G
THE DAILY EVBalNG TgJJSGRAPII PHILADELPHIA, SATURDAY, J (JNE 3, 1871.
ECCLESIASTICAL LAW.
The IUjrhta of Clergymen, "Settled" a
Hectors "What are Thcyl .
2 viow of the great interest attaohed to
Judgw Lnrllow's decision in the !ase of Bt.
Clemcst's Churcb, published by us last Satur
day, we give below an ably written article, by
an eminent lawyer of this city. It will be
found exceedingly interesting by all who
have watched the progress of the difficulties
in St. Clement's Church:
This question is one of interest just now;
and inasmuch as there seems to be difference
of opinion with regard to the proper under
standing of and application of the law gov
erning the case, it may not be oat of place
to ffer some suggestions which may bring
out clearly the fact that the legislation of the
Church was sot designed to be the means,
and in event of being properly administered
will not have the result, of placing a rector at
the mercy of the prejudices of his vestry and
the precipitate exercise of arbitrary power on
the part of his diocesan.
The learned judge who has granted a con
tinuance of the injunction restraining the
vestry of St. Clement's Church very pointedly
asks these questions:
"Can it be possible that any minister may
be summarily ejected from his parish without
a trial?
"Shall the civil law guarantee to the hum
blest citizens a hearing, and may an ordained
and duly instituted minister of the Frotestant
Episcopal Church be denied a right as com
mon as this one ?" " -
In some quarters the answer is, "Yes, cer
tainly. A rector has no rights which may not
be overridden by the joint action of bis vestry
and his bishop, without redress." And some
add, "It is a hard case, but the canons of the
Church permit it."
It is just this last statement which Is now
denied; or, to put the matter in the form of a
positive statement, "The canons of .the Church
are not to be construed as authorizing or per
mitting so flagrant an act of injastioe."
Once for all, before showing proof of this,
let it be distinctly understood that this ques
tion is entirely apart from the reasonableness
or the unreasonableness of the desire of the
vestry and the bishop to get rid of an objec
tionable rector or assistant minister. To
specify the case which has brought this dis
cussion before the publio and into the courts:
the clergy of St. Clement's may or may not be
teaching or acting in conformity with the
standards of their Church. If they are teach
ing and acting in conformity with those stand
ards, they are not liable to. ecclesiastical cen
sure. If they are not so teaching and acting,
they are liable. But this has not been proven
in the canonical way. To assume it
on the part of the bishop is to
prejudge the case. It may be that
the clergy of St. Clement's ought to be dis
placed for teaching false doctrine and encour
aging false practices. It may be, also, that
these questions are of only secondary import
ance, and that the real motive underlying
what has been made publio is simply such a
degree of personal dislike as to make it desi
rable that the clergy should leave the church.
We may admit, for argument's sake, the
truth of either or both of these views; and
yet, whatever may be said of the right belong
ing to the vestry to say, "We wish you to go,
and so far as in us lies we dismiss you and
sever the ecclesiastical relationship yon bear
to us," so far as the Bishop's concurrenee
with that action of the vestry is concerned,
we cannot but think it, so far as and in the
mode in which it has been exercised, indefensi
ble. If the assumption of the Bishop that he
alone is the "ecclesiastical authority" men
tioned in the canon be a valid assumption,
his mode of exercising the powers of that
authority will cause any man with self-respect
to pause before he enters a profession
which debars him from the right which even
a common thief possesses the right of being
proven guilty before be is punished as guilty
the right of a fair heariag before his peers.
The hot haste with which the "concurrence"
of the Bishop in the action of the vestry was
announced within twenty-four hours after the
action of the vestry shows at least one thing
to the settled clergy, and that is, that if the
present laws of the Church permit them thus
to be stricken down without a hearing, with
out at least some form of open judicial inquiry
into the merits of any charges under whic h
they may be laboring, the sooner these laws
are changed the better.
But it is held that the Bishop has aoted
strictly in accordance with the law; that he
is J the "ecolesiastical authority" upon whose
breath hangs the destiny of every settled
minister in his diocese whose vestry may
choose to turn him adrift at a moment's
notice.
Even in the ancient Church, where the
bishops had far more power than they ever
have had in the American Church, it was
necessary for a bishop to have'.as assessors at
leadt 6ix bishops before proceeding against
one of his presbyters, as Bingham shows in
his "Antiquities," book 2, cap. 3, section 9.
But the American Church has its own laws,
and by them must the case be ruled.
What should and do govern the case of dis
missing a minister from his cure, in the
"FroteBtant Episoopal Church in the United
Stts of America?" ' r
, .The answer is, "Principles of justice as em
bodied in la ws set forth by canons or other
authoritative formularies."
The "principles of justice" .which should
govern such a case are thus stated by Mr.
Murray Hoffman in his "Eoclesiastioal Law
in the State of New York; Fott & Arney,
18C8," pp. 2C9, 270: "When the sanction of
the ecclesiastical authority is sought, a duty is
imposed as well as a power conferred. It can
not concur upon any tz parte statements, or
without an examination. 'The right to bo
heard is a common-law right, and must be
observed before any penalty of any descrip
tion can be lav. fully inflicted. If the conse
quence of a dismission with concurrence is to
dissolve and discharge the civil relations and
contracts of the parties, it can only be bo
permitted when the essential rules of the law
are observed. A competent authority to hear
and decide, a proper reasonable notice of the
matters objeoted to, an opportunity to meet
and reply to them, are fnndacaental."
We have yet to learn that these funda
mental things were deemed worthy of notioe
or practice by ' 'the ecclesiastical authority"
in "concurring" in the action of the St.
Clement's vestry.
But Mr. Hoffman proceeds: "The opinion
of that sound lawyer and canonist, Mr. Q.
M. Wharton, upon the ease in Michigan, was
that a vestry had no right to dismiss a rector
without acousation or trial. The legislation
of 18G5 prevents the dismissal of a minister
by a vestry with the assent of the bishop
from being nncanonical, and relieves the
parties from the penalties of the canon. I
do not think, however, that it makes good a
dismissal without trial, or that it dissolves
the contract between him and the parish.
Such a result would be a violation of general
principles, and, I think, the law of 1SC5
should be construed in subordination to
these."
, These statements, coming from such a
source, are entitled to grave consideration.
They . fix the principles of equity governing
such cases, and the only point open to ques
tion is whether Mr. Hoffman is right in as
suming that the law of 1805 makes the "eo
clesiastioal authority" to reside in the bislwp
alone.
We admit that for certain acts of ecclesias
tical authority the bishop of a diocese is ab
solutely competent by himself, without asses
sors or council of advice; but that he is so
in the ease under dispute is precisely what is
in question. It must be nolioed that where,
as above, Mr. Hoffman writes "the dismissal
of a minister by a vestry with the assent of
the bishep," the canon of 18G5, to which he
refers, does not use the expression "the con
currence of the bisJiop" but "the concurrence
of the eccletiastical authority of the diocese;'"
and if it be said that this is a general expres
sion, and is intended, of course, to mean the
bishop if tliete be one, and, if not, then the
btandmg Committee, it is answered that there
are other considerations which show that the
bishop alone is not meant, but the bishop and
assessors in a way which involves a fair hear
ing. '
But, to be perfectly explicit, we quote so
much of the "law of 18C5," above referred to,
as bears upon this point. It is Title II, Can.
,4, Sec 1 of the Digest, and is headed "Of
the Dissolution of a Pastoral Connection:"
"Section 1. In. case a minister who has
been regularly instituted or settled in a parish
or church be dismissed by such parish or
church without the concurrence of the ecclesi
astical authority of the diocese, the vestry or
congregation of such parish or church shall
have no right to a representation in the con
vention of the diecese until they shall have
made such satisfaction as the convention may
require; but the minister thas dismissed shall
retain his right to a seat in the convention,
subject to the approval of the ecclesiastical
authority of the diocese. And no minister
shall leave his congregation against their will
without the oonourrence of the ecolesiastical
authority aforesaid; and if he shall loave them
without such concurrence," etc.
The former part is the only one having a
bearing npon the case at issue.
The canon implies, and only implies, that a
"regularly instituted or settled" minister can
be dismissed with the "concurrence of the
ecclesiastical authority of the diocese;" but it
does not state how, or with what formalities,
and it does not define who or what is, for
purposes of such concurrence, the "ecclesias
tical authority. Everything is in the most
general possible terms, so far as the canon
is concerned. But the canon itself points to
an authoritative formulary of the Church in
which, for purposes of such concurrence, the
"ecclesiastical authority is clearly defined.
A regularly "settled" minister and a regu
larly "instituted" minister are, bo far as the
rights sow under dispute are concerned, npon
precisely the same footing, and by the terms
of the canon.
By turning to the offioe of institution, in the
Prayer-Book, we find two forms of the "Let
ter of Institution," one from the bishop and
the other in case there be no bishop of the
diocese at the time, from the clerical mem
bers of the Standing Committee.
That form of "Letter of Institution" given
by the bishop ends thus, "and in case of
any difference between you and your congre
gation, as to a separation and dissolution of
all sacerdotal connection between you and
them, we, your bishop, with the advice of our
presbyters, are to be the ultimate arbiter and
judge."
That form of "Letter of Institutisn" which
comes (in event of there being no bishop of
the diocese) from the clerical members of the
Standing Committee ends thus, "and in
case of any difference, etc., the eoolesiastical
authority of the Churoh in this diooeae (taking
the advice and aid of a bishop) shall be the
ultimate arbiter and judge."
In both of these forms one thing is evi
dent. It is to be no "one man power" to
which the sacred rights of the 'clergy are
given over, as to an ultimate, irresponsible
"arbiter and judge." 1
But as the first of these forms, i. e., the
"Letter of Institution" given by the bishop,
contains what is especially involved in this
present case, we shall confine ourselvts to its
Consideration.
"We, your Bishop, with the advice of oua
Pkebbytjby, are to be the ultimate arbiter
and judge." The words emphasized above
make all the difference in the world between
an arbitrary exercise of personal prerogative
by which a rector may be suddenly crushed
without appeal, and that exercise of impartial
judicial prerogative which acoorda a rector a
fair hearing before his peers; which is all
that any reasonable man can ask, and which,
we make bold to affirm, has not beau given to
the clergy of St. Clement's. '
We gather, from the Institution Offioe,
then, that the bUhip and his presbyters, not
the bishop alone, are "the eoclesiastioal au
thority of the diocese" contemplated by Title
II, Canon 4, Seo. 1, whose "concurrence" id
necessary, in event of there being no specific
diocesan canon, to give effect to the action
of a vestry dismissing their rector, and the
fact that the names of the clergy of St.
Clement's were by the Bishop kept upon the
roll of clergy entitled to Beats in the conven
tion after he had "ooncurred" in their dismis
sal, would seem to show that the above un
derstanding of the law of the Charcu was
latent in his own mind also, else; why were
those who, according to the very terms of
dismissal by the vestry and "concurrence"
by the Bishop, had no ecolesiastical standing
whatever in the Diocese of Pennsylvania,
admitted to be entitled to a Beat and vote in
her convention?
One thing is very certain. This matter is
not simply one concerning the clergy of St.
Clement's. It is a question involving the
rights of every settled minister in the diocese;
aad, whatever may be its results in the case
of Dr. Batterson and Dr. Stewart, if its ven
tilation and discussion terminate in the adop
tion by the Diocese of Pennsylvania of some
such canon as that adopted in 18G3 by the
Diocese of Ohio, great good will have been
accomplished, and vexing questions of pre
rogative and authority will be onoe and for
all settled without the humiliating necessity
on the part of churchmen to appeal to the
civil courts to enforoe in ecolesiastical mat
ters the commonest principles of equitable
fairness.
The following is the canon of Ohio, the
italics being our own, as quoted by Murray
Hoffman:
"Section 1. Whereas it is provided in Canon
i, Title II, of the Digest of Canons of the
General Convention, that when a minister
has been regularly settled in a parish or
churcb, he shall not be dismissed' without the
concurrence of the eoclesiastioal authority of
the diocese; it is hereby provided that in
cases of controversy between any rector or
assistant minister of any church or parish
whioh cannot be settled by the parties them
selves, the said parties, or either of them,
may make written application to the Bishop
of the diocese, who shall thereupon nominate
four presbyters and four laymen of
the diocese, and cause a list of
their names to be served upon
the rector or assistant minister, and also upon
the clerk or secretary of the vestry, upon one
or more of the applicants on behalf of the
congregation, who shall, within ten days after
such service, return their respective lists to
the Bishop, each party having the right of
striking off the name of one clergyman and
one layman; and should this right not be ex
ercised, or both parties strike off the same
names, then the bishop shall reduce the num
ber in the manner above prescribed to four,
three of whom shall constitute a quorum, and
shall meet at such time and place as the Bishop
may designate, and of which due notioe shall
be given to the parties concerned, in order
tliat the grounds of the controversy may be
fully stated and the ease fully heard.
"Section 2. If it shall appear to a majority
of the board thus summoned, after a full ex
amination of the ease, that there is no hope
of a favorable termination of such contro
versy and that a dissolution of the connection
is necessary, they shall recommend to suoh
rector or assistant minister to relinquish his
connection with , such parish on such condi
tions as Bhall appear to them proper and rea
sonable. "Section 3. The said recommendation shall
be submitted in writing, and in duplicate to
the Bishop, who, if he shall dearly disap
prove of the same, may set aside said recom
mendation, and nominate a new board, which
shall proceed in the manner hereinabove
mentioned, and whose recommendation and
finding shall be final. The Bishop shall make
known to the parties the said reoommendation
if not set aside, or if set aside, then the said
final recommendation, within ten days after
the receipt of the same, and he shall report
all proceedings to the convention at its next
annual meeting, with a statement of the
grounds of his action in case he shall have
disapproved of the first finding in any case
as aforesaid. ,
"Section 4. Should the reotor or assistant
minister refuse to comply within ten days
after the decision shall have been made
known to him, he Bhall be liable to suspen
sion from the exercise of all ministerial func
tions until he submit to suoh deoision.
"Section 5. And if the vestry of the church
or the congregation refuse or neglect to com
ply on their part with the decision aforesaid,
the said parish shall be prohibited from a re
presentation in the convention of the diocese,
until they shall have performed their duty in
accordance with the same."
May this canon, or one like it, speedily be
come naturalized in the Diocese of Pennsyl
vania !
FOURTH OF JULY, 1871.
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' Tree of U. C Tax.
; This road 1b now In the dullest season of the year
earning more than 19 per cent, net on the amount
of its mortgage obligations. , .
Its T per cent, gold bonds are equal for security
to Government or any Railroad lssua. They com
mand a ready market, ana we are prepared to buy
and sell them at all times. No investment in the
market, possessing equal guarantees of safety, re.
turns an equal percentage of Interest. The Chicago '
Burlington, ana Quincy has given a tramo guaran
tee, and obligates itself to Invest in these bonds 60
per cent, of the gross earnings derived from all
business from this road. This la sufficient indication '
of the estimate of this enterprise by the largest and
moat far-sighted corporation in the West. A limited '
quantity stiil for sale by
HENRY CLEWS & CO.,
No. 33 WALL Street, New York.
For sale In Philadelphia by
Do Haven & Dros.,
Elliott, Collins & Co.,
Townsond Whelen & Co.,
Darker Dros & Co.,
: W. H. Shelmerdlne ft Co.,
And by Bankers and Brokers generally. 4 W swtjlS '
TRAVELLERS' CREDITS ' .r
. ISSUED IN CONNECTION WITH ;
Jay Cocke, McCulIoch S Co.,
. . OF LONDON,
AVAILABLE THROUGHOUT EUROPE.
We would call the special attention of Americana,
going abroad to the complete arrangements made by
our London House, In their office, at
No. 41 LOMBARD Street,
For the comfort and convenience of holders of our
Circular Lettets, and especially with reference to
their correspondence and the latest advices from
the United States. ....
Persona taking Credits through us can
have their pasaports furnished without
extra charge.
Full Information given at oni; office.
JAY COOKE & CO.,
BANKERS,
No. 114 SOUTH THIBD STREET,
6 9 tutha2m PHILADELPHIA.
1IARRISS0N CRAMBO, v
BANKER, Hi
Uf Jkl NUT O
PHILADELPHIA.
ass;
iot.
6fcT)RICE Of ICE LOW ENOOUE TO 8ATI8F'
1 ALL." "
"BE SUUS KNICKERBOCKER IS ON THE
WAOON."
KNICKERBOCKER ICE COMPANY.
THOa. K. CAH1LL, President.
E. r. KKK8UOW, Vice-President.
A. HUNT, Treasurer.
E. H. OoHNKLL, Secretary.
' T. A. HKt) UK y, Superintendent
Principal Oillce, - "
NO. 433 WALNUT Btreet, Philadelphia.
HraB'S Offices and Depots,
North Pennsylvania Railroad and Master Street,
hlriga Avenue and Willow street.
Willow birt Wharf. Delaware avenue.
Twenty-aevond and Hamilton atresia.
Ninth Htret t and Washington avenue.
Pine Street W fcarf. fcchujiUlL
No. Mslu btreet, Oeroiantown.
Ho. Si North Kecond street, Camden, N. J., and
t ape Hay. New Jersey.
1871. I'rW fr for Families, Offlcea, etc 13TL'
8 pounds dally, 60 ceuu per week.
g u t " "
15 M M M M
J0 (I Jjj U M U
Half bushel or forty pounds, so cenu each dej
llvtr. 4 iw let