ogy. (Worcester, Mass.) XXX pp. 66-72. January, 1919. 18p., 65 titles. Bibliography, pp. Io-18. There is some duplication by revision, republication or translation. Sankey-Jones, Nancy Eleanor, 1862– Theodore Schroeder on free speech, a bibliography by Nancy E. Sankey-Jones. (New York.) Free speech league. 1919. 24p., 149 titles. Duplication by revision, republication or translation. 1920–2 Sankey-Jones, Nancy Eleanor, 1862– Theodore Schroeder's use of the psychologic ap- proach to problems of religion, law, criminology and philosophy. A bibliography by Nancy E. Sankey- Jones. (Cos Cob, Conn.) 1920. 16p. Revised ed., Jan. 1922, 18p., 92 titles.—Some duplication by revision, republication or translation. 1922 Sankey-Jones, Nancy Eleanor, 1862– unique heathen, to which is now added: Theo- dore Schroeder on the erotogenesis of religion, a bib- liography “. * * republishing in combination two es- says from : The Freethinker, London, Eng. Apr. 17, 1921; The Truth-seeker, New York, N. Y. Jan. 7, 1922. Cos Cob, Conn. January 1922. 13+14pp. Lists 50 titles, mostly selected from the last list. 140 Periodicals (in 4 languages) have each published some of Mr. Schroeder's literary product, part of which is listed in the above bibliographies. N.E.S.-J.