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 BV 764 .U54 W44 1911 
 White, Edwin Augustine, 
 
 1856-1925. 
 American church law 
 
JUN 3 1914 
 
 AMERICAN 
 
 CHURCH LAW 
 
 A GUIDE 
 
 AND MANUAL FOR RECTORS, WARDENS, 
 
 AND VESTRYMEN 
 
 THE PROTESTANT EPISCOPAL CHURCH IN 
 THE UNITED STATES OF AMERICA 
 
 New Edition, Thoroughly Revised and Brought into 
 
 Harmony with the Constitution and Canons of 1910 
 
 and the Statute Laws and Canons of the Several 
 
 States and Dioceses 
 
 By the Reverend 
 
 EDWIN AUGUSTINE 'WHITE, D.CL. 
 
 Presbyter of the Diocese of Newark 
 Sometime Attorney and Counsellor-at-Law 
 
 NEW YORK 
 EDWIN S. GORHAM, Publisher 
 
 37 East 28th Street 
 1911 
 
PREFACE TO THE NEW EDITION. 
 
 IN sending forth the Second Edition of American Church Law 
 I cannot forbear to express my thanks to the many Bishops, 
 Clergy and Laymen of the Church for their kind recognition 
 of this effort to give them an exposition of their legal rights and 
 duties. Since the publication of the First Edition, the Constitution 
 and Canons of the General Convention have undergone a radical 
 revision. Many changes have also been made in the Constitution 
 and Canons of the several Dioceses, and in the Statute Laws 
 affecting the Church, of the various States. The present Edition 
 has been thoroughly revised and corrected to conform to these 
 changes. E. A. W. 
 
 Easter-tide, 191 i. 
 
 Copyright, 1898, 
 
 BY 
 
 JAMES POTT & COMPANY. 
 Copyright, 1911, 
 
 BY 
 
 EDWIN S. GORHAM. 
 
PREFACE. 
 
 IT IS not without some hesitation that the author presents this 
 work to his brethren of the Church. Its appearance is due to 
 the request of many of both clergy and laity, and to their 
 representations that the information it contains has long been 
 needed. 
 
 The object of this book is two-fold : First, to trace the continuity 
 of the Church, known as " the Protestant Episcopal Church in the 
 United States of America," with the " Church of England " ; to 
 show that the Church in America is no new creation, formed by 
 the Convention of 1789, but that she is the same identical body 
 formerly known as the Church of England in the Colonies, " the 
 change of name being only a dictate of the change of circum- 
 stances" ; that, as she professes the same doctrine, and engages in 
 the same worship, so doth she hold to the same discipline with 
 the Church of England ; and that the English Ecclesiastical Law 
 is of force in the American Church to-day, so far as it is applicable 
 to our circumstances, and not superseded by positive enactments 
 of our own. 
 
 Second, To give the Law of the Church in America, with cita- 
 tions of authorities, civil and ecclesiastical. 
 
 For this purpose, the author has deemed it advisable to divide 
 the work into two parts. Part I., " Sources and Sanctions of Amer- 
 ican Church Law," includes the first object of the work. Part II., 
 " The Law of the Church," includes the second object. 
 
 The author has not endeavored to set forth a complete compen- 
 dium of the whole Law of the Church, only of that portion which 
 relates to the rights and duties of Rectors, Wardens and Vestry- 
 men in their joint and several relations, and to the proper conduct 
 of parochial matters. 
 
 In interpreting the law, and applying the decisions of the courts 
 and the opinions of authorities to propositions stated, the author 
 has sought to be guided by the principles which were once familiar 
 
4 LAW OF THE CHURCH. 
 
 to him as a practising lawyer, and which, he trusts, he has not 
 entirely forgotten. Conscious, however, of his liability to err in 
 judgment, he has submitted his manuscript to an able jurist among 
 the laity, learned also in Ecclesiastical Law, and much of it to one of 
 the most learned of the clergy of the Church, and availed himself 
 of their suggestions. 
 
 The reader will, of course, understand that by the " American 
 Church " in the following pages is meant the " Protestant Episcopal 
 Church in the United States of America " ; the title " American 
 Church " being used simply for brevity, and to avoid the constant 
 repetition of one that is awkward and cumbersome. 
 
 By request of a number of the clergy, the author has added a sup- 
 plement, containing certain " Rules of Order," with explanations of 
 the same, which he trusts may prove helpful to the Rectors of Par- 
 ishes in the conduct of Parish and Vestry meetings. 
 
 Appendices, containing certain forms required for different pur- 
 poses by the General or Diocesan Canons of the Church, have also 
 been added. The author has refrained from inserting any forms re- 
 quired by the Statute Law, as such forms are so materially variant 
 in the different States as to render it impossible to set forth any that 
 would be of practical value in any considerable number of Dioceses. 
 
 The services of one learned in legal lore should, in most cases, 
 be employed in the drawing up of statutory forms. 
 
 The author trusts that this work may not only be found useful 
 as a guide and authority for Rectors, Wardens and Vestrymen in 
 the various matters with which they may have to deal, but also 
 that it may serve as an educator for Churchmen concerning the 
 principles and laws of their Church. 
 
 In conclusion, the author desires to express to the secretaries of 
 the several Diocesan Conventions his appreciation of their kindness 
 in furnishing him with copies of the Constitutions and Canons of 
 their respective Dioceses. 
 
 E. A. W. 
 Christ Church Rectory, 
 
 Bloomneld, New Jersey, June, 1898. 
 
CONTENTS. 
 
 PARTI. 
 
 Sources and Sanctions of American Church Law* 
 
 CHAPTER I. 
 
 OF THE ENGLISH ECCLESIASTICAL LAW. 
 
 PAGE 
 
 Statement of the four Codes or systems of laws and regula- 
 tions, which admittedly govern the Church 15 
 
 Statement of claim that a fifth Code, viz., The English Eccles- 
 iastical Law, is also in force in the American Church, so 
 far as it is applicable and not superseded by enactments 
 of our own 15 
 
 Statement of three propositions regarding the English Eccles- 
 iastical Law. 1st. That it was the Law of the Church in 
 the Colonies up to the time of the Revolution, 1775. 2d. 
 That it was the Law of the Church during the Revolu- 
 tionary War, and after the war, up to the holding of the 
 first complete Convention of the Church in 1789. 3d. 
 Tha<t it continued to be the Law of the Church after 1789 
 and remains the Law of the Church to-day, so far as it is 
 applicable and not superseded by enactments of our own. 16 
 
 Question considered, How much of the English Law, Common 
 
 and Statute, the Colonists brought with them 17 
 
 Laws or Codes of Law the subjects of inheritance 18 
 
 Common Law of England, the birthright of the Colonists 19 
 
 Common and Statute Law of England, the Common Law of 
 the Colonists 21 
 
 Development of English Ecclesiastical Law during five periods 
 — British period to 597 — Anglo-Saxon period to 1066— 
 
6 LAW OF THE CHURCH. 
 
 Anglo-Roman period to Reformation — Anglican period to 
 
 time of Colonization of America 23 
 
 Date of Colonization 33 
 
 The English Ecclesiastical Law in force at time of Coloniza- 
 tion 34 
 
 A Common Law Ecclesiastical, forming part of the great 
 
 body of Common Law 37 
 
 CHAPTER II. 
 
 OF THE ENGLISH ECCLESIASTICAL LAW IN THE COLONIES AND 
 THE STATES PRIOR TO I789. 
 
 Common Law Ecclesiastical, and Canon Law of the Church of 
 
 England, part of the Common Law of the Colonies 40 
 
 Church of England in the Colonies. First proposition, That the 
 English Ecclesiastical Law was the Law of the Church in 
 the Colonies up to the time of the Revolution 42 
 
 Colonial legislation relating to the Church in the different 
 
 Colonies 43 
 
 Relation of the Society for the Propagation of the Gospel in 
 
 Foreign Parts to the Colonial Church. 46 
 
 Bishop of London, Diocesan of the Colonial Church. His juris- 
 diction acknowledged and recognized 47 
 
 Colonial Church identical with Church of England and gov- 
 erned by English Ecclesiastical Law 50 
 
 Consideration of second proposition, That the English Ecclesias- 
 tical Law was the law of the Church during the Revolu 
 tion and thereafter until 1789 51 
 
 Continuity of the Church's identity. Citati ns of historical 
 facts and authorities, showing the mind of the Church re- 
 garding her identity 52 
 
CONTENTS. 7 
 
 An undeniable proposition stated. Deductions therefrom 
 proving continued identity of the Church with the Church 
 of England and that it continued to be governed by the 
 English Ecclesiastical Law up to 1789 58 
 
 CHAPTER III. 
 
 OF THE ENGLISH ECCLESIASTICAL LAW IN THE STATES 
 SUBSEQUENT TO 1 789. 
 
 Action taken by the Churches in the several States for a 
 
 union thereof 64 
 
 The Conventions of 1789 and 1792, their authority, aims and 
 
 enactments 75 
 
 The American Church after 1789 essentially identical and 
 
 continuous with the Church of England 86 
 
 Consideration of the third proposition, That the English Eccles- 
 iastical Law continued to be a part of the Law of the 
 American Church after 1789, and remains a part of the 
 Law to-day, so far as it is applicable and not superseded by 
 enactments of our own 92 
 
 Intent of the Church as to the continuing force and obligation 
 
 of the English Ecclesiastical Law 92 
 
 Concordat of the American Church with the Church of Eng- 
 land in order to have American Bishops consecrated in 
 England 96 
 
 The Common Law, the Law of the several States. Argu- 
 ment stated 104 
 
 Argument from propositions proven as to the continuous and 
 
 binding force of English Ecclesiastical Law 104 
 
 Citation of authorities, and opinions of the courts as to the 
 
8 LAW OF THE CHURCH. 
 
 continuing force and obligation of the English Ecclesias- 
 tical Law in the American Church 106 
 
 Conclusions derived from preceding investigations no 
 
 PART H. 
 The Law of the American Church. 
 
 CHAPTER I. 
 
 OF INCORPORATION OF CHURCHES. 
 
 Purpose and benefits of Incorporation 117 
 
 Statutory and Canonical requirements for Incorporation 118 
 
 Notice to be given. How, when and where 120 
 
 Place of meeting 121 
 
 Requirements for valid meeting. Quorum. Officers 121 
 
 Scope of meeting 123 
 
 Who may vote 124 
 
 Conduct of election, and qualifications of officers 125 
 
 Certificate of election 126 
 
 Terms of officers elected 129 
 
 When Incorporation complete 129 
 
 CHAPTER II. 
 OF ANNUAL PARISH MEETINGS. 
 
 When and where held 131 
 
 Requirements of notice 131 
 
 Purpose of meeting. What questions may be considered 13a 
 
CONTENTS. 9 
 
 Quorum 134 
 
 Presiding officer of meeting ; his rights and duties 135 
 
 Qualifications of voters 139 
 
 Qualifications of Wardens and Vestrymen 145 
 
 Certificate of election 148 
 
 Special Parish meetings ; when necessary ; how called and 
 
 conducted , 149 
 
 Name of Parish, how changed 151 
 
 CHAPTER III. 
 
 OF THE VESTRY. 
 
 Component parts 153 
 
 Their powers ; how derived, and how construed 154 
 
 Their custody of the real estate of the Corporation 157 
 
 Must act in their corporate capacity 161 
 
 The extent of their power over the Church buildings 162 
 
 Pews and pewholders 164 
 
 Their custody of the Church revenues 165 
 
 By-laws 167 
 
 Their power to elect a Rector 168 
 
 Not an Exclusive Power 175 
 
 Extent of their power in the selection of organist, members of 
 
 the choir, etc 179 
 
 In absence of Statute Law, cannot alienate Church property 
 
 without consent of Rector 182 
 
 Vacancies in a vestry, how filled 186 
 
 Change in number of Vestrymen, how made 187 
 
io LA W OF THE CHURCH. 
 
 CHAPTER IV. 
 
 OF VESTRY MEETINGS. 
 
 By whom called 190 
 
 Notice; how given and when 191 
 
 When meeting legal without notice 192 
 
 Quorum. Presence of each of three integral parts necessary. 193 
 
 Presiding officer ; his rights and duties 197 
 
 Casting vote 199 
 
 Business ; how conducted 202 
 
 When meetings legal without presence of Rector 204 
 
 CHAPTER V. 
 
 OF THE RECTOR. 
 
 His election and call 207 
 
 Letters of Transfer 209 
 
 A qualified Minister 211 
 
 Bishop's consent necessary before election valid 211 
 
 Office of Institution discussed. Powers of Rector thereunder. 223 
 
 Is called for life 2^0 
 
 Dissolution of Rectorship 241 
 
 Right to a hearing before Rectorship can be terminated 245 
 
 Trial of a Clergyman 252 
 
 An integral part of the Vestry 254 
 
 Right to call Parish and Vestry meetings 254 
 
 Presiding officer at Parish and Vestry meetings 255 
 
 Right to vote, and give casting vote in case of tie 255 
 
 Right to decide as to qualifications of voters 255 
 
 Right to the keys and control of the church and other parish 
 
 buildings 256 
 
CONTENTS. ii 
 
 Exclusive control over the services of the Church 264 
 
 Control over the music of the Church 267 
 
 His right to appoint the organist and members of the choir... 270 
 
 Control of the organ 274 
 
 Control over the ornaments of the Church 275 
 
 His right to repel from the Holy Communion 279 
 
 His right to appoint Assistant Minister 285 
 
 The Rector's duties 286 
 
 CHAPTER VI. 
 
 OF WARDENS AND VESTRYMEN. 
 
 Brief history of the office and duties of Church Warden in the 
 
 Church of England 289 
 
 Duties of Wardens 295 
 
 Qualifications of Wardens 299 
 
 How appointed 299 
 
 Wardens must act together ; no power separately unless 
 
 specially delegated 302 
 
 Have the custody of the Church under the Rector 304 
 
 Vestrymen 306 
 
 Qualifications of Vestrymen 307 
 
 Have no power as separate members of the Vestry ; can only 
 
 act in Vestry assembled 307 
 
 Duties of Vestrymen 308 
 
 SUPPLEMENT. 
 
 WITH RULES OF ORDER. 
 
 Rules of Order for the proper Conduct of Parish and Vestry 
 
 Meetings 313 
 
t2 LAW OF THE CHURCH. 
 
 APPENDICES. 
 WITH FORMS. 
 
 A. Forms for the Incorporation of Churches 321 
 
 B. Forms of Notice of Annual Elections 323 
 
 C. Forms relating to the Election of Wardens and Vestrymen 324 
 
 D. Forms of Certificate of Lay Deputies to Diocesan Conven- 
 
 tions 326 
 
 E. Forms relating to the Transfer of real Church Property.... 327 
 
 F. Forms for Organizing Missions and Parishes 329 
 
 G. Forms for Postulants and Candidates for Holy Orders 333 
 
 H. Miscellaneous Forms 344 
 
 TABLE OF CASES 349 
 
 INDEX 355 
 
PART ONE. 
 
 Zhc Sources ant) Sanctions of 
 Hmerican Cburcb Xaw, 
 
CHAPTER I. 
 
 OF THE ENGLISH ECCLESIASTICAL LAW. 
 
 IT IS necessary that we first come to a clear under- 
 standing as to what constitutes the laws and reg- 
 ulations for the government of the Church, before 
 proceeding to apply those laws and regulations to par- 
 ticular cases. 
 
 It may be assumed, as beyond question, that there 
 are at least these lour systems or codes of law to which 
 the Protestant Episcopal Church in the United States 
 of America is subject, and by which it is governed: 
 
 First. The Book of Common Prayer, its Rubrics, and, 
 in some particulars, the Articles. 
 
 Second. The Constitution and Canons of the Church, as 
 set forth and established by the General Conven- 
 tion. 
 
 Third. The Constitution and Canons of the Church in 
 the several dioceses, of force only in the respective 
 dioceses, and subordinate to the authority of the 
 General Convention. 
 
 Fourth. " The Civil laws of the States affecting the 
 Church and its members, in regard to corporate and 
 personal rights, civil privileges, and the acquisition 
 and preservation of property." 
 To these four codes, to which the Church is admit- 
 tedly subject, should be added, in the opinion of most 
 
 of our canonists, a 
 
 Fifth. The English Ecclesiastical Law in force at the 
 time of the colonization of America, so far as it is ap- 
 
16 LA W OF THE CHURCH. 
 
 plicable to our condition and circumstances,and not 
 superseded by enactments of our own, forming the 
 Common Law of the Church in the United States. 
 
 This opinion is controverted by a few canonists, who 
 take the position " that no part of the English Eccles- 
 iastical Law is, or ever has been, as such, of binding 
 obligation " in the American Church. 
 
 There is no question as to the binding obligation 
 upon the Church of the first four Codes of Law above 
 stated : the only question is, as to the force and oper- 
 ation of the English Ecclesiastical Law upon the 
 Church in the United States, but a most important 
 question, for upon the accepted answer thereto de- 
 pends the character of our whole system of Ecclesias- 
 tical jurisprudence. 
 
 In my judgment, the only answer that can be given 
 to this question, the only answer that is morally, his- 
 torically and legally correct, is an affirmative one ; that 
 the Ecclesiastical Law of England, in force at the time 
 of the colonization of America, is, so far as it is appli- 
 cable to our condition and circumstances, and not su- 
 perseded by enactments of our own, of force and obli- 
 gation in our Church to-day. 
 
 Firm in this belief, I shall seek to prove, by cita- 
 tions from the opinions of men learned in legal lore, 
 from the decisions of our highest courts, both State 
 and National, from the opinions of individual Bishops, 
 and of the House of Bishops, and from the declara- 
 tions of the Church herself in General Convention as- 
 sembled, that the Ecclesiastical Law of England, with 
 certain modifications, was the law of the Church in 
 the Colonies up to the time of their separation from 
 the mother country in 1776; that it was the law of 
 
ENGLISH ECCLESIASTICAL LAW. 17 
 
 the Church during the Revolutionary War, and there- 
 after, until 179, when the Church, complete in her 
 three orders of the ministry, came into possession of 
 all the constituent elements of a Church, and first as- 
 sumed the form and character of a National Church ; 
 and that it was then, thereafter, and still continues to be, 
 the law of the American Church, so far as it is adapted 
 to our circumstances and not superseded by legislation 
 of our own. 
 
 In order to fully appreciate the arguments, both 
 for and against the position that the American Church 
 is or has been under the government of English 
 Church Law, or any portion thereof, it will be neces- 
 sary to first consider briefly the question, as to how 
 much, if any, of the Common Law of England, to- 
 gether with the Statute Law thereof, in force at the 
 time of the emigration of the Colonists, they brought 
 with them to this country. The analogies of the 
 Common Law of the State have so important a bear- 
 ing upon the Ecclesiastical Common Law as to make 
 such a consideration imperative. 
 
 Judge Hoffman in his "Law of the Church" {p. 14) 
 lays down what he calls 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 
 Colonies, was brought to this land from the mother 
 country, and formed the basis of Colonial Law." Un- 
 deniable as this proposition seems to be, yet it is 
 not admitted by some who endeavor to prove that 
 English Ecclesiastical Law has no binding force in the 
 American Church, and who claim that neither a Na- 
 tion nor a Church can " inherit a law" ; that the laws 
 of one Nation or Church can only become the laws of 
 
1 8 LAW OF THE CHURCH. 
 
 another Nation or Church, though once subject to that 
 Nation or Church, by " adoption or consent, either ex- 
 press or by such clear implication as to be equivalent to 
 a legislative act." 
 
 The theory, by them advanced, seems to resolve it- 
 self into some such proposition as this, that a law or 
 code of laws cannot pass by inheritance from one Na- 
 tion or Church to another Nation or Church, however 
 close their relations may have been or still may be. 
 Such a proposition I believe to be untenable, and op- 
 posed to the uniform opinions of our learned jurists, 
 and the decisions of our highest courts. 
 
 And first, what is the meaning and scope of the verb 
 " to inherit" ? Among the definitions of the word are 
 these : " To get by succession as the representative of 
 the former possessor"; " to receive as a right or title 
 descendible by law from an ancestor at his decease" ; 
 "to receive by transmission in any way"; "to have 
 imparted to, or conferred upon " ; " to acquire from any 
 source"; "to possess"; "to enjoy"; "to become 
 possessed of" ; " to take as a possession by gift or di- 
 vine appropriation." 
 
 " Inheritance " is also defined as "a possession re- 
 ceived by gift or without purchase, a permanent posses- 
 sion." " Possession, ownership, acquisition," "a birth- 
 right, a right to which one is entitled by birth." 
 " Birthright " is defined as "any right or privilege to 
 which a person is entitled by birth, such as an estate 
 descendible by law to an heir, or civil liberty under a 
 free constitution." It " is applicable to any right 
 which results from descent." From these definitions 
 it follows that a right to which we are entitled by 
 birth is a birthright. 
 
ENGLISH ECCLESIASTICAL LAW. i 9 
 
 If we are subject to a law, then are we entitled to 
 receive whatever benefits and protection that law is cap- 
 able of bestowing, and if entitled to it, then is it our 
 birthright. 
 
 No one will deny that the Colonists were subject to 
 the laws of England, and therefore entitled to the ben- 
 efits and protection of those laws ; but if entitled to 
 them, then were those laws, including the Common Law, 
 their birthright, which they took with them, as they 
 took their nature, whenever they transferred their dom- 
 icile from the mother country to a daughter colony 
 The truth of this conclusion, that the Common Law of 
 England was the birthright of the Colonists, and was 
 brought to America by them, is well attested by the 
 great commentators on law and by the decisions of the 
 courts. 
 
 In his work on the Constitution, Judge Story, one of 
 the ablest jurists this or any other country has pro- 
 duced, says : " Ever since the settlement of the Colo- 
 nies, the universal principle has been, that the Com- 
 mon Law is our birtliright and inheritance, and that 
 our ancestors brought hither with them, upon their 
 emigration, all of it which was applicable to their situa- 
 tion."— (i Story on the Con., $th Ed., Sec. 157.) 
 
 Chancellor Kent, in his Commentaries on American 
 Law, says : " It is a principle in the English Law, that 
 English subjects going to a new and uninhabited coun- 
 try, carry with them, as their birthright, the Laws of 
 England existing when the colonization takes place." — 
 (1 Kcnfs Com., 14th Ed., 473, Note b.) 
 
 Chancellor Walworth in pronouncing the opinion of 
 the court in DeRuyterw. Trustees of St. Peter's Church 
 (3 Barb. Chan. Rep., 114), uses this language : 
 
2o LA W OF THE CHURCH. 
 
 " It is a natural presumption and therefore adopted 
 as a rule of law, that on the settlement of a new terri- 
 tory by a colony from another country, and where the 
 Colonists continued subject to the government of the 
 mother country, they carry with them the general laws 
 of that country so far as those laws are applicable to 
 the Colonists in their new situation, which thus become 
 the unwritten law of the colony until altered by com- 
 mon consent or legislative enactment." 
 
 Judge Story, in pronouncing the opinion of the Su- 
 preme Court of the United States in the Town of Paw- 
 let v. Clark et al. (9 Cranch, 296), says : 
 
 "Independent, however, of such a provision, we 
 take it to be a clear principle that the Common 
 Law in force at the emigration of our ancestors 
 is deemed the IrirtlirigJit of the Colonies, unless so 
 far as it is inapplicable to their situation or repugnant 
 to their own rights and privileges." And in the same 
 court, in the case of Van Ness v. Packard (2 Peters, 137), 
 he says, speaking of the Common Law of England, 
 "Our ancestors brought with them its general princi- 
 ples, and claimed it as their birthright." 
 
 Other authorities to the same effect, might be cited 
 almost ad infinitum, but those already cited are suffi- 
 cient to prove the correctness of the propositions 
 sought to be proven thereby, viz.: First, that laws, or 
 systems of laws are the subject of inheritance and 
 claimable by birthright ; second, that the Common 
 Law of England was the birthright of the Colonists ; 
 and third, that they claimed this birthright, and 
 brought with them to this country the great body of 
 that Common Law forming the basis of the Colonial 
 Law. 
 
ENGLISH ECCLESIASTICAL LAW. 21 
 
 The question next arises, Of what did this body 
 of Common Law, which the Colonists brought with 
 them, consist ? A question all the more important be- 
 cause of its bearing, by analogy, upon the question to 
 be considered later, as to the extent, if any, of the 
 force and obligation of the Canon Law of England, 
 (as part of the Ecclesiastical Law thereof) upon the 
 American Church. 
 
 No better definition of Common Law can be given 
 than Judge Blackstone gives in his Commentaries, 
 which are universally recognized as of the highest au- 
 thority. He says : " The lex non scrlpta, or unwritten 
 law, includes not only general customs, or the Common 
 Law, properly so called, but also the particular customs 
 of certain parts of the kingdom; and likewise those 
 particular laws that are by custom observed only in 
 certain courts and jurisdictions. . . . The monu- 
 ments and evidences of our legal customs are con- 
 tained in the records of the several courts of justice, in 
 books of reports and judicial systems, and in the treat- 
 ises of learned sages of the profession, preserved and 
 handed down to us from the times of highest anti- 
 quity." — {Blackstone s Com. [Hammond's Ed.~\ 166.) 
 
 But the body of Common Law, which the Colonists 
 inherited, and brought over with them to this country, 
 consisted not alone of the lex non scripta, but also of a 
 part of the lex scripta, the Statute Law of England at 
 the time of their emigration, "applicable to their sit- 
 uation, and in amendment of the law." This is a well- 
 established doctrine, as stated by Chancellor Kent : "It 
 is also the established doctrine that English Statutes f 
 passed before the emigration of our ancestors, and ap- 
 plicable to our situation, and in amendment of the law, 
 
22 LA W OF THE CHURCH. 
 
 constitute a part of the Common Law of this country." 
 — (i Kent Com., 14th Ed ', 473.) 
 
 The doctrine is also well-expressed by Mr. West in 
 an opinion given in 1720. "The Common Law of Eng- 
 land is the Common Law of the Plantations, and so ail 
 statutes in affirmance of the Common Law antecedent 
 to the settlement of a colony, unless there is some pri- 
 vate Act to the contrary ; though no statutes made 
 since those settlements are there in force, unless the 
 colonies are particularly named. Let an Englishman 
 go where he will, he bears as much of law and liberty 
 with him as the nature of things will bear." — {Chalmers* 
 " Opinions of Eminent Lawyers" p. 206.) 
 
 The first Continental Congress also claimed the ben- 
 efit of this Statute Law of England as Kent tells us in 
 his Commentaries. He says : 
 
 "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 experi- 
 ence respectively found to be applicable to their sev- 
 eral local and other circumstances." — {"Journals of 
 Congress," October 14, 1774.) (1 Kent, 14th Ed., 473, 
 Note (b) ) 
 
 The highest courts of this country have universally 
 taken the same view. Chancellor Walworth says : 
 
 " The Common Law of the mother country as modi- 
 fied by positive enactments, together with the Statute 
 Laws, which are in force at the time of the emigration 
 of the Colonists, became in fact the Common Law 
 rather than the Common and Statute Law of the Col- 
 ony. The Statute Law of the mother country, therefore, 
 when introduced into the Colony of New York by com- 
 
ENGLISH ECCLESIASTICAL LA W. 23 
 
 mon consent, because it was applicable to the Colo- 
 nists in their new situation, and not by legislative enact- 
 ment, became a part of the Common Law of this prov- 
 ince." — (Bogardus v. Trinity Church. 4 Paige Ch. Rep., 
 178.) (Cited and approved in 46 N. Y. Rep., 131.) 
 (See also De Ruyter v. Trustees et al., 3 Bard. Ch. Rep., 
 119; Canal Appraisers v. the People et al., 17 Wend., 
 571 : Humbert v. St. Stephens Church, 1 Edwards' Ch. 
 Rep. 308 ; Commonwealth v. Leach et al. 1 Mass. 60 ; 
 Same v. Knowlton, 2 Mass., 534; Sackett v. Sackett, 8 
 Pick, 309 ; Patterson v. Winn, 5 Peters, 232 ; Boehm v. 
 Engle, 1 Dallas, 19.) 
 
 Having-, in my judgment, established conclusively 
 the truth of the proposition that the Colonists brought 
 with them not only the Common Law of England but 
 also such of the English Statutes as existed at the time 
 of their emigration, and which they had found appli- 
 cable to them in their new situation, and observing 
 that such statutes formed a part of the Common Law 
 of the Colonists, let us now turn our attention to the 
 Ecclesiastical Law of England, and observe what com- 
 posed that Law at the time of the colonization of Amer- 
 ica. 
 
 A brief review of the history and development of the 
 English Ecclesiastical Law will help us to a more cor- 
 rect understanding as to what constituted that Law at 
 the time mentioned. 
 
 We find fiom the decisions of the English jurists, 
 that even before the landing of St. Augustine upon the 
 shores of Britain, there had grown up a body of Com- 
 mon Ecclesiastical Law, separate and distinct from the 
 Ecclesiastical Law that prevailed among the Churches 
 on the continent. 
 
24 LA W OF THE CHURCH. 
 
 Dawson in his " Origin of Laws" after reviewing the 
 history of the Church in certain particulars in the first 
 six centuries, says : " From all which put together and 
 well considered, these four things are plain and easy to 
 be observed. First, that the Britannic Church had its 
 ancient laws and customs ; and, by consequence, had 
 an established way and form of government long before 
 those days [the coming of St. Augustine]. Secondly, 
 that it was held unlawful for them to change or alter 
 any of these laws or customs sine consensu suorum, as 
 Bede [expresses it] ; sine consensu sues gentis, as Alfred 
 [says] ; and, by consequence, that all Ecclesiastical mat- 
 ters were determined among themselves, and within the 
 boundaries of their own Nation, and not in any wise sub- 
 ject to any Foreign Power and Jurisdiction. Thirdly, 
 that the way which was used by them, for the determin- 
 ing of such matters, was that of a National Synod. And, 
 lastly, that the usual members of those Synods were 
 optimates suorum, et alii viri docti, by which we sup- 
 pose to be meant their bishops and other learned men 
 of the clergy ; because Bede tells us, in the next 
 words, that when the business about calling another 
 Synod was agreed on, there met together, in a Synod, 
 seven British Bishops and a great many other very 
 learned men. — {Book VI., Cap. 4.) 
 
 Augustine, Abbot of St. Andrew's in Rome, and the 
 representative of Pope Gregory, arrived in Britain 
 in the year 597, and while he endeavored to bring the 
 British Church into communion with the Roman Pon- 
 tiff, there is no evidence that he made any great or ma- 
 terial change in its ancient laws and customs. On the 
 contrary, when he wrote to Pope Gregory complaining 
 of the divergence of customs in the British Church 
 
ENGLISH ECCLESIASTICAL LA W. 25 
 
 from the Roman Church, Gregory replied, " We are 
 not to love customs on account of the place from 
 whence they come, but let us love all places where 
 good customs are observed. Choose, therefore, from 
 every Church whatever is pious, religious, and well or- 
 dered; and when you have made a bundle of good rules, 
 leave them for your best legacy to the English." 
 
 A Synod of seven British Bishops met Augustine at 
 a place afterward called "Augustine's Oak," A.D. 601. 
 He offered to receive them into union with the Roman 
 Church if they would consent to three changes in their 
 customs, viz.: The celebration of Easter at the proper 
 time, the performance of the Rite of Baptism accord- 
 ing to the custom of the Roman Church, and join with 
 him in preaching the Gospel to the English Nation, 
 promising on the part of Rome, "We will readily tol- 
 erate all the other things you do, though contrary to 
 our customs." 
 
 From the time of Augustine down to the Conquest, 
 a.d. 1066, there is a variety of original documents in 
 existence which give us much information as to the 
 Canons and Laws which prevailed during that time. 
 
 The Record Commission of 1821, by gathering these 
 various documents together, has thrown great light 
 upon the antiquities of English Law. The laws of the 
 Saxon kings are published in a volume called "Ancient 
 Institutions of England." A certain portion of these 
 laws are called " Monumcnta Ecclesiastical" and relate 
 in many particulars to the affairs of the Church. 
 Among these Monumenta is a work called " Liber Pen- 
 itentialis of Theodore, Archbishop of Canterbury," who, 
 we are told by Kemble in his " Saxons in England" 
 "was the first Archbishop whose authority was uni- 
 
26 LA W OF THE CHURCH. 
 
 versally acknowledged in England." It consisted of 
 "a full code of regulations concerning penance, made 
 in the year 669, and by the authority, it would seem, 
 of the Archbishop alone." 
 
 Frequent Synods, or "Gemotes," as Lord Coke tells 
 us Synods were termed in Saxon times, were held dur- 
 ing the Saxon period. Judge Hoffman in " The Lata 
 of the Church" {pp. 49-53), mentions several of these 
 Gemotes with citations of their acts, and from them 
 draws this conclusion : " From these citations there is 
 ample reason to conclude that a great principle of the 
 Saxon Church was that which we find so strongly as- 
 serted in later times, viz.: that while the councils of 
 the clergy were sufficient to establish laws for the gov- 
 ernment of the clergy, yet where the laity were con- 
 cerned, they must have been passed or ratified by the 
 Witan, in which a representation of that order existed." 
 To establish the correctness of his conclusion, that no 
 laws could be passed binding upon the laity, unless 
 passed or ratified by some council in which they had a 
 representation, he cites the following: 
 
 " Even so in the Saxon times, if there was any sub- 
 ject of laws for the outward peace and temporal gov- 
 ernment of the Church, such laws were properly or- 
 dained by the king and his great council of clergy and 
 laity intermixed, as our Acts of Parliament are still 
 made. But if there was any doctrine to be tried, or 
 any exercise of pure discipline to be reformed, then the 
 clergy of the great Synod departed into a separate 
 Synod, and there acted as the proper judges ; only 
 when they had thus provided for the state of religion, 
 they brought their canons from the Synod to the great 
 council, to be ratified by the king with the advice of 
 
ENGLISH ECCLESIASTICAL LA W. 27 
 
 his great men, and so made the constitutions of the 
 Church to be the laws of the realm. And the Nor- 
 man revolution made no change in this respect. Thus 
 the case stood till the Act of Submission of25th Henry 
 VIII." — {Kenneth, "Ecclesiastical Synods" p. 249.) 
 
 In the year 1066, William the Conqueror, a Norman, 
 ascended the throne of England. From that time 
 down to the Reformation, the legislation of the Church 
 (exclusive of the Acts of Parliament) is contained in the 
 legatine and provincial constitutions. 
 
 The legatine constitutions are to be found in the or- 
 dinances of Otho(A.D. 1237), and Othobon (a.d. 1268); 
 the provincial constitutions, in the constitutions of the 
 Archbishops of that period. Regarding the legal force 
 of these legatine constitutions, Judge Hoffman ("Lazv 
 of 'the Church," p. 54) says: "There is much reason to be- 
 lieve that the laws of the legates Otho and Othobon 
 were not regarded as obligatory without some recog- 
 nition in the councils, or that they had become rati- 
 fied by use and custom." Several authorities are cited 
 in support of his conclusion. 
 
 The history of the period extending from the time 
 of St. Augustine, and particularly from the ascent of 
 William the Conqueror to the throne of England, A.D. 
 1066, down to the Reformation in the reign of Henry 
 VIII. during the sixteenth century, is a history of the 
 gradual and continued efforts of the Popes to extend 
 the power of the Roman Church, with its body of 
 Canon Law, over the English Church, and the re- 
 peated and ofttimes successful efforts of the English 
 Church against the unlawful encroachments upon its 
 ancient rights and liberties as an independent branch 
 of the Catholic Church. The English Church never 
 
28 LA W OF THE CHURCH. 
 
 ceased to make most strenuous resistance to usurped 
 power, and the Reformation was but the effectual car- 
 rying out of this well settled policy of the Church, and 
 Henry VIII. only carried to completion what his pred- 
 ecessors had begun. He simply exercised the right to 
 shake off the usurped power of Rome — a right which 
 was his, because it is a right original and inalienable; 
 a right which the State could not transfer, nor the 
 Church ; tself suppress. 
 
 While there can be no question as to the ever con- 
 tinuing resistance of the English Church to the usurpa- 
 tions of Rome, still, even if she had tamely submitted 
 thereto without protest, yet, because she had once 
 been an independent Church, she still possessed the 
 inalienable right, whenever she chose, to throw off that 
 usurpation. For no lapse of centuries nor the assent 
 of successive generations could barter away the rights 
 and liberties of a once independent Church. Usurpa- 
 tion, however long continued, is usurpation still, accord- 
 ing to the old maxim of the law, " Adversus furem 
 cetcrna and or it as esto." 
 
 The several acts relating to the Church, passed in 
 the reign of Henry VIII., did not create any new 
 laws, " they only restored and vindicated the old, and 
 recovered the ancient jurisdiction of the Crown and 
 Church " It was, properly speaking, a period of Res- 
 toration — (See 4 Blackstonc's Corn's, c. 8; also, opinions 
 of Cok,' and Fitzherbert.) 
 
 Let us now briefly review these acts of Henry VIII. 
 which recovered to the Church its ancient jurisdiction. 
 In the 25th year of Henry VIII. an act was passed for 
 the punishment of heresy, the preamble of which sets 
 forth " the great grievance which the generality of the 
 
ENGLISH E CCLESIA S TIC A L LA W. 29 
 
 words in Popish decrees and acts produced," and states 
 "that the most learned and expert man of the realm, 
 diligently lying in wait upon himself, cannot eschew 
 and avoid the penalty and dangers of the same." 
 — {Gibsons Codex, Vol. I., p. 3^7.) 
 
 In the Act 25 Henry VIII., c. 19 {See Hoffman's 
 "Lazv of the Church" p. 43), was recited a declaration of 
 the clergy, that " many of the constitutions, ordinances 
 and canons, provincial or synodical, were contrary 
 to the laws and statutes of the realm, repugnant to the 
 king's prerogatives, and onerous to the subject." In 
 Burnett's "History of the Reformation' {Vol. IV., pp. 
 143-145) is a compilation of citations from the body of 
 Canon Law, made by Archbishop Cranmer, to prove 
 their inconsistency with the laws of the land. 
 
 The Act 25 Henry VIII., c. 19, authorized the king to 
 appoint thirty-two persons out of the two Houses of 
 Parliament, composed of an equal number of clergymen 
 and laymen, "to view, search and examine the canons, 
 constitutions, ordinances, provincial and synodal, 
 theretofore made, not contrarient or repugnant to the 
 laws and customs of the realm and the prerogative 
 royal." The Act also provided that "such canons, 
 constitutions and ordinances being already made not 
 contrarient or repugnant as aforesaid, should be used 
 and executed as they were afore the making of the Act 
 till such time as they be otherwise ordered by such 
 thirty-two persons." 
 
 The authority of the thirty-two commissioners, ap- 
 pointed by the Act 25 Henry VIII., c. 19, was suc- 
 cessively renewed by Acts 27 Henry VIII., c. 15; 35 
 Henry VIII., c. 16, and by the Act 3 and 4 Edward 
 VI., c. 11. Although the work was compiled, it 
 
30 LA W OF THE CHURCH, 
 
 never became a law, owing to the death of Edward. 
 But the principle announced in the statute creating 
 the commission, that "such canons, constitutions and 
 ordinances being already made not contrarient or re- 
 pugnant as aforesaid, should be nsed and executed as 
 they were afore the making of the Act" became the 
 recognized law of the land. 
 
 The " canons, constitutions and ordinances " re- 
 ferred to in the statute (25 Henry VIII., c. 19), were 
 chiefly those which composed the great body of Eng- 
 lish constitutions, etc., and not the laws prescribed by 
 the Roman power. These are referred to in 25 Henry 
 VIII., c. 21, wherein it is expressly declared that 
 " 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 suf- 
 ferance 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 
 accustomed and ancient laws of this realm, originally 
 established as laws of the same by the said sufferance, 
 consent, and custom, and none otherwise." — {Hoff- 
 man s " Lazv of the ChnrcJi" p. 60.) 
 
 The authorities are well agreed that the great body 
 of the English constitutions, etc., which had formed 
 the law before the Reformation, continued to be che 
 law after the Reformation, except those portions of it 
 which were contrary and repugnant to the Common 
 Law or Statutes of the realm, together with so much of 
 the foreign Canon Law as was adopted by Parliament 
 
ENGLISH ECCLESIASTICAL LAW. 31 
 
 or the courts of England, and also that it continued to 
 be the law of England, until repealed or modified by 
 subsequent legislation. Spelman, in his treatise " De 
 Sepultra " {p. 179), says that the Canon Law as adopted 
 here — the national and provincial councils — all these 
 together, " as they have been heretofore in use, and are 
 not repugnant to the laws and religion of the kingdom, 
 or repealed by the statutes of Henry VIII., or of later 
 times against papal usurpation, are still in force." 
 
 Dale, in his " Clergyman s Legal Handbook'''' (5/// 
 Ed ,p. 4), says: " The canons are Ecclesiastical Laws, 
 consisting of (a) legatine constitutions or ecclesiastical 
 laws made in national synods, and (b) of provincial con- 
 stitutions, or decrees of provincial synods. (See Reeves' 
 ''Hist. Eng. Lata," Vol. I , p. 66; and Burn, E. L., Pre/., 
 p. 22.) By 25 Henry VIII., c. 19, and 1 Eliz., 
 c. 1, it was enacted that the Canon Law should be re- 
 viewed (which was never done), and that until such re- 
 view all canons then existing and not repugnant to 
 the law of the land or the king's prerogative should 
 still be used and executed. Such canons, therefore, 
 are binding on laity and clergy." — (Strange, 1060.) 
 
 In Caudrys case($ Coke's Rep., xxix.), Lord Coke says: 
 " So albeit the kings of England derived their Ecclesi- 
 astical Laws from others, yet so many as were proved, 
 approved and allowed herein, and with a general con- 
 sent, are aptly and rightly called che king's Ecclesias- 
 tical Laws of England." 
 
 In the case of the commendams in Sir John Davies* 
 Reports (p. 198), it is stated: ''A long time before the 
 Canon Law was authorized and published (which was 
 after the Norman Conquest, as was before shown), the 
 ancient kings of England, viz., Edgar, Alfred, etc., 
 
32 LAW OF THE CHURCH. 
 
 have, with the advice of their clergy of the realm, 
 made divers ordinances for the government of the 
 Church of England ; and, after the Conquest, divers 
 provincial synods have been held, and several constitu- 
 tions have been made, in both the realms of England 
 and Ireland; all which are part of our Ecclesiastical 
 Laws at this day." 
 
 A statement is made in the earlier part of the case 
 that the Canon Law therein referred to was probably 
 introduced into England under Stephen, about A.D. 
 1 1 50. 
 
 Chief-Justice Tindale, in the Queen v. Millis (10 
 Clarke and Finnclly, 67$), says: " I proceed in the 
 last place to endeavor to show that the law by which 
 the spiritual courts of this kingdom have, from the ear- 
 liest time, been governed and regulated, is not the 
 general Canon Lav/ of Europe, imported as a body of 
 law into this kingdom, and governing those courts 
 proprio vigore; but instead thereof an Ecclesiastical 
 Law, of which the general Canon Law is no doubt the 
 basis, but which has been modified and altered from 
 time to time by the Ecclesiastical constitutions of our 
 Archbishops and Bishops, and by the legislature of 
 the realm, and which has been known from early times 
 by the distinguishing title of the King's Ecclesiastical 
 Law." "That the Canon Law of Europe does not nor 
 never did, as a body of laws, form part of the law of 
 England has long been settled." — {Ibid, 680.) 
 
 Judge Hoffman justly remarks that this opinion 
 states with great precision and accuracy the rule re- 
 garding the body of foreign Canon Law. 
 
 Lord Abinger in the same case {p. 745), speaking 
 of the Ecclesiastical Law of England, says : " The 
 
ENGLISH ECCLESIASTICAL LA IV. 33 
 
 learned judges have, I think, satisfactorily derived it 
 from the constitutions of the synods and councils in 
 England, before the authority of the Pope was ac- 
 knowledged in this country. I take that part only of 
 the foreign law to be the Ecclesiastical Law of Eng- 
 land, which has been adopted by Parliament or the 
 courts of this country." 
 
 Sir Matthew Hale, in his "History of Common Law" 
 {p. 32), speaking of " the papal or imperial laws," which 
 obtained in England, says: "But their authority is 
 founded merely on their being admitted and received 
 by us, which alone gives them their authoritative es- 
 sence and qualifies their obligation." 
 
 These authorities (not to mention numerous others 
 to the same effect) are surely sufficient to prove the 
 proposition, which some have disputed, that the foreign 
 Canon Law was, in some particulars, in force in Eng- 
 land after the Reformation. By its own power it had 
 no force, but when incorporated into the Acts of Par- 
 liament, and also when adopted by the people of the 
 land, and that adoption confirmed by the opinions of 
 the courts, it was of force in England. It has also 
 been used as the basis of many decisions in later times. 
 — (See Alston v. Attlay, 7 A. and E., 289; Burder v. 
 Mayor, 6, Notes of Cases, Eccl. and M., 1; and Stavely 
 v. Ullathorne, 1 Hardres, 10 1; Blunt 's Book Ch Law, 
 p. 20.) 
 
 We now come to the consideration of the Ecclesiasti- 
 cal legislation of the post-Reformation period. For 
 the purpose of this work, we need only consider so 
 much of it as was put forth prior to the planting of the 
 Church in the Colonies. While it is somewhat difficult 
 to fix the precise date thereof, yet, as Judge Hoffman 
 
34 LA W OF THE CHURCH. 
 
 says : " We cannot practically err if we place this period 
 at the date of the royal charters to the Colonies re- 
 spectively, if followed by a settlement, or the period 
 of the first erection of a church and public worship in a 
 colony." — (" Law of the Church" pp. 60, 61.) (See also 
 Beat v. Fox, 4 Georgia Rep., 404; De Ruyter v. St. 
 Peter s Church, 3 Barb. Ch. Rep., 119.) 
 
 The first ordained minister of the Church of Eng- 
 land in the Colonies was the Rev. Robert Hunt. He 
 embarked from England as a missionary for Virginia, 
 on the 19th of December, 1606, and early in 1^07 held 
 the first services of the Church in the Colonies. 
 
 The first church was built by him at Jamestown 
 some time in the same year. 
 
 Certainly no earlier date than the year 1607 can be 
 taken as the date of the colonization of America and 
 the establishing of the Church in the Colonies. 
 
 What, then, constituted the great body of the 
 Ecclesiastical Law that was in force in England A.D. 
 1607 ? 
 
 Besides the great body of what was known as the 
 " King's Ecclesiastical Law," or " Common Law Eccles- 
 iastical," as Justice Whitlock calls it, were the canoni- 
 cal enactments of the post-Reformation period prior to 
 the year 1607, which included the statutes of Henry 
 VIII., Edward VI., and Elizabeth, the injunctions of 
 Edward VI. and Elizabeth in 1547 and 1559, the Synod 
 of Archbishop Parker, 1 571, the Articuli pro Cleri of 
 1584, the Capitula of London, 1597, and the canons of 
 1603, in the reign of James I. 
 
 With, perhaps, the exception of the statutes of 
 Henry VIII , the most important of these are the 
 canons of 1603, as they superseded the two injunctions 
 
ENGLISH ECCLESIASTICAL LAW. 35 
 
 of Edward and Elizabeth, and either superseded or 
 modified the other institutions above mentioned. 
 Judge Hoffman, after a most exhaustive investigation 
 of the question as to what constituted the law of the 
 Church of England at the time of the emigration of the 
 Colonists to this country, gives as the result of his in- 
 vestigations the following: 
 
 First. That the body of the foreign Canon Law is 
 presumptively 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 Eng- 
 land rests affirmatively upon the party adducing it. 
 
 That the legatine constitutions of Otho and 
 Othobon stand upon the same footing. 
 
 Second. That the provincial constitutions have the 
 presumption of legality and obligation attending them ; 
 and whenever applicable to a given case impose the 
 task upon the adverse party of showing why they 
 should not prevail. 
 
 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 England. 
 
 The comments and writings of eminent men were 
 also sources of information ; and all these, except the 
 statutes, formed the testimonials 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 as the 
 acts after the Reformation, also constituted a portion 
 
36 LA W OF THE CHURCH. 
 
 of that law binding upon the clergy, but only binding 
 upon the laity where admitted by long custom, or ex- 
 press 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 constituted the body of the Law 
 of the Church in the Colonies. Many modifications 
 arose from specific provisions of charters, or particular 
 laws of the Colonial assemblies, as well as from those 
 changes in the situation of the people and the usages 
 of the community, which rendered some provisions in- 
 compatible or inapplicable. — (" Law of the Church? 
 pp. 63, 64.) 
 
 Dr. Blunt, in his " Book of Church Lazv" {yth Ed. , 
 revised by Sir Walter Phillemcre, D.C.L., sums 
 up the Church Law in force in England. His con- 
 clusions are in substantial agreement with Judge Hoff- 
 man's. 
 
 He says (/. 25) : " To sum up, therefore, it may be 
 said, in conclusion, the following are the several ele- 
 ments of Church Law as it is now in force in the Church 
 of England : 
 
 " 1. The Common Law of the realm. 
 
 "2. The English Canon Law, ancient and modern, 
 so far as it is not opposed to the Common and Stat- 
 ute Law or to the royal prerogative. 
 
 '• 3. Foreign Canon Law, so far as it has been ac 
 cepted by custom or by Act of Parliament. 
 
 " 4. The Statute Law of the realm, including the 
 Book of Common Prayer, with its Rubrics and the 
 XXXIX. Articles of Religion." 
 
 I have already spoken of a " Common Law Ecclesi- 
 astical," and that even before the landing of St. Augus- 
 
ENGLISH £ CCL ESI4STICAL LAW. 37 
 
 tine upon the shores of Britain, the British Church pos- 
 sessed a Common Law Ecclesiastical of her own. 
 
 The proposition that there is a Common Law Eccles- 
 iastical, which holds the same relation to the Church 
 as the Common Law does to the State, seems so self- 
 evident a proposition as to require no proof. And yet 
 its truth has been questioned by some. The proposi- 
 tion is not that there is a Common Law Ecclesiastical 
 wholly separate and distinct from the Common Law 
 of the State, but that there is a body of the Common 
 Law which relates to the Church, and is for the regu- 
 lation and the government of Ecclesiastical matters, 
 and which is recognized as being the Common Law of 
 the Church and is known in England as the Common 
 Law Ecclesiastical. It is that portion of the Common 
 Law which relates to the Church as another portion 
 thereof relates to the State. Nor is it possible to sep- 
 arate the one entirely from the other ; they are both 
 but parts of the one great whole, known as the Com- 
 mon Law, which consists of Common Law relating to 
 the State alone, of Common Law relating to the 
 Church alone, and of Common Law relating to both 
 State and Church. 
 
 I cannot but feel that they who question the truth 
 of the proposition that there is a Common Law Eccles- 
 iastical have not made a careful and thorough study 
 of Ecclesiastical Law and history. I have failed to 
 find any of the recognized authorities on Ecclesias- 
 tical Law denying or questioning the proposition. On 
 the contrary, they either assert or assume it to be true. 
 
 Bishop Gibson says : 
 
 " Common Latv, which (saith Sir J. Davis) is nothing 
 else but the Common Law of the realm, and (so he 
 
38 LA W OF THE CHURCH. 
 
 adds) a custom which hath obtained the force of law, 
 is always said to be jus non scriptum. And as the 
 spiritualty is an essential part of the English Consti- 
 tution, and of a distinct nature and administration 
 from the temporalty, so hath it its Common Customs, 
 and jura non scripta as well as the temporalty. . . . 
 And the like ancient rights, which are not derived 
 from any written laws, but (so far as they are spiritual 
 powers) have the same original with the order itself, 
 and (considered as branches of the Constitution of the. 
 Church of England) subsist upon ancient custom and 
 immemorial practice, and, as subsisting upon these, 
 may be properly called the Common Law of the 
 Church." — {Codex, "Introductory Discourse" xxvi.) 
 
 In the same " Introductory Discourse " he says: " The 
 making of Common Law one branch in the division of 
 the laws of the Church of England is an immediate 
 consequence of the division of the whole body into 
 spiritualty and temporalty, and is no more, in effect, 
 than to say that immemorial practice, relating to tem- 
 poral affairs, shall be in the temporal administration." 
 And again: " The true notion of the Common Law ex- 
 tends to all those customs which have obtained the 
 force of laws, although the method of proceeding be 
 very different in them. And I see no reason why 
 those laws, which stand upon one common bottom, as 
 being received by immemorial custom, should not pass 
 under the same denomination." 
 
 In another place he says: "The rules of Common 
 and Canon Law are founded, not only upon the judg- 
 ment and opinions of the professors of both Laws, but 
 also upon the practice of our own Church and upon the 
 body of the ancient Canon Law." — {Codex, Preface, xiv.) 
 
ENGLISH ECCLESIASTICAL LAW. 39 
 
 Justice Whitlock states in Evers v. Owen {God. Rep., 
 432): " There is a Common Law Ecclesiastical as well 
 as our Common Law, jus commune ecclesiasticum as 
 well as jus commune laicum." 
 
 Bishop Stillingfleet, in his work on "Duties and 
 Rights of Parochial Clergy" (V.l. II., Dis. I.), speaks 
 of the "ancient Common Law in this realm which still 
 continues in force," and then says : " There is a Common 
 Law Ecclesiastical which, although in many things it 
 may be t'he same as the Canon Law which is read in 
 the books, yet it hath not force from any papal or 
 legatine constitutions, but from the acceptance and 
 practice of it in our Church." 
 
 Burn, in his great work on " Ecclesiastical Law," 
 says : " The Ecclesiastical Law of England is com- 
 pounded of these four main ingredients — the Civil Law, 
 the Canon Law, the Common Law, and the Statute 
 Law." He also says : " Where these laws do interfere 
 and cross each other, the order of preference is this : 
 The Civil Law submitteth to the Canon Law; both of 
 these to the Common Law; and all the three to the Stat- 
 ute Law." — (1 Burns "Eccl. Law" xi. See, also, Hale's 
 " Hist. Com. Law," 27, 32 ; " Muscutt on Church Laws" 
 19; Queen v. Millis, 10 Clarke and Finnelly, 678.) 
 
CHAPTER II. 
 
 OF THE ENGLISH ECCLESIASTICAL LAW IN THE COL- 
 ONIES AND IN THE STATES PRIOR TO 1789. 
 
 HAVING clearly established, in my judgment, 
 the truth of the proposition that there is a 
 Common Law Ecclesiastical, and that it is a 
 part of, and included in, the whole great bod}'- of what 
 is known as the " Common Law," we may next con- 
 sider its application to the Colonial Church. But it 
 will first be necessary to recall to our minds some of 
 the propositions hereinbefore set forth and established. 
 We have shown that laws and codes of laws are proper 
 subjects of inheritance and can rightly be claimed by 
 a Church or Nation as its birthright ; that the Com- 
 mon Law of England, together with the Statute Law 
 of the realm, was the birthright of the Colonists ; that 
 they claimed this birthright, and brought it with them 
 to the shores of America, and that it formed the basis 
 of the Colonial Law. We have also shown that the 
 Common Law of the Colonists consisted of the Com- 
 mon Law of England, together with all the Statute 
 Law thereof in amendment of the Common Law, and 
 in force at the time of their emigration, so far as it was 
 applicable to their situation ; and that this Common 
 Law included the Common Ecclesiastical Law of the 
 Church of England. 
 
 But the Common Law of the Colonists included not 
 only the Common Law Ecclesiastical of England, but 
 also the Canonical Law of the Church ; for, as we have 
 
ENGLISH ECCLESIASTICAL LAW. 41 
 
 seen, the Common Law of the Colonists consisted 
 not alone of the lex non scripta, but also of the lex 
 scripta, the Statute Law, the positive enactments of 
 the mother country, and the Canonical Law was a part 
 of that lex scripta, the Statute Law, a part of the gen- 
 eral laws of the mother country, and so a part of the 
 Common Law which the Colonists brought with them 
 to this country. 
 
 The Courts of this country have uniformly taken this 
 view of the Canon Law of England whenever the ques- 
 tion has been before them. In Crump v. Morgan (3 
 Iredell's Eq. Rep., 91, 98), the Court gave as their opin- 
 ion that "the Canon and Civil Laws, as administered 
 in the Ecclesiastical Courts of England, are parts of 
 the Common Law, . . . were brought here by our 
 ancestors as parts of the Common Law, and have been 
 adopted and used here in all cases to which they were 
 applicable, and, whenever there has been a tribunal ex- 
 ercising a jurisdiction, to call for their use." 
 
 The question as to the force of the English Canon 
 Law in this country, so far as it related to testamentary 
 causes, was considered by the Supreme Court of North 
 Carolina, and this opinion given : "Although the juris- 
 diction be changed, the rule of decision is not. The 
 Canon Law is a part of the Common Law, so far as 
 respects testamentary causes, and except such changes 
 as may have been produced by statutes. We now 
 determine here what is a good will of personal prop- 
 erty, exactly upon the same principles that prevailed 
 when the Governor took the probate of wills, or be- 
 fore the Ecclesiastical Judge in England." — {Gaskins v. 
 Gaskins, 3 Iredell's Law Rep., 158; see also Batter son 
 v. Thompson, 8 Phil. Rep., 251; Bart let t et. al. v. Hip- 
 
42 LA W OF THE CHURCH. 
 
 kins, j6 Md., 5 ; Terrett et. al v. Taylor et. al., 9 
 Cranchy 43; De Ruyter v. Trustees et. al., 3 Barb. Ch- 
 Rep., 119; Canal Appraisers v. People et. al., 17 Wend., 
 571 ; Bogardusv. Trinity Church, 4 Paz^ C/2. i?^>., 178.) 
 
 We now come to the consideration of the relation 
 of the Church of England to the Church in the Colo- 
 nies, and also to the consideration of the first of the 
 propositions advanced in the earlier part of the 
 preceding chapter, viz.: that the Ecclesiastical Law 
 of England was the Law of the Church in the Colonies 
 up to the time of their separation from the mother 
 country in 1775- 
 
 The proposition is not that the Church of England 
 was established as a " State Church" in the Colonies (ex- 
 cept where, as was the case in some of the Colonies, it 
 was declared by the Colonial authority to be the estab- 
 lished Church of that particular Province), nor that its 
 worship was enjoined upon the Colonies ; but the pro- 
 position is, as Judge Hoffman so clearly states, "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 in- 
 applicable." 
 
 While the truth of this proposition is so self-evident 
 as to require no proof — probably will be denied by no 
 one — yet, for a clearer understanding thereof with its 
 true meanings and limitations, it will be well to notice 
 various historical facts having reference to and illus- 
 trating the proposition. Judge Hoffman, in his " Law 
 of the Church," and Dr. Hawks, in his " Contributions 
 to Ecclesiastical History," cite a large number of these 
 historical facts, and both are agreed as to the truth of 
 the proposition advocated. 
 
ENGLISH ECCLESIASTICAL LAW. 43 
 
 First, let us observe some of the Colonial legislation 
 that had a more or less direct bearing- upon the Church. 
 
 In 1619 the Colonial Assembly of Virginia passed 
 an Act making the religious establishment of England 
 to prevail in Virginia. In 1621-22, further provisions 
 were made regarding it. In 1624, among other enact- 
 ments relating to the Church adopted by the Virginia 
 Assembly, was the following : " That there should be 
 an uniformity in the Church, as near as might be, to 
 the Canons of the Church of England, and that all per- 
 sons should yield a ready obedience to them, upon 
 pain of censure." — {Hazvks" " Con. to Ecc. Hist." Vol I., 
 
 A 35-) 
 
 In 1642 was passed an Act declaring, " that no min- 
 ister should be permitted to officiate in this country 
 but such as shall produce to the Governor a testimon- 
 ial that he has received his ordination from some 
 Bishop in England, and shall then subscribe to be 
 conformable to the Orders and Constitutions of the 
 Church of England, and the laws there established." — 
 {Ibid, Vol. I., p. 53.) 
 
 In 1662 an Act was passed prohibiting any one from 
 serving as a vestryman of the Church, " without taking 
 the oaths of allegiance and supremacy, and subscribing 
 a declaration of conformity to the doctrine and disci- 
 pline of the Church of England." Attendance upon 
 Divine worship was made compulsory by the same 
 Act. — {Hoffmanns " Law of the Cliurch" p 21.) 
 
 The Colony of New York was governed from 1664 
 to 1683 by a code of laws known as the " Laws of the 
 Duke of York." While it was decreed therein that 
 " all the inhabitants were to bear their due proportion 
 of charges for the support as well of Church as of the 
 
44 LA IV OF THE CHURCH. 
 
 State," it was not made necessary that a minister 
 should be of the Church of England in order to be 
 able to officiate or to be inducted into a parish. 
 
 In 1675 a Court of Assizes was held in New York, 
 and an order made " that the laws of the government 
 be duly observed as to parochial churches, and al- 
 though divers persons may be of different judgments, 
 yet all shall contribute to the minister established and 
 allowed of." — {Hoffman's "Law of 'the Church" p. 18.) 
 
 In 1693, 1695 and 1705, Acts relating to the main- 
 tenance of ministers, etc., were passed by the Colonial 
 Assembly of New York, which were repealed in 1784. 
 
 In South Carolina, Judge Hoffman tells us [p. 19), 
 the charter to the Earl of Clarendon and others gave to 
 them " the advowson of all churches, chapels and 
 oratories, and to cause them to be dedicated accord- 
 ing to the Ecclesiastical Law of England. It con- 
 ferred also the power to dispense with conformity to 
 the Liturgy and ceremonies of the Church and subscrip- 
 tion to the Articles." The ninety-sixth of the funda- 
 mental articles drawn up by Mr. Locke declared 
 " that the religion of the Church of England being 
 the only true and orthodox and the national religion 
 of all the king's domains, was also that of Carolina." 
 
 The ninety-seventh article was in the nature of a 
 Toleration Act, and gave indulgence to Dissenters to 
 form congregations and churches. 
 
 In 1696-97 an Act was passed granting liberty of con- 
 science to all Protestants to enjoy full, free and undis- 
 turbed liberty to exercise their worship according to 
 the professed rules of their religion. — {DalcJws " Hist. 
 ofS. C'p.31.) 
 
 Judge Hoffman cites from Da/cho's "History" {pp. 32, 
 
ENGLISH ECCLESIASTICAL LA W. 45 
 
 33) that " in 1698 an Act was passed for providing a 
 public maintenance of ,£1 50 per annum for a minister in 
 Charleston, payable out of the public treasury. This 
 Act recited the provision of the Charter of Charles II., 
 that no religious ministry, except that established by 
 law in this kingdom of England, should have any pub- 
 lic maintenance." — ( u Laza of 'the CJuirch" p. 20.) 
 
 In 1704 the Assembly passed an Act requiring of all 
 members of the " Commons House of Assembly" con- 
 formity to the worship of the Church of England. 
 
 " In November, 1706, an Act was passed supporting 
 the Establishment, which continued to be the law of 
 the Church in that colony, with some additions and 
 variations, to the time of the Revolution, and portions 
 of which, it is understood, regulate the Church to this 
 day." — ("Law of the Church" p. 20; Vestry et. al. v. 
 Barksdale, I Strob. Eq. Rep., 197.) 
 
 In Maryland, the Colonial Assembly passed an Act 
 in 1696 relating to the Church, but, failing to receive 
 the royal assent, it did not become the law of the 
 Colony. Another Act was drawn up in England and 
 sent to Maryland, which became the law of the Colony 
 in 1702. " By this law, every congregation and place 
 of worship, according to the usage of the Church of 
 England, for the maintenance of whose minister a cer- 
 tain revenue or income was directed by law to be 
 raised, was to be deemed a part of the established 
 Church."— {Hawks' "Eccl. Con." Vol. 11.,/. 113.) "It 
 may be fairly assumed that the Colonial Church was 
 subject to and governed by this law (the English 
 Ecclesiastical Law), so far as it was applicable and was 
 consistent with the chartered rights of Lord Balti- 
 more." — (Bartlett et. al. v. Hipkins, 76 Md., 5.) 
 
46 LA W OF THE CHURCH. 
 
 In studying the history of the Colonial legislation 
 we must remember, as Judge Hoffman states (//. 16, 
 17), that " What laws Churchmen brought with them, 
 or submitted to for the regulation of their spiritual 
 and incidental secular relations, is a wholly different 
 question from that of the prevalence of a law regulat- 
 ing the worship of every Colonist." 
 
 It is plainly evident from the history of Colonial 
 legislation, that Parliament made little or no provision 
 for the support of the Church, and that what provision 
 was made the Colonial Assemblies themselves made, 
 and even when " Bishop Berkeley had won from a re- 
 luctant Parliament the munificent gift of £20,000 to 
 found a college for America," we are told that " Sir 
 Robert Walpole interposed and plundered the fund to 
 swell the nuptial pomp of a princess." 
 
 It was not to King or Parliament, but to " The 
 Society for the Propagation of the Gospel in Foreign 
 Parts," that the Church in America owes a debt of 
 deepest gratitude. That society was incorporated in 
 1701, and, in the language of its charter, was estab- 
 lished " for the receiving and managing such funds as 
 might be contributed for the religious instruction of 
 his Majesty's subjects beyond the seas ; for the main- 
 tenance of clergymen in the plantations, colonies and 
 factories of Great Britain ; and for the general propa- 
 gation of the Gospel." 
 
 Judge Hoffman, in referring to that " beneficent 
 body," well says : " The story of its abundant labors 
 and countless blessings is a proper theme for the 
 eloquent pen of the historian of the Church. Through- 
 out its own works — throughout the late publications 
 in England upon Colonial annals — are poured forth in 
 
ENGLISH ECCLESIASTICAL LAW. 47 
 
 a copious stream the memorials of its holy efforts and 
 their holy fruits; and when from the thousand altars 
 of the Episcopal Church the utterance of praise and 
 prayer arises in the stately, flowing language of Ed- 
 ward, let us remember that chiefly to that society we 
 owe the inappreciable gift." — ("Law of the Church" 
 p. 25.) 
 
 The Colonial Churchmen made repeated efforts to 
 obtain a Bishop for the Colonies, or at least some one 
 invested with some of the authority of a Diocesan. 
 
 As early as 1687 the Churchmen of Maryland pre- 
 sented a memorial to the Bishop of London in which 
 the Governor and the Assembly concurred, " to send 
 some one invested with so much of the authority of 
 the Diocesan as would capacitate to redress what was 
 amiss, and supply what was wanting in the Church." — 
 (Hawks " Con. to Ecc. Hist." Vol. II., p. 81.) 
 
 Commissaries were appointed by the Bishop for 
 some of the Colonies at different times, but their re- 
 quest for a Bishop was not granted. 
 
 " The missionaries of the Church stood upon the 
 shore and beckoned to the descendants of the Apos- 
 tles to come across. They beckoned ineffectually, 
 and the cause of Episcopacy trembled for many years 
 in the struggle with dissent." 
 
 The most that they were able to attain was the ap- 
 pointment of the Bishop of London as their Diocesan, 
 and the union of the Church in the Colonies with the 
 see of London. 
 
 It seems impossible to ascertain by what authority 
 this appointment was first made. We are told by 
 Bishop Wilberforce, that on Bishop Gibson's attain- 
 ment to the see of London, he was informed that the 
 
48 LA W OF THE CHURCH. 
 
 appointment was made by an order of Council in the 
 reign of Charles II., but being unable to find such an 
 order, he refused to act as the Diocesan of the 
 Colonies until a commission was granted him by the 
 Crown. His request was evidently granted some time 
 in the year 1723, as his first act was an address dated 
 in November of that year. 
 
 Hawkins, in his " Historical Notices" {pp. 423, 424), 
 says that in the instructions to the " Society for the 
 Propagation of the Gospel, etc.," they were directed to 
 wait upon the Bishop of London as their Diocesan, and 
 this authority over them is recognized in the instruc- 
 tions to one of the Governors (Lord Cornbury, Govern- 
 or of New York), as early as 1703. 
 
 The jurisdiction of the Bishop of London over the 
 Colonial Church was generally recognized, and seldom 
 ever questioned. One or two instances only, of the 
 recognition of his Colonial jurisdiction need be noted. 
 
 In South Carolina, in 1704, the Assembly had passed 
 an Act that was exceedingly distasteful to Churchmen 
 and Dissenters alike. It provided, among other 
 things, for a tribunal of twenty laymen, for the judg- 
 ing of Ecclesiastical cases. This was deemed, by 
 Churchmen, as an invasion of the authority of the 
 Bishop of London, under whose authority alone such 
 courts could be held. A memorial was sent to the House 
 of Lords, in which it was stated that they were under 
 the jurisdiction of the Bishop of London. The House 
 of Lords voted an address to the Queen, in which they 
 stated that the provision of the law establishing the 
 lay commission was " repugnant to the law of the 
 realm, and destructive of the Constitution of the 
 Church of England." The Queen declared the law 
 
ENGLISH ECCLESIASTICAL LAW. 49 
 
 null and void, and in November, 1706, the Assembly- 
 repealed it. — [Dalchos "History" p. 69.) 
 
 In 1 7 14, the vestry of one of the parishes in the Colony 
 of Maryland preferred charges against their clergy to the 
 Governor. Finding that he had no jurisdiction over the 
 matter, as it was an Ecclesiastical matter, he sent three 
 clergymen to inquire into the facts, " partly to quiet 
 the minds of the complainants, and partly to ascertain 
 facts which might be laid before the Bishop." — {Hawks' 
 " Ecc. Con." Vol. II., //. 140, 141.) 
 
 Judge Hoffman, in commenting on this incident, 
 says : " In this precedent we have the theory of Ec- 
 clesiastical authority and the rule of the Canon Law 
 of England observed so far as it was practicable. By 
 that law the Churchwardens have the right, and are 
 the proper persons, to lay a complaint before the Bishop 
 of the diocese, by whom it is to be investigated and 
 determined. (See Phillimore 's Ed. of 'Burri 's "Ecc. Law" 
 Vol. I .,/>. 399.) The application to or through the 
 Governor was a matter anomalous, but growing out of 
 his legal position. The Governor disclaimed the power 
 of judging a matter merely ecclesiastical, and put the 
 parties in the way of having the facts laid before the 
 Bishop."— (" Law of the Church" p. 28.) 
 
 An attempt was made to secure the passage by the 
 Maryland Assembly of a bill to bring the clergy under 
 the jurisdiction of a lay " Court for the Trial of Clergy- 
 men." The Governor declined to give his assent to 
 the bill, one of his reasons being that " the clergy were 
 properly under the jurisdiction of the Bishop of Lon- 
 don."— {Hawks' "Ecc. Con.," Vol. ll.,pp. 179, 180.) This 
 attempt to destroy the Bishop's jurisdiction over the 
 clergy of the Colony only resulted in strengthening it. 
 
5 o LA W OF THE CHURCH. 
 
 These historical facts which I have adduced are 
 certainly sufficient to prove the identity of the 
 Church in the Colonies with the Church of Eng- 
 land, from the time of their first settlement up to the 
 time of their separation from the mother country in 
 1776, and that she was governed by the same general 
 Ecclesiastical Law, modified somewhat, indeed, by Co- 
 lonial customs and usages. She was under the juris- 
 diction of a Bishop of the Church of England, and rec- 
 ognized and acknowledged that jurisdiction. Her ser- 
 vices were conducted, and her Sacraments adminis- 
 tered, in every place, in the words of the Prayer Book 
 of the Church of England. She called herself, and all 
 men recognized her, as the Church of England in the 
 Colonies. 
 
 The words of Judge Hoffman regarding this propo- 
 sition are so true, and so well chosen, that I quote them 
 at length. He says : " I have gathered together a 
 collection of facts and historical muniments, to show 
 the identity of the Church of the Colonies with that of 
 England — to show how thoroughly she was pervaded 
 with the spirit of the law, as well as of the faith and 
 doctrine of that Church. In following this inquiry, it 
 can scarcely have escaped notice, how much that law 
 was modified and influenced by our Colonial situation, 
 usages, and jurisprudence. The truth is, that a Com- 
 mon Law had sprung up in the Colonies, the offspring 
 of their necessities and position, in the same manner 
 as the Common Law of England had arisen in the 
 Saxon ages. The latter, with wonderful flexibility, 
 had adapted itself to the mutations and the progress 
 of successive centuries. That superadded American 
 Common Law was developed in usages and statutes; 
 
ENGLISH ECCLESIASTICAL LA W. 51 
 
 and its influence was felt in the system of the Church, 
 as well as in the civil relations of the people." — {"Law 
 of the Church" p. 30.) 
 
 The next proposition that I will attempt to estab- 
 lish is, that the Englisli Ecclesiastical Lazv was substan- 
 tially the Lazv of the Church during the Revolutionary 
 War, and thereafter until the year 1789, when the 
 Church, complete in her three orders of the ministry, 
 came into possession of all the constituent elements of 
 an entire Church, and began her separate existence as 
 that branch of the Catholic Church known in law as 
 the " Protestant Episcopal Church in the United States 
 of America." 
 
 The revolution of the Colonies was against the 
 State, not against the Church. 
 
 The Declaration of Independence by the Colonies, 
 on the Fourth of July, 1776, was a Declaration of Inde- 
 pendence of the mother country, not of the mother 
 Church. With her, the Church in the Colonies had no 
 quarrel, and resorted to no revolution against her. 
 " There followed no disruption of her Catholicity ; no 
 severance of spiritual ties; no overthrow of her appli- 
 cable laws" ; no change in the form, or in the manner 
 of the administration of her Sacraments. 
 
 She still continued to use the old and loved Prayer 
 Book of the Church of England. Her sons, the Com- 
 mander-in-Chief, the officers and the soldiers of the 
 American Army fought for independence from Eng- 
 land, but not for independence from the Church of 
 England ; and, whenever it was possible, they at- 
 tended the service of the Church of England, and wor- 
 shipped God in the words of the Church of England 
 Prayer Book. 
 
52 LAW OF THE CHURCH. 
 
 Her identity with the Church of England continued 
 unbroken through the Revolutionary period, and 
 through the post-Revolutionary period up to the year 
 1789. Her priests and her laity still remained loyal 
 to her ; they still named her as the Church of England. 
 
 On the day after the Declaration of Independence, 
 the Convention of Virginia altered the Book of Com- 
 mon Prayer to accommodate it to the change of con- 
 dition in State affairs. Judge Hoffman tells us that 
 this document is preserved in the New York State 
 Library in Albany, and that " it contains various alter- 
 ations 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 re- 
 cited.'" — {"Law of the Church" p. 31.) 
 
 In 1785 (in Virginia), it was ordered "that until the 
 farther order of the Convention, the Liturgy of the 
 Church of England be used in the several Churches 
 throughout this Commonwealth with such altera- 
 tions as the American Revolution has rendered neces- 
 sary." — {Perry's "Journals of the Early Con.,'' Vol. 
 III.,/. 49-) 
 
 In 1783 the first Convention of Maryland issued the 
 celebrated Declaration of Fundamental Rights. It 
 declared that the Church of Maryland possessed the 
 right to '•' complete and preserve herself as an entire 
 Church, agreeably to her ancient usages and posses- 
 sions ; and to have the full enjoyment and free 
 exercise of those purely 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 
 
ENGLISH ECCLESIASTICAL LA W. 53 
 
 also declared that the churches, chapels, glebes and 
 other property formerly belonging to the Church of 
 England belonged to that Church and were secured to 
 it forever. The Declaration closed with the follow- 
 ing passage : "As it is the right, so it will be the 
 duty, of the said Church, when duly organized, con- 
 stituted and represented in a Synod or Convention of 
 the different Orders of her Ministers and People, to 
 revise her Liturgy, Forms of Prayer and Public Wor- 
 ship, in order to adapt the same to the late Revolu- 
 tion, and other local circumstances of America; which, 
 it is humbly conceived, may and will be done without 
 any other and farther departure from the venerable 
 Order and beautiful Forms of Worship of the Church 
 from whence we sprung, than may be found expedient 
 in the change of our situation from a DAUGHTER to a 
 SISTER Church."— {Perry's "Jour. Con." Vol. III., 
 pp. 23, 24.) 
 
 The Constitution of the Church in South Carolina, 
 adopted May 3f, 1786, provided that " the doctrines of 
 the Gospel be maintained as now professed in the 
 Church of England, and uniformity of worship be con- 
 tinued as near as may be to the Liturgy of the said 
 Church." — {Hoffman s " Lazv of the Church" p. 33.) 
 
 In the fundamental articles adopted by Pennsyl- 
 vania in May, 1784, it was declared that " the doc- 
 trines of the Gospel be maintained as now professed 
 by the Church of England ; and uniformity of worship 
 be continued as near as may be to the Liturgy of the 
 said Church." — {Perry s "Jour. Con." VoL III.,/. 38.) 
 
 The thirty-fifth Article of the Constitution of the 
 State of New York, adopted in 1777, after recognizing 
 as the law of the State such parts of the Common Law 
 
54 LA W OF THE CHURCH. 
 
 and of the Statute Law of England, and of the Acts 
 of the Legislature of the Colony of New York, as to- 
 gether formed the law of such Colony, on the 19th of 
 April, 1775, ordained: "That all such parts of the 
 Common Law, and all such of the said Statutes and 
 Acts aforesaid, or parts thereof as may be construed 
 to establish or maintain any particular denomination 
 of Christians or their ministers, or concern the alle- 
 giance heretofore yielded to, and the supremacy, sove- 
 reignty, government, or exercise by the King of Great 
 Britain, and his predecessors, over the Colony of New 
 York, and its inhabitants, or are repugnant to this Con- 
 stitution, be, and they are, hereby abrogated and re- 
 pealed." The thirty-sixth Article had this clause : 
 " Nothing in the Constitution contained should be con- 
 strued to affect any grants of lands within the State, 
 made by the authority of the King, or his predecessors, 
 or to annul any charters to bodies politic, by him or 
 them, or any of them, made prior to the 14th of Octo- 
 ber, 1775." — {Hoffman's " Ecc. Law" pp. 40, 41.) 
 
 It will be observed that these Articles of the Consti- 
 tution of the State of New York in no way affected the 
 Ecclesiastical relation of the Church to the Church of 
 England; their purpose was simply to repeal such por- 
 tions of the then existing law as seemed to give pref- 
 erence to and establish any particular denomination 
 of Christians, and to abrogate such laws as gave sov- 
 ereignty over the Colony of New York to the King of 
 Great Britain. 
 
 On the 6th of April, 1784, an Act was passed {Laws 
 1784, chap, xviii.) relating to religious societies, the 
 ninth section of which was as follows: "Nothing in 
 the Act contained was to be construed to alter or 
 
ENGLISH ECCLESIASTICAL LA W. 55 
 
 change the religious constitutions or governments of 
 either of the said churches, congregations, or societies, 
 so far as res-pacts or in anywise concerns the doctrine, 
 discipline, cr worship thereof." 
 
 A clause in the Act of April 17, 1784 {chap, xxiii.), 
 is important as showing that in New York the Church 
 was at that time known as the Church of England. 
 The sixth section of -the Act refers to certain Acts 
 passed by the Colonial Legislature which " do grant 
 certain emoluments and privileges to the Episcopal 
 Church, or that mode of religious worship commonly 
 called the Church of England, . . . and do also 
 declare or imply a pre-eminence or distinction cf the 
 said Episcopal Church, or Church of England." — ^Hoff- 
 man's " Ecc. Lazu," p. 42.) 
 
 At a Convention of the clergy of Connecticut, held 
 at Wallingford May 28, 1776, the following address to 
 the Bishop of London was adopted: " We, the clergy 
 of the Church of England in Connecticut, in a volun- 
 tary convention, beg leave, with all humility, to recom- 
 mend Mr. Abraham Beach to your lordship as a proper 
 candidate for Holy Orders." 
 
 In June, 1776, we find record of their calling them- 
 selves " the clergy of the Church of England." 
 
 In May, 1781, a Convention was held, and the head- 
 ing of the minutes reads: "At a meeting of the clergy 
 of the Church of England in Connecticut." 
 
 Judge Hoffman states that he had examined various 
 documents connected with the Church in Connecticut, 
 and among them he found a letter from Dr. Jarvis, 
 afterwards Bishop, dated May, 1786, which, he says, 
 expresses the views of the clergy of Connecticut. 
 
 From this letter he quotes as follows: "In the 
 
5 6 LAW OF THE CHURCH. 
 
 planting and growth of the Church in America, I 
 have always understood that the Church of England 
 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 question may be, 
 whether it be not needful) to declare so authorita- 
 tively? I would then submit the following 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 the sense, order, or 
 connection of the whole." — {"Law of the Church" p. 55.) 
 
 The remainder of the quotation relates to the add- 
 ing of a few prayers for special occasions ; that certain 
 rubrics, found necessary to deviate from, be altered, 
 and that the Canons be revised, and such as are appli- 
 cable, or can be made so, be selected. 
 
 Massachusetts, in September, 1784, adopted certain 
 articles, one of which was as follows : " That the Doc- 
 trines of the Gospel be maintained as now professed 
 by the Church of England, and Uniformity of Worship 
 be continued as near as may be to the Liturgy of said 
 Church." — {Perry's "Jour. Con.'' Vol. III., //. 63, 64.) 
 
 It is almost the identical language also used by the 
 Convention of New Jersey, in 1786, in their Memorial 
 to the General Convention. 
 
 These historical citations certainly show that it was 
 not the desire nor the intention of the Church, during 
 the period extending from the Declaration of Inde- 
 pendence, in 1776, to the first complete General Con- 
 
ENGLISH ECCLESIASTICAL LAW. 57 
 
 vention of the Church, in 1789, to depart from the 
 Church of England in " any essential point of doctrine, 
 discipline, or worship." 
 
 On the contrary, they show that it was their desire 
 and intention to adhere thereto " as far as shall be con- 
 sistent with the American Revolution and the Consti- 
 tutions of the respective States." 
 
 This, as we have shown, was substantially the mind 
 of the Church, in a majority of the States at least, and 
 I have been unable to find any evidence that it was 
 not the mind of the Church in every State from 1776 
 to 1789. The only evidence, so far as I have been 
 able to find (and it is no evidence of any fact), that 
 can give color to the existence of a different mind on 
 the part of any portion of the Church is that given by 
 Bishop White in his "Memoirs of the Church" (\st Ed. t 
 p. 64), where he relates that at a meeting of some of 
 the clergy, held in New Brunswick, N. ]., in May, 1784, 
 "Some of the more Northern clergymen were under 
 apprehension of there being a disposition on the part 
 of the Southern members to make material deviations 
 from the ecclesiastical system of England in the arti- 
 cle of Church government." 
 
 During the Revolution and immediately thereafter, 
 the Church in America believed herself to be still 
 connected with the Church of England. She 
 called herself, and was known, in some of the States at 
 least, as " The Church of England." She believed 
 that the only alterations in the Prayer Book which 
 were justifiable were the prayers for the English State, 
 and the English rulers, and that the only departures 
 from that Ecclesiastical Law which they had recog- 
 nized and submitted to for their guidance before the 
 
5 8 LA W OF THE CHURCH. 
 
 Revolution, that could yet lawfully be made, were those 
 cases where the higher rule held good — " Necessity 
 knows no law." 
 
 It will be conceded, I think, as an undeniable proposi- 
 tion, that " laws which are once in force over an organi- 
 zation must remain in force so long as its identity 
 continues, unless they expire by limitation or are re- 
 pealed by the lawmaking power." 
 
 Let us apply this proposition to the proposition in 
 hand, viz. : that the Ecclesiastical Law of England, which 
 was in force in the Colonial Church prior to the Revo- 
 lution, continued of force in the Church during the 
 Revolution, and thereafter until the meeting of the 
 General Convention of the Church in 1789. The Re- 
 volution and the Declaration of Independence made 
 no change in the identity of the Church. She contin- 
 ued to be the same identical Church, during and after 
 the Revolution, that she was before the Revolution. 
 She professed the same doctrines; she used the same 
 Liturgy; she administered the same Sacraments and in 
 the same unfailing words; her clergy subscribed to the 
 same Articles, only, she was no longer under the tem- 
 poral sovereignty of England. 
 
 That the Church in America, after the 4th of July 
 1776, was, in every essential feature, the same identical 
 Church that she was prior to that date, and that she 
 so continued to be until 1789, cannot, and I think will 
 not, be doubted by any one. 
 
 Many of the authorities, and the opinions of the 
 Courts, hereinafter cited, prove most conclusively this 
 fact of the Church's continued identity, in every essen- 
 tial feature, during the Revolutionary and post-Revo- 
 lutionary periods. 
 
ENGLISH ECCLESIASTICAL LA W. 59 
 
 No one can read the records of the various Conventions 
 of the clergy held in the different States prior to the 
 General Convention of 1789, and the historical docu- 
 ments connected therewith, without being impressed 
 with the universal desire of the clergy of the Church 
 and the great care by them taken to preserve in every 
 essential feature the identity of the Church. 
 
 It is not necessary, at this point, to consider these 
 documents at length, as citations from them will be 
 made when we come to consider the action taken by 
 the Churches in the different States, looking to a union 
 thereof, prior to the General Convention of 1789. A 
 few citations will be sufficient to evidence what was 
 the mind and intent of the Church. 
 
 At a meeting of the clergy of Connecticut, held in 
 New York City, April 21, 1783, an address to the 
 Archbishop of York was adopted, praying for the con- 
 secration of the Rev. Dr. Samuel Seabury as Bishop 
 of Connecticut. In this address we find the following: 
 *' Notwithstanding the dissolution of our civil connec- 
 tion 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 established in the Church of England. To render 
 that polity complete, and to provide for its perpetuity 
 in this country by the establishment of an American 
 Episcopate, has long been an object of anxious concern 
 to us, and to many of our brethren in other parts of 
 this continent." And in the " Testimonial " signed by 
 them, to be forwarded with the address, they ask for 
 the consecration of Dr. Seabury, that " he may return 
 to Connecticut, and there exercise the spiritual pow- 
 ers and discharge the duties which are peculiar to the 
 
60 L-iW OF THE CHURCH. 
 
 Episcopal character among the members of the Church 
 of England." They also state that "it will be the 
 means of preserving the Church of England in Amer- 
 ica from ruin. — ( White's " Memoirs" 1st Ed., pp. 325 
 
 328) 
 
 After his consecration, August 15, 1785, Bishop Sea- 
 bury wrote to the Rev. Dr. Smith, of Maryland, re- 
 garding the question of titles to property in that State, 
 which the Church was seeking to retain, in which he 
 says: "I can see no good ground of apprehension con- 
 cerning the titles of estates, or emoluments belonging 
 to the Church in your State; your Church is still the 
 Church of England, subsisting under a different civil 
 government." — {Whites " Memoirs" \st Ed., pp. 339, 
 
 340) 
 
 In the " Memorial from the Convention in New Jer- 
 sey " to the General Convention, dated May 19, 1786 
 (to which reference has already been made), a request 
 is preferred, that the General Convention will " remove 
 every cause that may have excited any jealousy or 
 fear, that the Episcopal Church in the United States 
 of America have any intention 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 doctrines 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 consistent with the American 
 Revolution, and the Constitution of the respective 
 States." — {Whites "Memoirs" 1st Ed., pp. 359, 360.) 
 
 The opinion of Bishop White is important on this 
 point. Referring to " the pretence made by some 
 that the Episcopal Church in the United States began 
 
ENGLISH ECCLESIASTICA L LA W. 6 1 
 
 with its obtaining of the Episcopacy," he says : "A 
 new name does not characterize the Church as new, 
 but may arise from civil changes in various ways to be 
 conceived of. What was formerly ' the Church of Eng- 
 land in America ' did not cease to exist on the removal 
 of the Episcopacy of the Bishop of London, by the 
 providence of God ; but assumed a new name, as the 
 dictate of propriety." — (" Memoirs" 1st Ed., p. 97.) 
 
 We have already proven that the English Ecclesias- 
 tical Law was of force in the Colonial Church, so far 
 as it was applicable to their circumstances, up to the 
 time of the Revolution. No one, I presume, will claim 
 that this Law could or did "expire by limitation"; 
 and as there was no " law-making power " for the 
 Church until 1789, it could not have been " repealed " 
 by any " law-making power." 
 
 It is clear, then, that the English Ecclesiastical Law, 
 which was in force in the Colonial Church, did not 
 "expire by limitation," nor was it repealed by any 
 "law-making power," and must, therefore, have "re- 
 mained in force" in the Church during, and after, the 
 Revolution, if the identity of the Church remained. 
 But we have seen that the " identity " of the Church 
 did remain ; therefore, so much of the English Eccles- 
 iastical Law as was in force in the Colonial Church 
 before the Revolution, of very necessity also " remained 
 in force " after the Revolution. 
 
 The truth of this proposition was most strongly as- 
 serted by Hugh Davey Evans, who, as it has well been 
 said, was " one of the most distinguished lawyers of 
 his day," and "one of the most profound Canonists 
 that ornamented the history of the American Church." 
 He says : "It is not easy to understand that a merely 
 
62 LA W OF THE CHURCH. 
 
 political revolution could have changed the Ecclesias- 
 tical Law. So far as the supposed Ecclesiastical Law 
 was connected with the relations of the Church to 
 the British Crown, or State, it was of course abro- 
 gated by the American Revolution. But there is no 
 reason why the ordinary Ecclesiastical Laws should 
 have been changed by a political revolution, more 
 than the laws which regulate civil rights or civil con- 
 tracts. 
 
 "A revolution which puts an end to one government, 
 and substitutes another, dissolves all political laws, 
 and may dissolve all politico-ecclesiastical laws ; but it 
 leaves untouched the ordinary laws of civil society. 
 This is more especially clear, when, as in the case be- 
 fore us, the new civil government refuses all connec- 
 tion with Ecclesiastical affairs. Neither could the mere 
 dissolution, by mutual consent, of the relations be- 
 tween the Bishop of London and the American 
 Churchmen, change the Law under which the latter 
 lived. They must have remained under the authority 
 of the purely Ecclesiastical Laws of the Church of 
 England, of which they had been part, until they were 
 changed by competent authority. But, although they 
 had laws, they were without any efficient means of 
 enforcing them." — [Theophilus Ainericanus, pp. 316, 
 
 317) 
 
 To the same effect is the decision of the Supreme 
 
 Court of the United States in Terrett ct. al. v. Taylor 
 ct. al. (9 Crunch, 43). This was a case involving the 
 question of title to certain glebe lands which had been 
 given to the Church of England in the Colony of Vir- 
 ginia. Justice Story, in delivering the opinion of the 
 Court, which held that the lands in question now be- 
 
ENGLISH ECCLESIASTICAL LA IV. 63 
 
 longed to the Episcopal Church, says : " The dissolu- 
 tion of the regal government no more destroyed the 
 right to possess or enjoy the property, than it did the 
 right of any other corporation or individual to his or 
 its own property. The dissolution of the form of gov- 
 ernment did not involve in it a dissolution of civil 
 rights, or an abolition of the Common Law, under 
 which the inheritances of every man in the State were 
 held. . . . The Revolution might justly take awaj' 
 the public patronage, the exclusive care of souls and 
 the compulsive taxation for the support of the Church. 
 Beyond these we are not prepared to admit the justice 
 or the authority of the exercise of legislation." This 
 opinion was quoted and approved by the same Court 
 in Society et. al. v. New Haven et. al. (8 Wheaton \U. 
 
 In Bruwn v. Langdon {Smith [N. H.], Rep., 178), it is 
 stated that " change of name would not divest the 
 property. (1 Chr. Notes, 650.) Though the name of 
 the corporation be changed (as in the case of a new 
 charter), yet it still retains its former rights and privi- 
 leges." 
 
CHAPTER III. 
 
 OF THE ENGLISH ECCLESIASTICAL LAW IN THE 
 STATES SUBSEQUENT TO 1789. 
 
 WE NOW come to the period of the Church's 
 transition from the " Church of England 
 in the Colonies " to the " Protestant Epis- 
 copal Church in the United States of America," 
 and we shall see, as Judge Hoffman well says, 
 that " no violent disruption of the sacred bond 
 took place. The daughter glided from the mother's 
 side because in the allotment of Providence she had 
 been led to maturity and independence ; but the 
 spiritual union, the union of faith, of worship, and of 
 discipline was undestroyed ; and God grant that it may 
 prove indestructible." — {"Law of the Church" pp. 
 30, 31.) 
 
 Before proceeding to the consideration of the third 
 and final proposition, hereinbefore adduced, it may be 
 well for us, in order to a more complete understand- 
 ing of the action taken by the General Convention in 
 1789, to review briefly the separate action taken by the 
 Churches in the different States, immediately prior to 
 that Convention, looking toward the union of the 
 separate Churches, and the formation of a National 
 Church, and discover, if we can, the principle, if any, 
 which underlaid and controlled their separate action. 
 
 When the peace of 1783 brought to an end the 
 sovereignty of England over the Colonies " it found 
 the Episcopal Church," as one has said, "pros- 
 
ENGLISH ECCLESIASTICAL LAW. 65 
 
 trated and overwhelmed — the object of political 
 jealousy and hatred — the object of bitter invective and 
 persecution of sects, profiting- by her downfall and 
 exulting in her ruin. It found her drooping in sorrow 
 and in fear amid the broken pillars of her temples and 
 the disjointed stones of her altars." 
 
 But in this, her direst hour of need, the Church was 
 not wanting in true and faithful sons, who brought to 
 the great work of the rehabilitation and restoration of 
 the Church " a zeal, energy and judgment worthy of 
 the object and adequate to the task." 
 
 Bishop Perry tells us that "a single sheet of fools- 
 cap, faded and yellow with age, contains the records of 
 the preliminary gathering of the clergy and laity out of 
 which grew the independent organization of the Amer- 
 ican Church." {"■Handbook Gen. Con." 1785-1S77, 
 p. 1.) It was appended to the records of a meeting for 
 another purpose, held in New Brunswick, N. J., May 
 11, 17S4, at which were present clergy and laity 
 from the States of New York, New Jersey and Penn- 
 sylvania. It states that it was agreed that a com- 
 mittee named be requested to wait upon the clergy of 
 Connecticut, soon to be convened, " for the purpose of 
 soliciting their concurrence with us in such measures 
 as may be deemed conducive to the union and pros- 
 perity of the Episcopal Churches in the States of 
 America. Also agreed by the gentlemen present, 
 that the undermentioned persons be requested to cor- 
 respond with each other, and with any other persons, 
 for the purpose of forming a Continental Representa- 
 tion of the Episcopal Church, and for the better 
 management of other concerns of the said Church."— 
 {Perry's " Handbook Gen. Con." p. 2.) 
 
6£ LA W OF THE CHURCH. 
 
 Several of the Conventions of the Church in the differ- 
 ent States had previously adopted certain resolutions or 
 fundamental principles in reference to a possible union 
 of the Churches. These principles formed the basis 
 and were in the main analogous to the principles 
 agreed upon afterward in the Conventions formed of 
 delegates representing the Church from the different 
 States, and are worthy of notice on that account. 
 
 A meeting of the clergy of Connecticut was held in 
 March, 1783. Its principal action was the recom- 
 mending of Dr. Samuel Seabury to the Archbishop of 
 York and the English Bishops for consecration as 
 Bishop of Connecticut. 
 
 In Maryland a Convention of the clergy of the 
 Church in that State was held on August 13, 1783, 
 which set forth " A declaration of certain fundamental 
 rights and liberties of the Protestant Episcopal Church 
 of Maryland," consisting of four articles. 
 
 The first article 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 Revolution, to com- 
 plete and preserve herself as an entire Church, agree- 
 ably 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 
 jurisdiction, so far as may be consistent with the civil 
 rights of society " 
 
 The second article has reference to the maintaining 
 of the three orders of the ministry, which " hath been 
 
ENGLISH ECCLESIASTICAL LA W. 67 
 
 the received doctrine of the Church of which we are 
 members." 
 
 The third article declares the right of the Church to 
 enjoy the continuance of these three orders of the 
 ministry, and that only ministers of Episcopal ordina- 
 tion ought to have the enjoyment of the property 
 " formerly belonging to the Church of England in this 
 State; and which, by the constitution and form of 
 government, is secured to the said Church forever; by 
 whatsoever name she, the said Church, or her superior 
 order of ministers, may in future be denominated." 
 
 The fourth article declares the right of the Church, 
 when duly organized, etc., " to revise her liturgy, 
 forms of prayer, and public worship, in order to adapt 
 the same to the late Revolution, and other local cir- 
 cumstances of America." — {White's "Memoirs" \st Ed., 
 pp. 86, 87.) 
 
 Another Convention was held in June, 1784, which 
 approved the aforesaid declaration and set forth " cer- 
 tain fundamental principles of Ecclesiastical govern- 
 ment." Among other things, they forbid any of the 
 orders of the clergy having a view of settling in Mary- 
 land from taking or subscribing any civil or canonical 
 obligation of obedience to any foreign power or 
 authority. They also declare that " the duty and 
 office of a Bishop differs in nothing from that of other 
 priests, except in the power of ordination and con- 
 firmation; and in the right of precedency in Ecclesiasti- 
 cal meetings or Synods." 
 
 The composition of Ecclesiastical Conventions or 
 Synods was also provided for, and was to consist of a 
 representation of the laity as well as of the clergy. 
 
 Strange as some of these principles may seem to us, 
 
68 LA W OF THE CHURCH. 
 
 we must remember that they were a concession to cir- 
 cumstances, that was at that time unavoidable in the 
 State of Maryland. The Church had bitter opponents 
 on every side, who were vigorously seeking her com- 
 plete destruction and hoping to materially profit by her 
 downfall. There was also a most bitter feeling against 
 Bishops, which will account for the remarkable defini- 
 tion of the Episcopal order set forth by the Convention 
 of 1784. 
 
 Dr. Hawks says: "The clergy very wisely ac- 
 quiesced [in this definition of Bishops by the laity], and 
 indeed, had they not done so, the Church, now left 
 almost entirely dependent on the good will of the 
 laity, would not have been organized at all." — (" Cont. 
 to Eccl. His.," Vol. 11.,/. 298.) 
 
 Bishop White tells us that this definition of the au- 
 thority of a Bishop " gave great offence to some of the 
 clergy." — (" Memoirs" 1st Ed., p. 90.) 
 
 In Pennsylvania, a Convention of the Church, com- 
 posed of clergy and lay members, was held in Phila- 
 delphia in May, 1784, and certain principles were set 
 forth " as a foundation for the future forming of an 
 Ecclesiastical body for the Church at large." They 
 declared the independence of the Church; that it 
 ought to have exclusive power to govern itself; adher- 
 ence to the Liturgy of the Church of England; the 
 three orders of the ministry ; a representative body of 
 clergy and laity the only power to make Canons ; and 
 only certain powers to be delegated to a General Eccles- 
 iastical Government. — {Whites "Memoirs," \st Ed., p. 
 
 ;3-) 
 
 Bishop White tells us {Idem, p. yf), that it was 
 deemed expedient to admit the laity to a representa- 
 
ENGLISH ECCLESIA STICAL LA W. 69 
 
 tion in Conventions, " from its being a natural conse- 
 quence of the principle of following the Church of 
 England in all leading points of her doctrine, discipline, 
 and worship. We could not, in any other way, 
 have had a substitute for the parliamentary sanction to 
 legislative acts of power." 
 
 In Massachusetts, a meeting of the clergy was held 
 at Boston in September, 1784, which adopted certain 
 resolves which were almost identical with those 
 adopted in Philadelphia in the preceding May. 
 
 At the meeting held in New Brunswick, N. J., in 
 May, 1784, it had been agreed by the clergy present 
 to procure as general a meeting of representatives of 
 the clergy and laity of the different States as might be 
 possible, in the City of New York, on the 6th of October 
 following. At this meeting in New York City, October 
 6, 1784, there were present clergy from Massachusetts, 
 Connecticut, Maryland, and Virginia; and clergy and 
 laity from New York, New Jersey, Pennsylvania and 
 Delaware. — {While s ''Memoirs" 1st Ed., pp. 64, 65 ) 
 
 It was only a voluntary Convention, and could, there- 
 fore, only recommend to the clergy and congregations 
 of the Church, in the States represented, and propose 
 to those in States not represented, that they take steps 
 " to unite in a general Ecclesiastical constitution on 
 the following fundamental principles." 
 
 " I. That there shall be a General Convention of the 
 Episcopal Church in the United States of America. 
 
 "II. That the Episcopal Church in each State send 
 deputies to the Convention, consisting of clergy and 
 laity. 
 
 "III. That associated congregations in two or more 
 States may send deputies jointly. 
 
7 o LA W OF THE CHURCH. 
 
 " IV. That the said Church shall maintain the doc- 
 trines of the Gospel as now held by the Church of 
 England ; and shall adhere to the Liturgy of the said 
 Church as far as shall be consistent with the American 
 Revolution, and the constitutions of the respective 
 States. 
 
 ' ' V. That in every State where there shall be a Bishop 
 duly consecrated and settled, he shall be considered as 
 a member of the Convention ex-officio. 
 
 " VI. That the clergy and laity assembled in Conven- 
 tion shall deliberate in one body, but shall vote sepa- 
 rately: and the concurrence of both shall be neces- 
 sary to give validity to every measure. 
 
 "VII. 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 respective 
 States will send their clerical and lay deputies, duly 
 instructed and authorized to proceed on the necessary 
 business herein proposed for their deliberation." — 
 {Whites "Memoirs" at Ed., pp. 65, 66.) 
 
 In remarking on this call for the first Convention of 
 the whole Church, Bishop White says: "It seemed 
 a great matter gained, to lay what promised to be a 
 foundation for the continuing of the Episcopal Church 
 in the leading points of her doctrine, discipline and 
 worship, yet with such an accommodation to local 
 circumstances as might be expected to secure the con- 
 currence of the great body of her members, and 
 without any exterior opposition, to threaten the over- 
 setting of the scheme." — {Idem, p. 6j.) 
 
 On September 27 , 1 '85, delegates from seven States, 
 including South Carolina, not represented at the New 
 
ENGLISH ECCLESIASTICAL LA IV. 7 i 
 
 York Convention in 1784, met, pursuant to the call, at 
 Philadelphia. The " fundamental principles" set forth 
 by the former Convention, as noted above, with the ex- 
 ception of the fourth, were formally approved, and be- 
 came a bond of union which held the several Churches 
 together until the Convention of 1789. In the place of 
 the fourth article relating to the Liturgy, a resolution 
 was adopted for the appointment of a committee to 
 report such alterations as they should deem necessary 
 to " render it consistent with the American Revolution 
 and the Constitutions of the respective States." — (Per- 
 ry's " Handbj k Gen. Con.'' p. 8.) 
 
 The Convention "applied themselves to the making 
 of such alterations in the Book of Common Prayer as 
 were necessary for the accommodating of it to the late 
 changes in the State, and the proposing, but not es- 
 tablishing, of such other alterations in that book and 
 in the articles as they thought an improvement of the 
 service and of the manner of stating the principal arti- 
 cles of faith. These were published in a book ever 
 since known by the name of the Proposed Book." — 
 (White's " Memoirs'' \st. Ed., p. 12.) 
 
 It is not necessary for the purpose of this work to 
 consider at any length the changes made in the Pro- 
 posed Book. The book was published; but it was im- 
 mediately evident, as Bishop White says, "that in re- 
 gard to the Liturgy the labors of the Convention had 
 not reached their object." It was condemned at the 
 outset, and failed completely to establish itself as the 
 Prayer Book of the Church. " The question of its 
 adoption was not even considered by the following 
 General Conventions." — (Perry's '''Handbook Gen. 
 Con." p. 42.) 
 
72 LA IV OF THE CHURCH. 
 
 Its only use seems to have been to form the basis of 
 a Prayer Book for a schism from the Church nearly 
 ninety years later. 
 
 In order that other Conventions might be held, an 
 Ecclesiastical Constitution was proposed, and ordered 
 transcribed, but no other action in the matter was 
 taken at this Convention. 
 
 The outlines of this proposed Constitution were, in 
 brief, as follows : There should be a triennial Conven- 
 tion ; voting should be by States, each order having a 
 negative upon the other; a Bishop to be ex-officio a 
 member of the Convention ; the clergy to be account- 
 able only to the Ecclesiastical authority in the State 
 where they belonged ; requirement of a declaration of 
 belief in the Holy Scriptures and a promise of con- 
 formity to the doctrines and worship of the Churci:. 
 It also provided for the continued use of the Church 
 of England Prayer Book, with the alterations already 
 made, until such a time as the "Proposed Book" 
 might be ratified by the Conventions of the States rep- 
 resented in the Convention. — {White s " Memoirs" \st 
 Ed., p. 14. Perry's" Jour. Con." Vol. I., p. 22.) 
 
 Another important action of the Convention — the 
 most fruitful one, as well as the most far-reaching in 
 its consequences to the Church — was the passage of a 
 resolution, the first section of which is as follows : 
 "Resolved : 1. That this Convention address the Arch- 
 bishops and Bishops of the Church of England, re- 
 questing them to confer the Episcopal character on 
 such persons as shall be chosen and recommended to 
 them for that purpose from the Conventions of this 
 Church in the respective States." The second section 
 '• recommended to the said Conventions, that they 
 
ENGLISH ECCLESIASTICAL LA W. 73 
 
 elect persons for this purpose." — {Perry s "■Jour. Con.," 
 Vol. I., p. 25) 
 
 The address ordered was submitted to the Conven- 
 tion, signed by the members thereof, and forwarded 
 to John Adams, the American Minister to England, 
 with the request that he present it to the Archbishop 
 of Canterbury. As this address will be considered 
 hereafter, consideration of it, for the present, is unnec- 
 essary. After empowering a Committee to call another 
 General Convention when they deemed necessary, the 
 Convention of 17S5 adjourned. 
 
 The second General Convention met in Philadel- 
 phia June 20, 1786. The Constitution proposed in the 
 former Convention was taken up and several important 
 amendments were made, in order to make it more con- 
 formable to the desires of the Archbishops and Bishops 
 of the Church of England, as expressed by them in a 
 letter written to the committee in reply to the address 
 made to them by the Convention of 1785. The Con- 
 vention also ordered a second address to the Arch- 
 bishops and Bishops of the Church of England to 
 assure them that they did " not intend to depart 
 from the doctrine, worship, and discipline of the 
 Church of England," further than was made neces- 
 sary by local circumstances. This was signed by 
 the members of the Convention, and forwarded to 
 England. 
 
 The next General Convention, and the last prior to 
 the Convention of 1789, met in Wilmington, Del., on 
 the 10th of October, 1786. 
 
 The principal business was the consideration of the 
 letters of the Archbishop and Bishops of the Church 
 of England, and " of how far they should accommodate 
 
74 LA }V OF THE CHURCH. 
 
 to the requisitions of the English Prelates." — {White's 
 "Memoirs" \stEd.,p. iS.) 
 
 The Convention finally resolved to restore the Ni- 
 cene Creed to its place after the Apostles' Creed in 
 the Prayer Book ; also the words, " He descended into 
 hell," in the Apostles' Creed. 
 
 An address to the Archbishops of Canterbury and 
 York was ordered and signed by the President in be- 
 half of the Convention. 
 
 At this Convention the testimonials of the Rev. Dr. 
 White, as Bishop-elect of Pennsylvania ; the Rev. Dr. 
 Provoost, as Bishop-elect of New York, and the Rev. 
 Dr. Griffith, as Bishop-elect of Virginia, were signed 
 by the members of the Convention. The Rev. Drs. 
 White and Provoost sailed for England on the 2d of 
 November, 1786, and on Sunday, the 4th of February, 
 1787, in the chapel of Lambeth Palace, they were con- 
 secrated Bishops by the Archbishop of Canterbury; 
 the Archbishop of York presenting them, and the Bishop 
 of Bath and Wells, and the Bishop of Peterborough, 
 joining with the two Archbishops in the laying-on of 
 hands.— ( WAtes " Memoirs" \st Ed., p. 158.) 
 
 On the following day, the Bishops of New York and 
 Pennsylvania left London on their homeward journey, 
 and arrived in New York on Easter Sunday, April 7th. 
 The long continued "struggle for the Episcopate " in 
 the English line was now happily ended, and the 
 American Church was complete with its three orders 
 of the ministry. New York and Pennsylvania each had 
 her Bishop in the English line, and Connecticut her 
 Bishop in the Scottish line, in the person of Bishop 
 Seabury, v/ho had been consecrated by the Non-juring 
 Bishops of Scotland on the 14th of November, 1784. 
 
ENGLISH ECCLESIASTICAL LAW. 75 
 
 This history of the action taken by the Churches in 
 the different States, for a union thereof, and the form- 
 ing of a national organization, is important; first, as 
 indicating what was the mind of the Church in the 
 different States, during this formative period, regard- 
 ing the relation they bore to the Church of England, 
 and what changes in doctrine, discipline, and worship 
 each deemed necessary; second, in helping us to under- 
 stand more clearly the final action taken, when, as an 
 entire Church, with authority to act, she was assem- 
 bled in a complete General Convention. 
 
 With this introduction we can proceed to consider 
 the doings of the General Conventions of 1789 and 
 1792. 
 
 The Convention of 1789 met in Philadelphia, July 
 28th, and continued until August 8th. Bishop White, 
 of Pennsylvania, clerical and lay deputies from the 
 States of New York, New Jersey, Pennsylvania, Dela- 
 ware, Maryland, South Carolina, and a lay delegate 
 from Virginia, were present and composed the Con- 
 vention. — {Perry s "Journals of Con. ," Vol. I., pp. 65, 
 66.) 
 
 It must be borne in mind that this was not a Gener- 
 al Convention in the true sense of the word, as it was 
 composed of only one House, the House of Clerical 
 and Lay Deputies, with Bishop White as President 
 thereof, but provision was made at this Convention for 
 a General Convention. The deputies were first called 
 upon " to declare their powers relative to the object of 
 the resolution " adopted by the June Convention of 
 1786, recommending the Conventions of the Church in 
 the several States to give power to their deputies to 
 the next General Convention, "to confirm r.rd ratify 
 
7 6 LA W C>F THE CHURCH. 
 
 a General Constitution, respecting both the doctrine 
 and discipline cf the Protestant Episcopal Church in 
 the United States."— {Perry s^ Jour, vf Con.'' Vo.. I., 
 pp. 42, 69.) 
 
 The deputies stated that they were fully authorized 
 to ratify a Book of Common Prayer, etc., for the use 
 of the Church. {ldc?n> p. 69 ) The Convention 
 adopted a set of resolutions relating to the perpetuat- 
 ing of the succession of the Episcopal Order, and the 
 requesting of the Churches in New England to meet 
 with the Churches of the States then represented in Con- 
 vention, and the three Bishops, in an adjourned Con- 
 vention. 
 
 The principal business of the Convention, aside from 
 that above noted, consisted in the adoption of a body 
 of Canons, and the reviewing and remodelling of the 
 Constitution formed in 1786. The principal feature 
 now given to the Constitution was a division of the 
 Convention into two Houses, one consisting of the 
 Bishops, and the other cf Clerical and Lay Deputies, 
 who should vote by States and by orders, when so re- 
 quired. As the Constitution and the Canons were further 
 amended at an adjourned Convention, further consider- 
 ation of them at this point is not necessary. 
 
 The Convention adjourned to meet at the same place 
 on the 29th of September following. 
 
 On the clay appointed the Convention re-assembled. 
 A clerical deputy from Virginia appeared and took his 
 seat, thus completing the delegation from that State. 
 
 Bishop Seabury, of Connecticut, with some of the 
 clergy of New England, were present to confer with 
 the Convention, agreeable to the invitation sent them 
 by the Convention at its first session. 
 
ENGLISH ECCLESIASTICAL LA IV. 77 
 
 The Convention then appointed a committee to con- 
 fer with the clergy from New England on the subject 
 of the proposed union. 
 
 The committee, after such conference held, reported 
 to the Convention that the clergy from New England 
 had authority to approve the Constitution, as set forth 
 at the first session of the Convention, and that they 
 were willing to assent to it, provided the third article 
 thereof was " so modified as to declare explicitly the 
 right of the Bishops, when sitting in a separate House, 
 to originate and propose Acts for the concurrence of 
 the other House of Convention and to negative such 
 Acts proposed by the other House as they may dis- 
 approve." — {Perry s "Jour, of Con." Vol. !.,/>. g$.) 
 
 The committee recommended that the said third 
 article be amended, as desired by the New England 
 clergy. The Convention then proceeded to so amend 
 the article in question, with this exception, that in- 
 stead of an absolute veto being given to the House of 
 Bishops over the legislation of the other House, pro- 
 vision was made that such veto might be negatived by 
 a four-fifths vote of the House of Clerical and Lay 
 Deputies. 
 
 Bishop Seabury and the clerical deputies from New 
 England reluctantly consented to this amendment, 
 and signified in writing their assent to the Constitution 
 of the Church as modified. 
 
 Bishop Seabury and the clerical deputies from the 
 Church in Connecticut and the Church in Massachu- 
 setts and New Hampshire then took their seats in the 
 Convention. 
 
 It may be well at this point to give a summary of the 
 articles of the Constitution as set forth by the Conven- 
 
;8 LAW OF THE CHURCH. 
 
 tion on the 8th of August, and amended the 2d of 
 October, 1789. 
 
 The first article provided for a General Convention 
 of the Church triennially. 
 
 The second article provided for the representation 
 therein of the Church in each State, clergy and laity to 
 be represented by one or more, not exceeding four, of 
 each order, the concurrence of each order, voting by 
 States, and by orders when required, being necessary to 
 constitute a vote of the Convention ; provision was 
 also made that a State, though unrepresented at any 
 Convention, should be bound by the action of that 
 Convention. 
 
 The third article provided for a separate House of 
 Bishops whenever there shall be three or more Bishops, 
 and gave a right to that House to originate and pro- 
 pose measures for the concurrence of the lower House, 
 and a negative upon the action of the House of Clerical 
 and Lay Deputies, unless adhered to by four-fifths of 
 that House ; the House of Bishops to signify to the 
 Convention their approbation or disapproval of any 
 measure, in writing, within three days after reception 
 thereof, failing which, such measure should have the 
 operation of a law. 
 
 The fourth article provided for the choice of a Bishop 
 in every State by the Convention of that State, and that 
 the jurisdiction of a Bishop be confined to his own 
 State, unless requested to perform some Episcopal act 
 by the Church in another State. 
 
 The fifth article provided for the future admission of 
 the Church in any State not then represented. 
 
 The sixth article provided that the Convention of 
 every State should institute the mode of trying clergy- 
 
ENGLISH ECCLESIASTICAL LA W. 79 
 
 men therein, and that one of the Episcopal Order should 
 be present at every trial of a Bishop, and that none but 
 a Bishop should pronounce sentence of deposition or 
 degradation from the ministry on any clergyman. 
 
 The seventh article provided for the examination of 
 candidates for Holy Orders, and the declaration of 
 belief and of conformity to the Church before admis- 
 sion thereto. It also provided that no one ordained 
 by any foreign Bishop should be allowed to officiate as 
 a minister of the Church before subscribing to the 
 aforesaid declaration, and complying with the Canons 
 for such case made and provided. 
 
 The eighth article provided that every Church in the 
 States which should have adopted the Constitution, 
 " shall use a Book of Common Prayer and the Offices, 
 when the same shall be set forth by this or any future 
 General Convention." 
 
 The ninth article provided that the Constitution was 
 to be unalterable, " unless in General Convention by a 
 majority of the States which may have adopted the 
 same." It also provided how these alterations should 
 be proposed, made known, and finally ratified. — 
 {Perry s "Jour, of Con." Vol. I., pp. 99, 100.) 
 
 The third article of the Constitution provided for the 
 division of the Convention into two Houses as soon as 
 three Bishops should belong to that body. This num- 
 ber was completed by the assent of Bishop Seabury to 
 the Constitution, and his becoming a member of the 
 Convention. 
 
 On October 3, 1789, Bishops White and Seabury 
 withdrew from the House of Clerical and Lay Depu- 
 ties and formed a House of Bishops, and the first com- 
 plete General Convention began its labors. 
 
8o LA W OF THE CHURCH. 
 
 The two Houses entered upon a review of the 
 Liturgy of the Church and of the Canons passed at 
 the previous session. 
 
 Only a brief review of the Canons finally adopted is 
 necessary for our present purpose. 
 
 Canon I. declared that there should always be the 
 three Orders of the Ministry in the Church. 
 
 Canon II. described the form of certificate to be pro- 
 duced on the part of the Bishop-elect, and of the testi- 
 mony from the General Convention. 
 
 Canon III. relates to Episcopal visitations. 
 
 Canons IV. to VIII. inclusive relate to the age of 
 those to be ordained or consecrated, titles of those in 
 Orders, testimonials and learning of those who are to 
 be ordained, and the stated times of ordination. 
 
 Canon IX., to those ordained by foreign Bishops. 
 
 Canon X., to the use of the Book of Common Prayer. 
 
 Canon XL, to the duty of ministers in regard to 
 Episcopal visitation. 
 
 Canon XII. directs the censuring of notorious crimes 
 and scandals. 
 
 Canon XIII. requires sober conversation in ministers. 
 
 Canon XIV. reiates to the due celebration of Sun- 
 days. 
 
 Canon XV. directs ministers to keep a register. 
 
 Canon XVI. provides that a list of the ministers of 
 the Church shall be made and published. 
 
 Canon XVII. requires that notice shall be given to 
 the Bishop or Standing Committee of the induction 
 and dismission of ministers. 
 
 Our more important concern is with the revision of 
 the Book of Common Prayer as made by this Conven- 
 tion and the following Convention of 1792. 
 
ENGLISH ECCLESIASTICAL LA W. 8t 
 
 "The Convention appointed five committees to pro- 
 vide a Prayer Book for the Church : one on the Calen- 
 dar and Tables of Lessons, with the Collects, Epistles 
 and Gospels ; another, on the Morning and Evening- 
 Service ; a third, on the Litany, and occasional prayers 
 and thanksgivings ; a fourth, on the order for the ad- 
 ministration of the Holy Communion ; and a fifth, to 
 report in what manner the Psalms should be used." — 
 (Periys "Handbook General Con." p. 72.) 
 
 No effort was made at this Convention for the adop- 
 tion of the " Proposed Book." The House of Clerical 
 and Lay Deputies proceeded, so far as the resolutions 
 above noted would indicate, to compile a Prayer Book 
 de ?iovo, implying thereby that no Prayer Book of au- 
 thority existed. But, as Bishop Perry well says in his 
 " Handbook of the General Convention " {p. 72): " The 
 latitude of change this course seemed to indicate was 
 lessened by the general disposition of the members of 
 the Convention to vary the Book as little as possible 
 from the English model." This implied opinion of the 
 House of Clerical and Lay Deputies, that the English 
 Prayer Book had no authority, has been used by some 
 as the basis of an argument against the identity of the 
 American Church with the Church of England, and 
 also as evidencing what was the mind of the Church 
 in 1739, regarding the force of the Ecclesiastical 
 Law of the Church of England upon the American 
 Church. As this question will be noted hereafter, 
 consideration of it at any length, at the present mo- 
 ment, is not necessary. But before proceeding with 
 the question in hand, I desire to call attention to a 
 statement that has been repeatedly made, that the 
 General Convention (as one statement is), or the 
 
S2 LA W OF THE CHURCH. 
 
 House of Clerical and Lay Deputies, in 1789, resolved, 
 " that the Protestant Episcopal Church possesses no 
 institutions until made for her specially, and that we 
 are no further bound by either the Catholic or the 
 English Canons when confessedly applicable, than as 
 we distinctly and by legislation recognize them." I 
 can find no record of either the presentation or the 
 adoption of any such resolution by either House in 
 1789, nor any reference to such a resolution in Perry's 
 reprint of the ''Journals of General Conventions, etc.," 
 Perry's " Handbook of the General Conventions, 1785— 
 1877," or in the 1st or 2d Editions of Bishop White's 
 "Memoirs." In Vinton's "Manual on Common Law" 
 the statement quoted is made, and "Hoffman's Law of 
 the Church " (p. 37, note) is given as authority ; but 
 reference thereto shows that judge Hoffman makes no 
 such statement. Dr. Vinton also gives Bishop White's 
 "Memoirs of the Church" {p. 175, et. seq ) as another 
 authority, but Bishop White nowhere in his " Me- 
 moirs" so far as I have been able to find, makes any 
 such statement, nor can any implication be drawn from 
 his words that such a resolution was even offered. 
 There appears to be no more authority for the state- 
 ment that such a resolution was adopted by either 
 House of the Convention of 1789, than for any " cun- 
 ningly devised fable." The deliberations of the two 
 Houses on the provision of a Book of Common Prayer, 
 we are told, were conducted with " the utmost har- 
 mony." 
 
 The desire of the House of Bishops, that no mate- 
 rial alterations from the Prayer Book of the Church of 
 England should be made, prevailed. The alterations 
 made, other than those of a political nature, were 
 
ENGLISH ECCLESIASTICAL LAW. 83 
 
 mainly verbal, together with the omission of repeti- 
 tions." A few additions were made, viz., certain selec- 
 tions of Psalms, but the use of which was optional; a 
 Service of Thanksgiving, an Order for Family Prayer, 
 and an Office for the Visitation of Prisoners taken 
 from the Irish Prayer Book. 
 
 Besides these, the Order for the Administration of 
 the Holy Communion was changed to conform more 
 nearly to the First Prayer Book of Edward VI., by 
 the restoration of the Oblation and Invocation to the 
 Consecration Prayer, of which they were formerly a 
 part. The several alterations and additions were 
 finally completed on October 16th, and the Book of 
 Common Prayer was set forth and ordered to be in use 
 from the 1st of October, 1790. 
 
 A joint committee of both Houses was appointed to 
 superintend the publication of the Book of Common 
 Prayer as set forth by the Convention. 
 
 One other matter connected with the Prayer Book 
 should be carefully noticed, viz., the action taken re- 
 garding the Preface to the Book of Common Prayer, 
 which has a most important bearing upon the question 
 as to what was the mind of the General Convention of 
 1789, regarding any material departure from the disci- 
 pline, as well as the doctrine and worship of the Church 
 of England. 
 
 The argument has been made, that the Preface to 
 the Prayer Book is " not in the form of a legal enact- 
 ment," and " without evidence of its ever having been 
 submitted to and formally adopted by the General 
 Convention," and is characterized as " perhaps only 
 the work of a committee." 
 
 Let us see how far this is true, the Journals of the 
 
84 LA W OF THE CHURCH. 
 
 Conventions of 1789 and 1792 being - our authorities in 
 the matter. On page 121, Vol. I., of Perry s Riprint 
 of the "Journals of the Early Conventions " {Journal 
 of the House of Bishops) is this record : " Thursday, 
 October 15, 1789. . . . This House originated, 
 and proposed to the House of Clerical and Lay Depu- 
 ties, ... a table of contents, a form or manner 
 of printing the former Preface. . . . These were 
 sent by the Secretary to the House of Clerical and 
 Lay Deputies." 
 
 On page no of the same "Journals, etc." {Journal of 
 the Hou^e of Clerical and Lay Deputies), it is recorded 
 as follows : " Friday, October 16, 1789. ... A 
 Preface and Table of Contents were sent to this House 
 by the House of Bishops, which, with their concur- 
 rence, were referred to the committee to be appointed 
 to superintend the publication of the Book about to be 
 issued by the Convention." 
 
 On page 1 12 (same date), is this record : — " Resolved; 
 That the Rev. Dr. William Smith, etc., be a committee 
 to superintend the printing of the Book of Common 
 Prayer, as set forth by this Convention, and that they 
 advise with any person or persons who shall be ap- 
 pointed by the House of Bishops for the same pur- 
 pose." 
 
 On page 122 {Journal, House of Bishops), same date, 
 is this record : — "This House received from the House 
 of Clerical and Lay Deputies a message informing that 
 they had appointed a committee, to join with any per- 
 son to be appointed by this House, in setting forth the 
 Book of Common Prayer. In consequence of which 
 the Right Rev. Bishop White agrees to assist the com- 
 mittee in preparing the book for publication." This 
 
ENGLISH ECCLESIASTICAL LA IV. 85 
 
 action was taken by each House on the last day of the 
 session of 1789. 
 
 In the General Convention of 1792, certain amend- 
 ments were made to some of the Offices, and a joint 
 committee appointed to compare the Book of Common 
 Prayer with the original Acts, etc. On page 166 (" 'Jour- 
 nal House of Bishops ") it is recorded : 
 
 "The House originated alterations in the Office for 
 Ordaining Deacons ; and alterations of the Preface, 
 and sent them to the House of Clerical 
 and Lay Deputies, requesting their concurrence." 
 Following this, on the same page, is this record: "The 
 House received from the House of Clerical and Lay 
 Deputies amendments to the additions in the Office 
 for Ordaining Deacons, and in the Preface; in which the 
 House concurred." In the Convention of 1789 the Pre- 
 face was referred to a committee, but in the Convention 
 of 1792, after the said committee had reported their 
 action in the matter, the Preface was amended and 
 acted upon by the Convention. The records of the Con- 
 vention of 1792 show that the Preface of our Prayer 
 Book is not the mere " work of a committee," and that 
 there is evidence, conclusive evidence, that it was form- 
 ally adopted hy the General Convention, and is there- 
 fore an authoritative statement of what was the mind 
 and purpose of the Church regarding the matters 
 therein set forth. 
 
 We have seen that the Convention of 1789 received 
 its authority from the Churches in the different States; 
 that its aim was to form a union of these different 
 Churches, and complete a national organization of the 
 American Church, and that its principal enactments 
 were the establishing of a Constitution and Code of 
 
86 LA W OF THE CHURCH. 
 
 Canons, and the revision of the Prayer Book of the 
 Church of England, in order to adapt it to the use of 
 the Church in the United States of America. We have 
 seen, as one has said, how " the fabric of the govern- 
 ment of the Protestant Episcopal Church was founded 
 upon the Apostolic Rock, and built up of the living 
 stones of the English Church." 
 
 I have deemed it necessary to review, thus, at some 
 length, the history and proceedings of the Church dur- 
 ing its formative period as a National Church, believ- 
 ing that only by so doing can we consider understand- 
 ing^ the question of the continuing identity of our 
 Church with the Church of England, and the truth of 
 the third proposition, which I would endeavor to es- 
 tablish, viz.: That the English Ecclesiastical Law 
 continued to be the Law of the American Church 
 after 1789, and remains a part of the Law of the 
 Church to-day, so far as it is applicable, and not su- 
 perseded by enactments of our own. 
 
 Some, who deny the truth of this proposition, assert 
 that the Protestant Episcopal Church is a new crea- 
 tion, and that before the Convention of 1789 it was 
 " without form and void," bound by no Canons, subject 
 to no Law, and possessed of no Prayer Book; that the 
 Convention of 1789 formed the Church, and provided 
 for it a Constitution, a Code of Canons, and a Liturgy ; 
 that "the whole organization, being new, had no fet- 
 ters to bind it, and therefore was then, and is now, ab- 
 solutely free from all the shackles of the English Law." 
 This idea of the Church held by some members of the 
 Convention of 17^9, was most strongly denounced by 
 Bishop White, who says, speaking of those who im- 
 plied that there were no forms of prayer, no offices, 
 
ENGLISH ECCLESIASTICAL LA W. 87 
 
 and no rubrics, until they should be formed by the Con- 
 vention, " they did not carry their right so far; but 
 they reasoned and expostulated on the point, with sev- 
 eral of the gentlemen, to no purpose. They would not 
 allow that there was any book of authority in exist- 
 ence ; a mode of proceeding in which they have acted 
 differently from the Conventions before and after them ; 
 who have recognized the contrary principle when any 
 matter occurred to which it was applicable." — (" Me- 
 moirs" \st Ed., pp. 177, 178.) 
 
 And again: " The congregations were always under- 
 stood to be possessed of a Liturgy, before the conse- 
 cration of her Bishops, or the existence of her Conven- 
 tions. It would have been thought a strange doctrine 
 in any of the clerg} r , had they pretended that they 
 were released from all obligation to the use of the 
 Book of Common Prayer, by the Revolution." — {Idem, 
 p. 176.) 
 
 Citations could be produced, almost ad infinitum, in 
 proof that after the Revolution the Church in every 
 State believed herself to be still possessed of the Lit- 
 urgy of the Church of England; that its use was still 
 obligatory upon the Church, and must so continue 
 until changed or superseded by competent and lawful 
 authority, and that it was the wish and intention of 
 the Church in every State to adhere to the Liturgy of 
 the Church of England as far as might be consistent 
 with the American Revolution and the Constitutions 
 of the various States. But further citations on this 
 point are unnecessary. The voice of the Church, as 
 expressed in the separate State Conventions, is, as we 
 have seen, unanimous on that point, and therefore con- 
 clusive as to the mind and intent of the Church. The 
 
S3 LA JV CF THE CHURCH. 
 
 Liturgy of the Church of England was her Liturgy, 
 and was to continue to be her Liturgy, with only such 
 alterations as might be necessary to make it conform 
 to the law of the land, and to her change of condition, 
 from a dependent to an independent Church. We 
 have seen that this " mind and intent " of the Church 
 governed the action of the General Conventions of 
 1789 and 1792, and led them to set forth, not a new 
 Liturgy, but the old Liturgy of the Church of Eng- 
 land, with minor and necessary alterations, but identi- 
 cal in every essential, as the Liturgy of the Church in 
 America, and in that Liturgy authoritatively declared 
 to the world, " that this Church is far from intending 
 to depart from the Church of England in any essential 
 point of doctrine, discipline, or worship, or further than 
 local circumstances require." 
 
 In this review of the history of the Church during its 
 formative period as a National Church, it must have been 
 plainly apparent — as Bishop White well says at the 
 close of his "Narrative of Events'''' — "that the object 
 kept in view, in all the consultations held, and the de- 
 terminations formed, was the perpetuating of the Epis- 
 copal Church on the ground of the general principles 
 which she had inherited from the Church of England, 
 and cf not departing from them, except so far as 
 either local circumstances required or some very im- 
 portant cause rendered proper. To those acquainted 
 with the system of the Church of England, it must be 
 evident that the object here stated was accomplished 
 on the ratification of the Articles." — {''Memoirs" 1st 
 Ed., p. 29.) 
 
 The "Thirty-nine Articles of Religion," as they 
 stand in the Prayer Book of the Church of England, 
 
ENGLISH ECCLESIASTICAL LAW. Sg 
 
 were adopted by the Convention of i.oi, "without 
 their altering of even the obsolete diction in them, but 
 with notices of such changes as change of situation 
 had rendered necessary. Exclusively of such there is 
 one exception — that of adopting the Article concern- 
 ing the Creeds to the former exclusion of the Athana- 
 sian." — ( Wliitcs " Memoirs," 1st Ed., p. 28.) 
 
 The adduction cf historical facts, and the citations 
 from the opinions of those who were most active and 
 influential in forming and completing the national 
 organization of our Church, which I have herein set 
 forth, proves, most conclusively, that the Fathers cf 
 the American Church, in all their proceedings, had 
 ever in mind the preservation of her identity with the 
 Church of England. That they succeeded therein, 
 and that the Church in America, after her organiza- 
 tion as a National Church in 1789, still preserved her 
 identity in all essential features with the Church of 
 England, and that she still preserves that identity, can- 
 not, in my judgment, be reasonably doubted. 
 
 It is manifested in the authoritative use of a Lit- 
 urgy, that is, in every essential feature identical with 
 the Liturgy of the Church of England ; in the adoption 
 of the Articles of Religion, as set forth by the Church 
 of England, with only slight variations; in an adher- 
 ence to the same Faith, complete and undefined; in 
 the use of the same Sacraments; in the Episcopal Order, 
 transmitted and received from the Church of England; 
 and, as I shall endeavor to prove, in the acceptance 
 and recognition of the binding force and obligation of 
 the discipline of the Church of England — the Ecclesi- 
 astical Law of that Church — so far as it is applicable, 
 and not superseded by civil or canonical enactments. 
 
9 o 
 
 LAW OF THE CHURCH. 
 
 This question of identity arose in the General Con- 
 vention of 1814, and was so clearly and unqualifiedly 
 answered in the affirmative that it ought to settle the 
 question forever. The question regarding the identity 
 of the Church arose from a statement made, " that in 
 some cause or causes pending in the courts, this iden- 
 tity had been denied." — {White's " Memoirs" \st Ed., 
 p. 297.) 
 
 He further says {Idem, p. 297) : "It being foreseen 
 that this pretence [the non-identity of the Church] will 
 be set up whenever the appeal shall come on in Wash- 
 ington, there was supposed to be a call for the declara- 
 tory instrument." It is as follows: "The following 
 declaration was proposed and agreed to: It having 
 been creditably 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 to make 
 the declaration, and to request the concurrence of the 
 House of Clerical and Lay Deputies therein, that 
 1 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 princi- 
 ple in doctrine, or in worship, or in discipline, being 
 induced by a characteristic of the Church of England, 
 supposing the independence of the Christian Churches, 
 under the different sovereignties, to which, respective- 
 ly, their allegiance in civil concerns belongs. But that 
 when the severance alluded to took place, and ever 
 
ENGLISH ECCLESIASTICAL LAW. 9 r 
 
 since, this Church conceives of herself as professing 
 and acting on the principles of the Church of England, 
 is evident from the organization of our Conventions, 
 and from their subsequent proceedings, as recorded on 
 the Journals; to which, accordingly, this Convention 
 1 refer for satisfaction in the premises. But it would be 
 contrary to fact, were any one to infer that the disci- 
 pline exercised in this Church, or that any proceedings 
 therein are at all dependent on the will of the civil or 
 of the ecclesiastical authority of any foreign country. 
 The above declaration having been communicated to 
 the House of Clerical and Lay Deputies, they returned 
 for answer that they concurred therein." — {Perry s 
 " Reprint Jour. Con." Vol. I., pp. 431, 432.) 
 
 On page 409 (" Journal of the Cause of Clerical and 
 Lay Deputies" 1814), it is recorded that the "declara- 
 tion was concurred in and returned to the House of 
 Bishops." 
 
 No stronger proof could be desired, upon the ques- 
 tion of identity, than this declaration of the General 
 Convention of 1814, a distinct affirmance, by the 
 body with the changed name, of its own identity. But 
 if this be not sufficient, the contingency for which, 
 as Bishop White says, the Convention provided, did 
 arise, and the appeal of the case referred to came be- 
 fore the Supreme Court at Washington the following 
 year, and the Court unanimously confirmed, in effect, 
 the declaration of the General Convention, that " The 
 Protestant Episcopal Church in the United States of 
 America " is the same body formerly known in the 
 States as " The Church of England," and that property 
 devised before the Revolution to congregations belong- 
 ing to the Church of England is now the property of 
 
9 2 LA W OF THE CHURCH. 
 
 the Protestant Episcopal Church. The Court also 
 declared that certain Acts of the Legislature of Vir- 
 ginia, so far as they went to divest the Episcopal Church 
 of property acquired by donation previous to the 
 Revolution, were unconstitutional and inoperative. 
 — (Territt et. al. v. Taylor et. al., 9 Cranck, 43; see 
 also Mason ct. al. v. Muncaster et. al., 9 Wheaton, 
 
 445-) 
 
 Further comment or citation of authorities on this 
 
 point is unnecessary. 
 
 Having proved that the American Church still re- 
 tains her identity with the Church of England, let us 
 now turn to the direct consideration of the main prop- 
 osition, I would seek to prove, viz., that the English 
 Ecclesiastical Law continued lo be a part of the law 
 of the American Church after its organization, and is 
 a part of that law to-day, so far as it is applicable, and 
 not superseded by enactments of our own. 
 
 First. What was the intent of the Church as to the 
 continuing force and obligation of the English Eccles- 
 iastical Law ? The historical facts and opinions 
 before adduced clearly show that up to the time of 
 the holding of the General Convention in 1789, the 
 intent of the Churches in the different States was to re- 
 tain that Law, and to acknowledge its continuing force 
 and obligation. Did the General Conventions of 1789 
 and 1792, and the subsequent Conventions, affirm and 
 continue that intent ? 
 
 I hold that they did, and that they so explicitly de- 
 clared. I also hold that they were under what Bishop 
 White called an "antecedent obligation" not to depart 
 from the discipline of the Church of England. 
 
 In the Preface of the Prayer Book, which, as I have 
 
ENGLISH ECCLESIASTICAL LAW. 93 
 
 snown, was proposed in the General Convention of 
 1789 and formally adopted by the General Convention 
 of 1792, it is solemnly declared that "This Church is 
 far from intending to depart from the Church of Eng- 
 land in any essential point of doctrine, discipline or 
 worship, or further than local circumstances require." 
 And in the same Preface it is declared, in order to 
 make still clearer the mind and intent of the Church, 
 that " in every Church, what cannot be clearly deter- 
 mined to belong to doctrine must be referred to disci- 
 pline'' 
 
 I need not stop to argue that by the "discipline" of 
 the Church is meant the law of the Church, that " dis- 
 cipline " embraces law, and that the " discipline " of the 
 Church comprises the whole body of Ecclesiastical 
 Law by which the Church is governed. 
 
 Judge Hoffman, in his "Law of the Church" {p. 39 
 ct scq.), discusses this question, and proves conclu- 
 sively that " discipline " embraces law. 
 
 The Courts have always interpreted the "discipline" 
 of the Church as meaning the law of the Church, and 
 they use the words interchangeably. — {Sohier v. Trinity 
 Church, 109 Mass., 1; Watson v. Jones, 13 Wall., 679; 
 Chase v. Cheney, 58 ///., 509; Pounder v. Ashe, 44 Neb., 
 672 ; Christ Church v. Phillips, 5 Del. Ch. P.p., 429; 
 Ger. Ref Ch. v. Scibert, 3 Barr, 282 ; Gaff et. al. v. 
 Greer et. al., 88 Ind., 122 ; White Lick Quaker Case, 
 89 Ind., 136; Stack v. OHara, 98 Penn. St. Pep , 213.) 
 
 It was to prevent any question arising about her in- 
 tent as to the continuing force and obligation of the 
 English Ecclesiastical Law, that the Church, at the 
 beginning of her existence as a National Church, 
 made this official declaration and placed it on her very 
 
94 LA W OF THE CHURCH. 
 
 forefront, that she was " far from intending to depart 
 from the Church of England in any essential point of" 
 Ecclesiastical Law, " further than local circumstances 
 require." 
 
 Previous to the General Convention of 1792, the 
 House of Bishops had expressed an opinion regard- 
 ing a question as to the exact form in which the 
 Apostles' Creed should be printed in the Prayer 
 Book, viz., that it was "a duty to maintain the prin- 
 ciple that the Creed, as in the English Book, must be 
 considered as the Creed of the Church until altered by 
 the consent of both Houses, which was not yet done." 
 —{Whites "Memoirs" 1st Ed. t p. 183.) The General 
 Convention of 1792 affirmed the position taken by the 
 House of Bishops, that the Prayer Book of the Church 
 of England is binding, except in so far as " altered by 
 the consent of both Houses" of Convention. 
 
 The General Convention of 1808 still more explicitly 
 declared the intent of the Church as to the continuing 
 force and obligation of the English Ecclesiastical Law 
 upon the American Church. On the third day of the 
 session, May 19, 1808, the deputies from the Church 
 in Maryland communicated to the House that they 
 had been instructed by the Convention of the Church 
 in that State " to call the attention of the General 
 Convention to the expediency of adopting the English 
 Canon concerning marriages, and inserting the same in 
 future editions of the Prayer Book." The Canon re- 
 ferred to is Canon 99 of the Code of Canons of 1603. 
 Acting on this request, the House adopted a resolution 
 referring the communication to the House of Bishops, 
 with a request that they should consider it and " make 
 any communication to this House which they may 
 
ENGLISH ECCLESIASTICAL LA IV. 95 
 
 deem proper." The resolution, with the communica- 
 tion referred to, was then sent to the House of Bishops. 
 — (Perry's "Jour. Con." Vol. I., pp. 341, 342.) 
 
 On May 21st, the House of Bishops sent to the 
 Lower House a message, in part as follows: "The House 
 of Bishops having taken into consideration the mes- 
 sage sent to them by the House of Clerical and Lay 
 Deputies, relative to the subject of marriage, as con- 
 nected with the table of degrees within which, accord- 
 ing to the Canons of the Church of England, marriage 
 cannot be celebrated, observe as follows : 
 
 "Agreeably to the sentiment entertained by them in 
 relation to the whole Ecclesiastical system, they 
 consider that table as now obligatory on this Church, 
 and as what will remain so; unless there should here- 
 after appear cause to alter it, without departing from the 
 Word of God, or endangering the peace and good 
 order of this Church." — (Perry s "Jour. Con." Vol. I., 
 
 A 355) 
 
 It is a plain, explicit, unequivocal statement of the 
 House of Bishops (and, it may be reasonably inferred, 
 of the House of Clerical and Lay Deputies also, as the 
 Journal of the Convention records no dissenting voice 
 when the message was read therein), of their opinion 
 as to the " continuing force and obligation of the Eng- 
 lish Ecclesiastical Law upon the American Church." 
 It is a positive declaration that " the whole Ecclesiastical 
 system" of the Church of England (including of course 
 the Common Law Ecclesiastical, as well as the Canons 
 of 1603), so far as applicable to our local circum- 
 stances and not superseded by enactments of our own, 
 is still " obligatory on this Church" and is to remain 
 so, until it is altered by competent and lawful authority. 
 
g6 LAW OF THE CHURCH. 
 
 It was also declared by the General Convention 
 of 1814, as before shown, that the "change of name" 
 did not work a change in " discipline," in the gen- 
 eral Law of the Church, " but that when the severance 
 alluded to took place, and ever since, this Church 
 conceives of herself as professing and acting on the 
 principles of the Church of England." — {Perry s "Jour. 
 Con." Vol. I., p. 431.) 
 
 These citations prove conclusively the intent of the 
 Church regarding the English Ecclesiastical Law, that 
 she was "far from intending to depart from the Church 
 of England in any essential point " of Ecclesiastical Law 
 "further than local circumstances" might require; a di- 
 rect avowal that in refusing to depart therefrom she did 
 intend to adhere to the Ecclesiastical Law of England so 
 far as it was applicable and not superseded by any en- 
 actments of her own. And when she was requested 
 to enact a portion of that Law as the Law of the Church, 
 she unhesitatingly replied that it was unnecessary, 
 as the whole Ecclesiastical Law of the Church of Eng- 
 land was "now obligatory on this Church." 
 
 Having proven that it was the intent of the Church 
 to adhere to the English Ecclesiastical Law, I will 
 next endeavor to prove that the Church was under an 
 "antecedent obligation" not to depart therefrom. 
 
 In order to secure the consecration of American 
 Bishops from the hands of the English Bishops, the 
 American Church made a Concordat, not under that 
 name, perhaps, or explicitly described as such, but 
 none the less a Concordat in substance, with the 
 Church of England, that if her request for the conse- 
 cration of American Bishops was granted, she, on her 
 part, would retain " the same discipline and forms of 
 
ENGLISH ECCLESIASTICAL LA IV. q 7 
 
 worship, as far as was consistent" with the Constitu- 
 tions of the States. 
 
 The Convention at Philadelphia, 1785, addressed a 
 petition to the Archbishops of Canterbury and York 
 and the Bishops of the Church of England, praying 
 them to "confer the Episcopal character" on such 
 persons as might be recommended by the Conventions 
 of the several States. 
 
 At the same Convention, the Liturgy of the Church 
 had been subjected to many proposed alterations, 
 and a proposed Constitution had also been prepared. 
 Many of the alterations in the "Proposed Book of 
 Common Prayer" were of such a character, and so 
 radical, as to meet with general disapprobation, and 
 some of the clergy, as Bishop White tells us (''Mem- 
 oirs," 1st Ed., p. 115), " had been very early in convey- 
 ing to their clerical acquaintance in England an unfav- 
 orable representation of the spirit of the proceedings" 
 of the Convention of 1785. From these reports the 
 English Prelates were apprehensive that the Church 
 in America intended a further departure from the doc- 
 trine, discipline and worship of the Church of England 
 than was necessary. In their reply to the petition of 
 the Philadelphia Convention (February 24, 1786), the 
 English Bishops, after assuring the members of the 
 Convention of their desire to comply with the prayer 
 of their address, conclude their reply as follows: 
 " While we are anxious to give every proof not only 
 of our brotherly affection, but of our facility in for- 
 warding your wishes, we cannot but be extremely 
 cautious, lest we should be the instruments of estab- 
 lishing an Ecclesiastical system which will be called a 
 branch of the Church of England, but afterwards may 
 
98 LA W OF THE CHURCH. 
 
 possibly appear to have departed from it essentially, 
 either in doctrine or in discipline." — {Perry s "Jour. 
 Con.," Vol. I.,/. 36.) 
 
 The next Convention, which met in Philadelphia in 
 June, 1786, proceeded at once to reverse those decisions 
 of the former Conventions which might seem to any to 
 indicate a purpose, on their part, of departing from 
 the Church of England " either in doctrine or in disci- 
 pline," as indicated in the letter of the English Prel- 
 ates. This action was taken, as Bishop White tells 
 us, "without even an opposition." — {"Memoirs" 1st 
 Ed., p. 126.) 
 
 The Convention also adopted a resolution that a 
 committee be appointed to draft an answer to the let- 
 ter of the Archbishops and Bishops of England, such 
 "as will satisfy them that no such alterations as would 
 be any essential deviation from the Church of Eng- 
 land have been adopted or intended." — {Perry s "Jour. 
 Con.," Vol. I., p. 37.) 
 
 The answer was formally adopted and signed by the 
 members of the Convention on June 26, 1786, in which 
 they said : " While doubts remain of our continuing to 
 hold the same essential articles of faith and discipline 
 with the Church of England, we acknowledge the pro- 
 priety of suspending a compliance with our request." 
 With this acknowledgment of the justice of the posi- 
 tion of the English Prelates, they then proceed to 
 make this declaration and promise to the Bishops of 
 the Church of England: " We are unanimous and ex- 
 plicit in assuring your lordships that we neither have 
 departed, nor propose to depart, from the doctrines of 
 your Church. We have retained the same discipline 
 and forms of worship as far as was consistent with our 
 
ENGLISH E CCL E SI A STICAL LAW. 99 
 
 civil Constitutions." — {Perry s "Jour. Con." Vol. I., 
 p. 44.) 
 
 Before receiving this letter from the Convention, the 
 Archbishop of Canterbury wrote, under date of July 
 4, 1786, to the Committee of the General Conven- 
 tion, communicating the Act of Parliament which had 
 been passed to permit the consecration " to the office 
 of Bishop persons being subjects or citizens of coun- 
 tries outside of his majesty's dominions." The letter 
 concludes as follows : " But whether we can consecrate 
 any or not, must yet depend on the answers we may 
 receive, to what we have written." — {Perry's "Jour, of 
 Con.;' Vol. I., p. 55.) 
 
 The Convention of 1786, which had adjourned in 
 June to await the replies of the English Bishops, re- 
 assembled at Wilmington, Del., on October 10, 1786, 
 and an Act was agreed upon and established, entitled, 
 " An Act of the General Convention of the 
 Clerical and Lay Deputies of the Protestant 
 Episcopal Church in the States of New York, 
 New Jersey, Pennsylvania, Delaware, and 
 South Carolina, held at Wilmington, in the 
 State of Delaware, on Wednesday, the iith 
 of October, 1786." 
 
 In this Act, they first relate that " the said Conven- 
 tion, anxious to complete their Episcopal system by 
 means of the Church of England, did subscribe and 
 transmit an address to the Most Reverend and Right 
 Reverend the Archbishops of Canterbury and York, 
 and the Bishops of the Church of England, earnestly 
 entreating that venerable body to confer the Episco- 
 pal character on such persons as should be recom- 
 mended by this Church in the several States so repre- 
 
ioo LA W OF THE CHURCH. 
 
 sented," and that they had "received the most friendly 
 and affectionate letters in answer to the said address 
 from the said Archbishops and Bishops, opening a fair 
 prospect of the success of their said applications, but 
 at the same time earnestly exhorting this Convention 
 to use their utmost efforts for the removal of certain 
 objections by them made." They then proceed to de- 
 clare as follows : <; In pursuance whereof, this present 
 General Convention hath been called, and is now assem- 
 bled, and being sincerely desirous to give every satisfac- 
 tion to their Lordships which will be consistent with the 
 union and general content of the Church, they repre- 
 sent, and declaring their steadfast resolution to main- 
 tain the same essential Articles of Faith and Discipline 
 with the Church of England, do declare," etc. — {Perry s 
 "f„ur. of Con.;' Vol. !.,/>. 58.) 
 
 This Act was ordered by the Convention to be sent 
 to the Archbishops of Canterbury and York, together 
 with a letter in answer to the late letters of those Prel- 
 ates, which concludes as follows : " We have taken 
 into our most serious and deliberate consideration the 
 several matters so affectionately recommended to us 
 in those communications, and whatever could be done 
 towards a compliance with your fatherly wishes and 
 advice, consistently with our local circumstances and 
 the peace and unity of our Church, hath been agreed 
 to, as we trust will appear from the enclosed Act of 
 our Convention, which we have the honor to transmit 
 to you, together with the Journal of our proceedings." 
 — (Perry' s "Jour, of Con." Vol. I., p. 61.) 
 
 Such, in brief, were the steps taken by the Church 
 in America for the obtaining from the Prelates of the 
 Church of England the consecration of Bishops for the 
 
ENGLISH ECCLESIASTICAL LAW. 101 
 
 Church in America, and in which is plainly evidenced 
 the reasons for and the terms of the Concordat (so far 
 as they relate to the purpose of this book) finally 
 established between the Church in America and the 
 Church of England. 
 
 First, the petition of the American Church to the 
 English Prelates, praying them to consecrate Bishops 
 for the Church in America, then their reply stating 
 their willingness so to do, provided they do not thereby 
 establish a branch of the Church of England which 
 shall afterwards "appear to have departed from it 
 essentially, either in doctrine or in discipline'" ; then 
 another letter from the Archbishop of Canterbury, 
 stating that their consent to the consecration of 
 Bishops for America will " depend on the answers we 
 may receive to what we have written"; then the re- 
 ply of the American Church in Convention assembled, 
 assuring the English Prelates that they did not pro- 
 pose to depart from the doctrines and discipline of 
 the Church of England, and that they had "retained 
 the same discipline and forms of worship as far as was 
 consistent" with the laws of the land; then at the 
 next Convention, the Church entered into a solemn 
 agreement and Concordat with the Church of England, 
 and established it as an " Act of this Corporation," 
 that if the Bishops of the Church of England would 
 "confer the Episcopal character on such persons as 
 should be recommended by the Church in the several 
 States," she on her part agreed and declared her 
 " sUadfast resolution to maintain the same essential 
 Artie Its of Faith and Discipline zvith the Church of 
 England!' 
 
 It is difficult to see how the American Church could 
 
I0 2 LA W OF THE CHURCH. 
 
 have made a more binding Concordat on her part. It 
 was not a mere resolution, it was an " Act of the 
 General Convention." She intended to establish it, 
 and did so establish it, as a Law of the Church. The 
 Bishops of the Church of England, on their part, ac- 
 cepted and confirmed this Concordat by their act in 
 consecrating the Rev. Drs. White and Provoost 
 as Bishops for the American Church. 
 
 The American Church thus received certain powers 
 from the English Church under certain conditions, one 
 of which was, that she was not to depart from the 
 Church of England in any essential point of Ecclesias- 
 tical Law, or further than local circumstances, or the 
 law of the land required. To these conditions, as the 
 terms under which she received those powers, she 
 bound herself by a solemn enactment of her General 
 Convention. If thereby the Church bound herself to 
 retain the English Ecclesiastical Law, a fact impossi- 
 ble, in my judgment, of being controverted, then is the 
 English Ecclesiastical Law, so far as it is applicable to 
 our circumstances, and not superseded by enactments 
 of our own, the Law of our Church to-day, and noth- 
 ing but a repeal thereof, either actual or plainly im- 
 plied, can release the Church from the binding force 
 and obligation of that Law. 
 
 Bishops White and Provoost, who were consecrated 
 in accordance with the terms of this Concordat, be- 
 lieved the Church to be thus bound, and ever so 
 maintained, stoutly resisting every attempt that was 
 made in any succeeding General Convention to depart 
 therefrom. — (See Journals of General Conventions of 
 1789 and \J92\ also, Bishop White's "Memoirs" 1st 
 Ed., p. 175, et set/.) And every General Convention of 
 
ENGLISH ECCLESIASTICAL LAW. 103 
 
 the Church, in which the question has arisen, has like- 
 wise so declared and maintained. 
 
 The General Convention of 1808 declared that the 
 whole Ecclesiastical system of the Church of England 
 (so far, of course, as it was adapted to our circum- 
 stances and not superseded by our own legislation) was 
 "now obligatory on this Church," and the General 
 Convention of 1S14 declared that " when the sever- 
 ance alluded to took place, and ever since, this Church 
 conceives of herself as professing and acting on the 
 principles of the Church of England." 
 
 These facts evidence the conclusion, in my opinion 
 an irresistible one, that when the American Church 
 began her national life, she began it under an " ante- 
 cedent obligation," under a Concordat with the Church 
 of England, that, as far as was possible, there should be 
 no essential departure, on her part, from the Ecclesi- 
 astical Law of that Church. 
 
 And with this declaration has she prefaced her Lit- 
 urgy, and so long as that declaration there remains, 
 that she " is far from intending to depart from the 
 Church of England in any essential point of doctrine, 
 discipline, or worship, or further than local circum- 
 stances require," so long can she not depart therefrom, 
 without stultifying herself, and violating a most sol- 
 emn legal and moral obligation. 
 
 I have previously shown that the Common Law of 
 the Colonists included both the Common Law and the 
 Statute Law of England, at the time of the coloniza- 
 tion of this country, and that in this body of Colonial 
 Common Law was included the Common Law Eccles- 
 iastical, and the Canon and Statute Law of the Church 
 of Englan'. 
 
104 LA W OF THE CHURCH. 
 
 This body of Colonial Common Law is the Common 
 Law to-day, of every State in the Union, with the single 
 exception of the State of Louisiana. From this fact may 
 fairly and justly be drawn an argument for the contin- 
 ued force of the Ecclesiastical portion of this Common 
 Law upon the American Church. I but merely state 
 the fact that such an argument may justly be drawn 
 therefrom, without entering into the consideration 
 thereof, and that the Courts have decided that the 
 Common Law Ecclesiastical is included in the Com- 
 mon Law now in force in the several States. — (See 
 Crump v. Morgan, 3 Iredell's Eg. Rep,, 91 ; Gas kins v. 
 Gaskins, 3 Iredell's L. Rep., 158 ; Bogardus v. Trinity 
 Church, 4 Paige's Rep., 177.) 
 
 Let us again apply the " undeniable proposition," be- 
 fore stated, to the facts we have now proven and see 
 how far the terms of that proposition have been com- 
 plied with by these facts. The proposition is, that "laws 
 once in force over an organization must remain in force 
 so long as that identity continues, unless they expire by 
 limitation or are repealed by the law-making power!' 
 
 It has been conclusively proven, and will not, I 
 think, be doubted by any, that the English Ecclesias- 
 tical Law was " once in force over the organization " 
 known as "The Church of England in the Colonies," 
 and having once been in force it must have remained 
 in force, so long as the identity of that Church con- 
 tinued, unless it expired by limitation, or was lawfully 
 repealed. But we have shown that the Church's iden- 
 tity did continue ; that she continued to be the same 
 identical Church, under the name of " Protestant Epis- 
 copal," that she was under the name of " Church of 
 England"; that a change of name merely works no 
 
ENGLISH ECCLESIA S TIC A L LA IV. 105 
 
 change in identity ; that the Church herself, speaking 
 with authority, has declared " 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' " ; and that the 
 highest Courts of our land have also assumed and de- 
 clared this continued identity of the Church. Then, 
 since the identity of the Church has continued, must 
 the law once in force in that Church necessarily con- 
 tinue, unless it has expired by limitation, or been 
 repealed by the law-making power. But it has not ex- 
 pired, could not expire, by limitation, nor has it been 
 repealed by the law-making power. On the contrary, 
 the law-making power of the Church, which is the 
 General Convention, has, as we have shown, repeatedly 
 declared her adherence to that Law, the English Ec- 
 clesiastical Law, once in force over her, and recognized 
 it as being still of force and obligation upon her. In 
 order to obtain from the English Church the consecra- 
 tion of her Bishops that she might be able to retain 
 and continue her Episcopal character, that law-making 
 power of the Church made a Concordat with the Arch- 
 bishops and Bishops of the Church of England, that 
 they would not repeal that Law once in force over her, 
 and in her very Liturgy even, has the Church placed 
 the declaration that she still retains the Ecclesiastical 
 Law of the Church of England. Hence, the conclu- 
 sion is irresistible, that the American Church being 
 identical and continuous with the Church of England, 
 therefore, the Law of that Church, having once been 
 in force over her, and never having expired by limita- 
 tion, nor been repealed by the law-making power, took 
 its place proprio vigore, and continued to be, so far as 
 
106 LA. W OF THE CHURCH. 
 
 adapted to our condition and circumstances, a part of 
 the Law of the American Church. That the English 
 Ecclesiastical Law, with certain modifications, con- 
 tinues to be a part of the Law regulating the affairs of 
 our Church to-day, is not only the mind of the Church 
 herself, as we have seen, it is also the opinion of the 
 great majority of the learned canonists of the Church. 
 Bishop White, whom Judge Ludlow {Batterson v. 
 Thompson, 8 Phil. Rep., 251) names, as "that vener- 
 able Prelate whose name and opinions to this day, 
 even in a civil court, carry with them great weight," 
 says : " To pray for our civil rulers was a duty bound 
 on us by a higher authority than that of the Church. 
 In all other respects, I hold the former Ecclesiastical 
 system to be binding." — {Appendix to Wilson 's " Life 
 of Bishop White" p. 341, cited in Hoffman's " Law of 
 the Church" p. 31.) 
 
 Mr. Odenheimer, afterwards Bishop of New Jersey, 
 says : " It appears to me to be a true view to maintain 
 our right to the Ante-Revolution Canon Law of the 
 English Church, in all points applicable, and where it 
 has not been distinctly rejected or provided for by our 
 own canonical legislation." — {Essay Pub. Alum. Assoc., 
 1841, pp. 58, 59, cited in Hoffman's "Law of the 
 Church? p. 11.) 
 
 Bishop Hopkins, who, previous to his entering the 
 ministry, was a lawyer of great ability, says : " The Law 
 of the Church of England continues to be our Law to 
 this day, so far as it has not been superseded by positive 
 Ecclesiastical legislation." — {"Law of Ritualism',' p. 80.) 
 
 The Rev. Dr. Hawks, a canonist of eminent ability 
 and a recognized authority on Canon Law, says : 
 " The opinions which were entertained in the mother 
 
ENGLISH E CCl t, si A 6 TIC A L LAW. 107 
 
 country, and the decisions which had there 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 though the Independence of the 
 United States dissolved the connection, it evidently 
 did not destroy the prevailing opinions among Church- 
 men as to matters and usages touching the Church. 
 Our branch of the Catholic Church, in establishing her 
 system of polity, must therefore obviously have com- 
 menced her career with opinions, feelings and habits, all 
 derived from her former association with the Church of 
 England. 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." — 
 (" Constitution and Canons" p. 265.) 
 
 In the case of the Rev. Cave Jones, we have the 
 opinion of Thomas Addison Emmet, one of the ablest 
 lawyers of his day. After stating that Law is prior to 
 the existence of a State, and that it comes by inherit- 
 ance, he proceeds to say : " So is it with our Ecclesi- 
 astical Government. In organizing and becoming 
 members of the Protestant Episcopal Church, no one 
 considered himself as becoming a member of a new 
 religion, or as adopting a different form or rule of 
 Ecclesiastical Government, except so far as depended 
 upon the connection in England between Church and 
 State, and the regulations of that country produced 
 by the King's being the head of the Church. These 
 were all necessarily 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 associa- 
 
io8 LA W OF THE CHURCH. 
 
 tion." — (" Report of the Case," etc., p. 493, New York, 
 181 1 ; cited in Hoffman 's "Lata of the Church" p. 38, 
 Note.) 
 
 I will cite but one more of the many opinions that 
 can be adduced in support of the proposition under 
 consideration, and that one that is more than an opin- 
 ion ; one that has been recognized by the Courts as an 
 authority on Ecclesiastical Law, and by them cited 
 with approval. I refer to " The Law of the Church^ 
 by Judge Hoffman, at one time Vice-Chancellor of the 
 State of New York ; a work from which I have already 
 made many citations in support of the different propo- 
 sitions sought to be established. 
 
 In the summing up of his argument that the Church 
 continued to be the same in every essential feature of 
 " doctrine, discipline, and worship " that she was be- 
 fore the Revolution, and after stating that the Church 
 in one of her most solemn acts declared that she meant 
 not to depart from the Church of England in discipline 
 further than local circumstances required, he says {p 41): 
 " 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 discrim- 
 ination made between what of discipline is binding 
 and what is annulled, the conclusion seems irresistible, 
 that this Law, with necessary modifications, retained 
 the same authority after the Revolution which it pos- 
 sessed before." 
 
 And again, after speaking of the alterations in the 
 discipline and the Liturgy of the Church, made neces- 
 sary by the Revolution, and of the Canon Laws of the 
 Church, and the Civil Laws of the States, which com- 
 prise a body of regulations for the Church, he says (f>. 
 
ENGLISH ECCLESIASTICAL LA W 109 
 
 64) : " But there will yet remain many cases not pro- 
 vided for. In these I submit we are to ascertain what 
 was the law of the English Church. By that, such 
 cases are presumptively to be decided; leaving it to be 
 shown that such law is repugnant to some principle, 
 settled custom, or institution of our own, secular or 
 ecclesiastical." The Civil Courts, whenever the ques- 
 tion has come before them, have uniformly recognized 
 the truth of the proposition contended for, and so 
 clearly and convincingly set forth by Judge Hoffman, 
 that the English Ecclesiastical Law, with certain ne- 
 cessary modifications, is of force in the American 
 Church to-day. 
 
 In Lynd v. Menzies et. al. (33 N. J. L. Rep. [4 Vroom\ 
 162), the direct question as to what laws were of force 
 and obligation in the Protestant Episcopal Church 
 came directly before the Court. Chief-Justice Beas- 
 ley, in delivering the opinion of the Supreme Court, 
 declared: "The English Ecclesiastical Law, although 
 somewhat modified by new circumstances and by 
 American usages and statutes, constitutes the substan- 
 tial basis of the law controlling the affairs of this par- 
 ticular Church." 
 
 In Livingston v. Rector et. al. (45 N. J. L. Rep. [16 
 Vroom] 230), the Supreme Court of New Jersey again 
 decided the same question. The Court held that 
 " The English Ecclesiastical Law forms the basis of 
 the law regulating the affairs of the Episcopal Church 
 in this country, and is in force, except so far as it has 
 been modified and changed by statute, and by the 
 usages and Canons of the Church." — {Lynd v. Men- 
 zies et. al. [4 Vrooni], 162. Hoffman's "Laiv of the 
 Church" 14, 30, 34, 64, cited and approved.) 
 
i jo LAW OF THE CHURCH. 
 
 In Jennings v. Scarborough (56 N J. L. Rep. [27 
 Vroom\ 401, decided in 1894), the Supreme Court 
 again affirmed the decision of the Court in Lynd v. 
 Menzies, et. al. (4 Vroom, 162.) 
 
 In the case of Batter son. et. al. v. Thompson et. al. 
 (8 Phil. Rep., 251), the Court declares : "I quite con- 
 cur with Chief-Justice Beasley in the remark made by 
 him in the case heretofore cited. {Lynd v. Menzies, 
 etc.)" 
 
 This decision of the New Jersey Supreme Court 
 (Lynd v. Menzies, etc.) has been cited with approval, 
 by the courts in many of the States, and I can find no 
 case reported wherein its decision has been overruled, 
 or even questioned, and until it is overruled, it must be 
 taken as voicing the opinions of the courts as to 
 the continuing force of the Ecclesiastical Law of the 
 Church of England upon the American Church. The 
 courts of this country have universally acted upon this 
 assumption in deciding the Ecclesiastical cases which 
 have come before them. — (See Hecney v. St. Peter's 
 Church, 2 Edward's Ch. Rep., 608; Humbert v. St. 
 Stephen's Church, 1 Edward's Ch. Rep., 308; Chase v. 
 Cheney, 58 ///. Rep., 509; Crump v. Morgan, 3 Iredell's 
 Eq. Rep., 91 ; Gaskinsw. Gas kins, 3 Iredell's L. Rep., 158; 
 Terrett v. Taylor, 9 Cranch, 43; Watson v. Jones, 13 
 Wall., 679; Society, etc., v New Haven, 8 Wheat on, 
 464; Mason v. Muncaster , 9 Wheat on, 445.) 
 
 The conclusion derived from the consideration of 
 the facts before adduced, and from the opinions and au- 
 thorities above cited, is irresistible, that the English Ec- 
 clesiastical Law, with certain necessary modifications, 
 forms the basis of the Law regulating the Protestant 
 Episcopal Church, and is in force and of obligation in 
 
ENGLISH ECCLESIASTICAL LAW. in 
 
 that Church to-day, so far as it is applicable, and not 
 superseded by our own civil or Ecclesiastical enact- 
 ments. 
 
 These modifications have been most clearly and con- 
 cisely stated by Judge Hoffman, and as his words have 
 received the approval of the courts {Livingston v. Rec- 
 tor et a/., \6 Vroom, 230), I quote them on this point. 
 After stating " that upon every question of construc- 
 tion of a phrase or precept, its admitted acceptation in 
 the English Law is to prevail until otherwise expressly 
 interpreted," he says : " I may state the result in these 
 propositions : 
 
 ** I. The English Canon Law governs, unless it is incon- 
 sistent with, or superseded by a positive institution 
 of our own. 
 " 2. Unless it is at variance with any civil law or doc- 
 trine of the State, either recognized by the Church, 
 or not opposed to her principles. 
 " 3. Unless it is inconsistent with or inapplicable to 
 that position in which the Church in these States 
 is placed. 
 " And let it not be thought," he says, " that in this 
 loyalty to the English Law we abjure the liberty of a 
 National Church, or admit a subserviency to a foreign 
 authority. ... 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 decisions 
 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 
 
112 LA W OF THE CHURCH. 
 
 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, un- 
 directed, and unenlightened judgment." — (" Law of 
 the Church" pp. 64,65.) 
 
 I know of no more fitting words with which to close 
 this discussion of the Sources and Sanctions of Amer- 
 ican Church Law, and of the force and obligation 
 therein of the English Ecclesiastical system, than the 
 words, so true and expressive, of this honored son of 
 the Church. In his "Law of the Church" (so many times 
 referred to in this work, and from which I have already 
 quoted so freely), Judge Hoffman has rendered most 
 valuable service, in helping to make clear the inter- 
 pretation and application of the Church's Laws, and I 
 have less hesitation in making his language my own, 
 for the reason that the work referred to has long 
 been out of print, and is, therefore, accessible to but 
 few of the clergy and laity of the Church to-day. His 
 words may well be pondered by those who would treat 
 the American Church as a newly-reared fabric, the 
 creation of a few clergy and laity in 1789, "without 
 fathers and without brethren — as if it had fallen, 
 like the Roman shield, immediately from Heaven." 
 To those who would sever the ties that bind us to 
 our Mother Church, who would deny us our right- 
 ful inheritance in that great body of Ecclesiastical 
 Common Law, which is but the " wisdom, counsel, ex- 
 perience and observation of many ages of wise and ob- 
 serving men," I would most earnestly commend these 
 wise and thoughtful words of Judge Hoffman : "What 
 advantage can we reap by severing the tie with the 
 Church of England, in this particular, when the wisest 
 
ENGLISH ECCLESIASTICAL LA IV. 113 
 
 of our fathers cherished the connection in every other, 
 as the pillar and foundation of truth?" 
 
 " And what advantages do we not lose, when we dis- 
 claim 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 intel- 
 lect in the Church and on the bench. For our instruc- 
 tion and guidance we have the well-known names of 
 Coke, Holt and Hardwicke, of Nichols, Stowell and 
 Lee, in the tribunals of justice; of Ridley, Gibson, 
 Stillingfleet, and a cloud of others, among the English 
 canonists. Under their auspices, we shall find ' happier 
 walls ' than our own abilities can rear, or our own fan- 
 cies can devise. Here we may attain to certainty, the 
 mother of quietness and repose." 
 
PART TWO. 
 Zhe Xaw of tbe Hmerican Cburcb. 
 
CHAPTER I. 
 
 OF THE INCORPORATION OF CHURCHES. 
 
 WHILE any number of persons may form 
 themselves into an organization for the 
 purpose of conducting their public relig- 
 ious services in conformity to the Liturgy of the Prot- 
 estant Episcopal Church, and, by further conforming to 
 the rules and regulations of the Ecclesiastical authority 
 thereof, become component parts of that Church, and 
 entitled to certain Ecclesiastical rights and privileges, 
 they do not thereby become a corporate body, entitled 
 to corporate powers. In order to secure the benefits, 
 rights and powers of a corporate body, the Ecclesias- 
 tical organization must become incorporated, under 
 the provisions of some special law, or, as is usually the 
 case, some general law relating to the incorporation 
 of religious societies. 
 
 The purpose of incorporation has been well stated by 
 Chancellor Kent : " It was chiefly for the purpose of 
 clothing bodies of men in succession with the qualities 
 and capacities of one single, artificial, and fictitious 
 being that corporations were originally invented, and, 
 for the same convenient purpose, they have been 
 brought largely into use. By means of the corpora- 
 tion, many individuals are capable of acting in perpet- 
 ual succession like one single individual, without incur- 
 ring any personal hazard or responsibility, or exposing 
 any other property than what belongs to the corporation 
 in its legal capacity." — (2 Kent's Coin., i^thEd., 268.) 
 
n8 LA W OF THE CHURCH. 
 
 The benefits of incorporation are so manifest as to 
 call for no extended consideration. They may be 
 stated, in part, as follows : First, convenience in the 
 management of the interests of the Parish, and the 
 carrying on of its work ; second, the protection of the 
 property of individual members of the Parish from any 
 liability for Parish indebtedness ; third, " the light of 
 the Statute Law which clearly defines and regulates 
 the duty of the corporate body." 
 
 With but few exceptions, the different States have 
 made provision, more or less full, in their Statute Law 
 for the incorporation of religious societies. It is un- 
 necessary to give in detail the Statute Law of each 
 separate State on the incorporation of Churches. A 
 statement of certain general principles that will be 
 found to prevail in most of the States will be sufficient. 
 
 The Statute Law of several of the States requires, as 
 a prerequisite to incorporation, that a congregation 
 desiring to become incorporated shall first have be- 
 come duly organized according to the Constitution and 
 Canons, or usages, of the Protestant Episcopal Church, 
 in that Diocese in which such congregation may be 
 situated, while other States require no previous Eccles- 
 iastical organization. 
 
 Provision for the Ecclesiastical organization of a 
 Parish is made by the Constitution and Canons of the 
 Church, in most of the Dioceses. 
 
 The first step is usually, and always should be, to 
 notify the Bishop, or if there be no Bishop, then the 
 Standing Committee, or its President, according to 
 the law of the Diocese, setting forth such facts as may 
 be required by the Canons of the Diocese. 
 
 As all jurisdiction rests in the Bishop, until he dele- 
 
INCORPORATION OF CHURCHES. 119 
 
 gates it otherwise, his consent is necessary, unless dis- 
 pensed with by Statute or Canon, to the organiza- 
 tion of a Parish. His consent, and (when made neces- 
 sary), the consent of the Standing Committee being 
 obtained, the Parish may proceed to complete its 
 Ecclesiastical organization, conformably to the require- 
 ments of the Constitution and Canons of the Diocese. 
 In Maryland the consent of the Convention is required. 
 
 In some Dioceses the Parish is required to adopt 
 Articles of Association or Agreement, or a Constitu- 
 tion, as a preliminary step to its recognition by the 
 Ecclesiastical authority as a part of the Church in the 
 Diocese. 
 
 The mode of procedure for the incorporation of a 
 Church is far from uniform, in fact, is hardly the same 
 in any two States. 
 
 In most of the States, there is a general law for the 
 incorporation of religious societies ; special provision 
 being sometimes made for the incorporation of Protes- 
 tant Episcopal Churches. In a few of the States there 
 is a special act for the incorporation of Protestant 
 Episcopal Churches, as in Michigan and Maryland. 
 
 In other States, as in Connecticut, the law simply rec- 
 ognizes the Ecclesiastical organization and gives to the 
 Wardens and Vestrymen the legal standing of Trus- 
 tees, empowering them to receive, hold and dispose of 
 property for the maintaining of religious worship ac- 
 cording to the tenets of the Church, provided they 
 have been so authorized to act by the Parish. 
 
 In a few States no provision is made for the incor- 
 poration of religious societies, and resort must be 
 had to the Statute made for the incorporation of other 
 societies or associations. 
 
i bo LA W OF THE CHURCH. 
 
 (For forms of petition, and consent of Bishop and 
 Standing Committee, see Appendix A.) 
 
 NOTICE. 
 
 Whenever a congregation or any number of persons 
 desire to form themselves into a body corporate, public 
 notice of such intention must be given in the manner 
 prescribed by the Statute. 
 
 In some States a written notice is required. In 
 Delaware, for instance, the law requires the " publishing 
 a notice for ten days previous to the time of such meet- 
 ing in some newspaper published in the city or town- 
 ship in which such church is located : and if no news- 
 paper is published therein, then such notice may be 
 given by posting the same in three of the most public 
 places in such city or township." 
 
 In New Jersey a written notice, designating the 
 day when, and the place where, the meeting is to be 
 held, must be read during public service on two suc- 
 cessive Sundays preceding the day of meeting. 
 
 In New York the law requires the notice to be made 
 public at least two weeks prior to the meeting, either 
 by the "reading of such notice in time of divine service, 
 at the usual place of worship of such parish or congre- 
 gation, or by posting the same conspicuously on the 
 outer door of such place of worship." 
 
 In those States where the Statute Law prescribes 
 the requirements of the notice, such requirements 
 should of course be explicitly complied with ; and in 
 States where the requirements are not set forth in the 
 Statute, nor the manner in which it shall be given, it 
 will probably be sufficient if the notice state the ob- 
 ject, the place, and the time of meeting. Notice of 
 
INCORPORA r/O.V OF CHURCHES. 121 
 
 the meeting should be given either by reading it in 
 time of divine service, or by posting it on or near the 
 door of the usual place of worship, or if there be no 
 such place of worship, then in some conspicuous place 
 near to the proposed place of meeting. When the 
 Statute Law requires the notice to be read " in time 
 of divine service," it will not be a sufficient compli- 
 ance with the law to read it at a service held at an un- 
 usual hour on Sunday. — {Dahlv. Palache, 68 Cal., 248.) 
 
 The hour for the meeting should be one that is sea- 
 sonable and convenient during either the day or the 
 early evening. 
 
 While the meeting may adjourn to another hour or 
 day, it must meet at or near the hour designated. A 
 meeting held a few minutes, or within an hour after the 
 time appointed, would probably be a valid meeting, 
 but no meeting would be legal if held before the hour 
 appointed. — {People v. The Albany and Sus. R. R. Co. et 
 al., 55 Barb., 344.) 
 
 PLACE OF MEETING. 
 
 The place of meeting should be at or near the usual 
 place of worship of the congregation desiring to be- 
 come incorporated ; but if, as might well be the case 
 in some of the States, the persons so desiring had 
 theretofore held no public religious service, any con- 
 venient place in the town where they or a majority 
 of them resided would be sufficient. 
 
 THE MEETING. 
 
 First. The Quorum. The Statutes of most of the 
 States prescribe the number of persons necessary to 
 be present in order to constitute a quorum for the 
 transaction of the business of the meeting. Unless the 
 
123 LAW OF THE CHURCH. 
 
 number so required be present, no valid meeting can 
 be held. " But it would be competent for a less num- 
 ber to adjourn the meeting to such time during the day 
 or evening as might be necessary to secure a sufficient 
 attendance." — {Humphrey s "Law of the Church" p. 6.) 
 
 Most of the Dioceses in those States whose laws are 
 silent regarding the number required to make a quorum 
 for the incorporation of a Church or Parish, prescribe 
 by Canon the number necessary for a quorum at such 
 meeting. In all cases where the Statute Law is silent, 
 the Diocesan Legislation governs, and its require- 
 ments must be complied with. 
 
 Second. The Officers of the Meeting. A quorum 
 being present, the first step toward organization is the 
 election or appointment of officers of the meeting. A 
 President or Chairman, and a Secretary or Clerk are 
 the necessary officers. In some States and Dioceses, 
 judges of election must also be appointed. If there be 
 a Rector, he presides virtute officii. In most of the 
 States and Dioceses the law provides that if there be 
 no Rector, then one of the Wardens shall preside ; and 
 in some States and Dioceses provision is made that in 
 the absence of a Rector and Wardens, a Vestryman 
 shall be chosen to preside. This of course, presup- 
 poses an Ecclesiastical organization, with Rector, 
 Wardens and Vestrymen, already existing, but where 
 no such organization previously exists, then the meet- 
 ing must first proceed to choose some one of its mem- 
 bers to preside. After the meeting is called to order, 
 a Secretary or Clerk should be chosen or appointed 
 to make a record of the proceedings of the meeting, 
 unless the law provides, as in some cases, that the 
 Secretary or Clerk of the Vestry shall so act. 
 
INCORPORA TION OF CHURCHES. 1*3 
 
 THE SCOPE OF THE MEETING. 
 
 This will depend on the Statutes of the State, or the 
 Canons of the Diocese, or both. In many of the 
 States, the Statute explicitly sets forth what shall be 
 done at the meeting ; in others, the Statute simply 
 provides that a meeting shall be held, and Articles of 
 Association or Agreement, or a Charter in conformity 
 with the requirements of the Statute or the Canons of 
 the Diocese be signed, or signed and acknowledged by 
 the members of the meeting, or acknowledged by the 
 officers thereof, and filed with a designated officer. In 
 Massachusetts and a few other States no Certificate, 
 or Charter, or Articles of Association are required to be 
 filed ; the Massachusetts Statute, after giving explicit 
 directions as to how the meeting shall be warned, and 
 organized, and stating that any ten or more persons, 
 male or female, may apply to a Justice of the Peace 
 for a warrant directing that a meeting be called, sim- 
 ply declares that such persons upon complying with 
 the Statute shall become a corporation under any 
 name they may assume at the meeting, with all the 
 rights, privileges, etc., relating to religious societies. 
 In Arkansas the Statute Law merely declares that 
 trustees of religious societies shall have certain rights 
 and powers. 
 
 It would be a work of unnecessary labor to give in 
 detail the various requirements of the Statute and 
 Canon Law in the several States and Dioceses relative 
 to the questions to be decided at the meeting. The 
 law should be ciosely followed and its requirements 
 strictly complied with. 
 
 It may be stated, as a general rule, that the persons 
 
124 LAW OF THE CHURCH. 
 
 present at the meeting, in the absence of any law to 
 
 the contrary, may determine : 
 
 First. Whether they shall become incorporated or not. 
 If this question be decided in the affirmative, then, 
 
 Second. The name by which the proposed corpora- 
 tion shall be known. 
 
 Third. The date on which the annual election of 
 Wardens and Vestrymen shall take place. 
 
 Fourth. What number of Vestrymen shall be annually 
 elected. (The minimum and maximum number 
 is fixed by law in most cases.) 
 
 Fifth. The qualified voters present should then elect 
 two Wardens and the number of Vestrymen be- 
 fore agreed upon, to serve until the next annual 
 election, or until their successors are duly elected. 
 In the absence of any law requiring decision to be 
 made by ballot, the different questions may be de- 
 cided by a viva voce vote. 
 
 WHO MAV VOTE. 
 
 The qualifications of voters are prescribed either by 
 the Statute Law of the State or by the Canons of the 
 Diocese. In some States, as in New York, the Statute 
 Law prescribes the qualifications of voters; in others, 
 as in New Jersey, the law simply says that the qualifi- 
 cations of voters shall be conformable to the Constitu- 
 tion and principles of the Protestant Episcopal Church 
 in the State; and in still other States, as in Kansas 
 and Arkansas, the Statute Law is silent on the ques- 
 tion of qualifications of voters. Where such is the case, 
 the Church may and should prescribe such qualifica- 
 tions. 
 
 Only such persons as possess the qualifications re- 
 
INCORPORA TION OF CHURCHES. 125 
 
 quired by the law of the State or of the Diocese have 
 a right to vote, and it is the duty of the presiding 
 officer, or such other officer or officers as may be desig- 
 nated by law for that purpose, to reject illegal votes 
 when challenged. The Courts have decided, however, 
 that the reception of illegal votes, if shown to be insuf- 
 ficient to change the result, will not necessarily invali- 
 date the action of the corporators. — {People et al. v. 
 Tut hill et al., 31 N. Y., 550.) 
 
 As this question of qualifications of voters will be 
 more carefully considered under this same head in the 
 next chapter relating to annual elections, a further 
 consideration thereof at this point is unnecessary. 
 
 CONDUCT OF ELECTION, AND QUALIFICATIONS OF 
 OFFICERS. 
 
 First. Conduct of Election. The election must be 
 held at the time stated in the notice, unless a legal 
 adjournment is had. Any material deviation from the 
 hour named therein will be fatal to the validity of the 
 election. 
 
 While, in the absence of any law requiring the elec- 
 tion to be by ballot, an election by a viva voce vote 
 would be legal, it is much the better course to elect 
 Wardens and Vestrymen by ballot, that course having 
 received the sanction of a long and almost universal 
 custom. 
 
 If the law does not provide otherwise, the Rector, 
 who, when present, presides ex-officio, should appoint 
 tellers to collect and count the votes. In New York 
 and several other States the law prescribes that the 
 polls shall be kept open for one hour, or longer in the 
 
126 LA W OF THE CHURCH. 
 
 discretion of the presiding officer, or if the majority of 
 the voters present so desire. 
 
 In the absence of any such provision of the Statute 
 or Canon Law, the voters themselves may determine 
 the length of time that the polls shall remain open ; if 
 no time is so determined upon, the polls should be kept 
 open a reasonable length of time, sufficient at least to 
 give to all qualified voters present due opportunity to 
 cast their ballots. The polls being closed and the 
 tellers having counted the votes, the presiding officer 
 declares the result, or causes it to be declared under 
 his direction. 
 
 Second. Qualifications of Wardens and Vestrymen. 
 These qualifications are in nearly every case prescribed 
 by the Statute or Canon Law, and will be more par- 
 ticularly noted under this same head in the succeeding 
 chapter. The requirement is almost universal that 
 Wardens, at least, should be communicants. It may 
 also be stated that, in the absence of any express pro- 
 vision of law, only a qualified voter is eligible to the 
 office of "Warden or Vestryman. 
 
 CERTIFICATE. 
 
 In a majority of the States the law requires that a 
 Certificate of the proceedings of the meeting, as it is 
 called in New Jersey, or Certificate of Incorporation, 
 as it is called in New York, be filed with some desig- 
 nated civil officer. 
 
 The New York Statute may be cited as containing 
 the maximum of requirements. It directs the setting 
 forth of the following facts: 
 
 First. The fact of the calling and holding of such 
 meeting. 
 
INCORPORA TION OF CHURCHES. 127 
 
 Second. The name of the corporation as decided upon 
 
 thereat. 
 Third. The county, and the town, city or village, in 
 which its principal place of worship is, or is in- 
 tended to be located. 
 Fourth. The day of the week commencing with the 
 first Sunday in Advent, upon which the annual 
 elections of the corporation shall be held. 
 Fifth. The number of Vestrymen decided upon at such 
 
 meeting. 
 Sixth. The names of the Vestrymen elected at such 
 
 meeting and the term of office of each. 
 Seventh. The names of the Church Wardens elected 
 at such meeting and the term of office of each. — 
 {Laws of 1909 [N. K], Ch. 51, Art. III., § 41.) 
 This Certificate must be duly executed and acknow- 
 ledged by the presiding officer, and also by two persons 
 present and voting at the meeting, and filed in the 
 office of the Clerk of the County therein specified. 
 
 In Minnesota the law requires the name of the Rec- 
 tor, if any, and the date of the organization of the Par- 
 ish to be stated. 
 
 In some States, as in Kansas, the law directs a Char- 
 ter duly signed and acknowledged by five or more 
 persons, to be filed in the office of the Secretary of 
 State, setting forth the facts by law required. In 
 Michigan and a few other States Articles of Agreement 
 must be properly executed and acknowledged, and 
 then recorded in the office of the Clerk of the County 
 in which the Church is located. In some States, as in 
 Massachusetts, Connecticut, and Arkansas, no Certifi- 
 cate is required to be filed. 
 
 In Florida a proposed Charter, setting forth certain 
 
128 LA W OF THE CHURCH. 
 
 facts, must be presented to the Judge of the Circuit 
 Court of the County in which the organization is sit- 
 uated, subscribed by the intended corporators and 
 properly acknowledged. 
 
 In Georgia the law directs that in case one or more 
 proper persons present a petition to the Superior Court, 
 showing that a Church has been or is about to be 
 established in the County where the Court is then sit- 
 ting and praying for certain corporate powers, the 
 Court may grant such corporate powers for a term of 
 twenty years, unless sooner revoked by law. Power 
 is also given to the Court to amend the Charter. 
 
 In California the Charter must state the number of 
 years, not exceeding fifty, for which it is to exist. 
 
 In Illinois the law directs the chairman of the 
 meeting to make an affidavit of the proceedings of the 
 meeting, and file the same in the office of the Recorder 
 of Deeds. 
 
 In the State of Pennsylvania a Charter setting forth 
 certain facts, as prescribed by law, and duly acknow- 
 ledged by at least three of the subscribers thereto, with 
 proof of the publication of the notice, as required by 
 law, must be presented to the Judge of the proper 
 County for his approval, and when so approved, it must 
 then be recorded in the office for the recording of 
 deeds in the said County. 
 
 In those States where the law requires the filing of 
 a Certificate, Charter, or Articles of Association or 
 Agreement, it designates the proper officer with whom 
 such Certificate, Charter, or Articles shall be filed. 
 
 The Certificate or Charter should be carefully drawn, 
 containing a concise but complete recital of the pro- 
 ceedings of the meeting, together with the fact that 
 
INCORPORA TJON OF CHURCHES. 129 
 
 the required notice was duly given, and that all the 
 requirements of the law have been complied with. 
 
 It need hardly be added that even where the law 
 does not require a Certificate to be made, the Clerk or 
 Secretary of the meeting should make a complete rec- 
 ord of the proceedings of the meeting and tran- 
 scribe them in the record book of the Parish, which 
 record, when so transcribed, should be signed by both 
 the presiding officer and the Secretary of the meeting. 
 
 TERMS OF OFFICERS ELECTED. 
 
 The terms of office of the Wardens and Vestrymen 
 elected at this meeting continue until the first annual 
 election on the day designated in the Certificate or 
 Charter. 
 
 Provision is made, in a majority of the Dioceses, for 
 the continuation in office of the Wardens and Vestry- 
 men until their successors are elected. And even where 
 no such provision is made, in case of failure to elect 
 such officers at an annual election, the Wardens and 
 Vestrymen previously elected would still continue in 
 office and so remain until their successors were legally 
 elected. " It is a well-settled principle that an annual 
 officer continues until superseded by the appointment 
 of another in his place." — {McCall v. The Byram Mfg. 
 Co., 6 Conn., 428. See also 9 Conn., 536; 6 Johnson 
 Rep., 158; ^Johnson Ch. Rep., 366.) 
 
 WHEN INCORPORATION COMPLETE. 
 
 Until the Certificate, Charter, or Articles of Associa- 
 tion or Agreement have been duly filed, unless no such 
 filing is required by law, the Church can exercise none 
 of the rights or privileges of a corporate body. The 
 
i 3 o LA W OF THE CHURCH. 
 
 incorporation of the Church is not complete until the 
 Certificate, Charter, or Articles are duly filed with the 
 officer designated by law for that purpose. It is 
 upon the due filing of such Certificate, etc., with the 
 proper officer, when the law so requires, that the Rec- 
 tor (if there be one), Wardens and Vestrymen become 
 a body corporate, by the name expressed in such Cer- 
 tificate, Charter, or Articles of Association or Agree- 
 ment. 
 
CHAPTER II. 
 
 OF ANNUAL PARISH MEETINGS. 
 
 PROVISION is made by Statute or Canon in 
 every State or Diocese for an annual meeting of 
 the qualified voters of an incorporated Parish. 
 The date and the hour of this meeting are fixed by 
 the Statute Law, or by the Charter, or other Article 
 of Incorporation, or by the Canons of the Diocese, or 
 by the Parish itself, and the meeting must be held on 
 the day and at the hour so determined upon. 
 
 A meeting held upon a different day from the one 
 fixed by law, or duly determined upon beforehand, 
 would be illegal, and its proceedings null and void. — 
 {First Church, etc., v. Hillery 51, Cal. 155.) 
 
 NOTICE. 
 
 Due notice of the annual meeting must be given, 
 according to the requirements of the Statute Law and 
 the Canons of the Diocese. In the Diocese of Texas 
 no notice seems to be required, unless the annual 
 meeting is on some other day than Easter Monday. 
 The notice should state the day and hour when, the 
 place where, the meeting is to be held, and the purpose 
 of the meeting. 
 
 Every subject that is intended to be acted upon at 
 the meeting should be clearly specified in the notice. 
 The Diocese of Connecticut is an exception to this 
 general rule; the Canon only requiring that "the 
 warnings of all Parish meetings, except the annual 
 
1 32 LA W OF THE CHURCH. 
 
 meeting, shall contain a statement of the objects for 
 which the meeting is called." 
 
 The manner of giving the required notice varies in 
 the several Dioceses. Some require that it shall be 
 read by the Rector, or officiating Minister, or, if there 
 be no Rector or officiating Minister, by a Warden, on 
 the two Sundays immediately preceding such meeting, 
 in time of divine service ; in a few Dioceses it is made 
 sufficient if the notice be so read on the Sunday prior 
 to the meeting. In some, it is required that the notice 
 be so read, or conspicuously posted on the outer door 
 of the Church, or usual place of worship, a certain 
 length of time, usually ten days or two weeks, before 
 the meeting ; others require the notice to be both so 
 read and so posted, while still others simply require 
 that due notice be given. 
 
 The object of the notice is that the legal voters of 
 the Parish may be fully apprised of the meeting, and 
 what business is purposed thereat, in order that they 
 may attend and exercise their rights. If the Statute or 
 Canon Law gives the requirements of the notice, those 
 requirements should be carefully complied with. (For 
 forms of notice, see Appendix B.) 
 
 PURPOSE OF MEETING. 
 
 The chief purpose of the meeting is usually the elec- 
 tion of Wardens and Vestrymen, to succeed those 
 whose terms of office then expire, and election of 
 delegates to the Diocesan Convention, unless the law 
 provides that such delegates shall be elected by the 
 Vestry. In some Dioceses, as in the Diocese of Chi- 
 cago, a statement of the financial condition of the Parish 
 is required to be read at every annual meeting thereof. 
 
ANNUAL PARISH MEETINGS. 133 
 
 Questions concerning the alienation or encumbrance 
 of real Church property, change of the name or title of 
 the corporation, change in the number of Vestrymen, 
 change in the date of the annual meeting, or any other 
 question concerning which the law requires the con- 
 sent of the Parish, and only in case the law does so 
 require, may be considered at such annual meeting, 
 provided the notice thereof gives due warning that 
 such question or questions will be presented to the 
 voters of the Parish at said meeting for their consider- 
 ation and approval. But a Parish meeting has no 
 voice in or control over those questions which the 
 law leaves to the final determination of a legally con- 
 stituted Vestry. 
 
 It may be stated as a general rule, that in most 
 cases the legal action of an annual Parish meeting will 
 be confined to the election of two Wardens and the 
 legal number of Vestrymen, or, in some Dioceses, the 
 election of Vestrymen alone, and, where so provided, 
 of delegates to the Diocesan Convention. In a few 
 Dioceses, as, for instance, those in the State of New 
 York, the law directs that only one Warden and one- 
 third of the whole number of Vestrymen shall be 
 elected each year. 
 
 In some States the law provides that the Vestry shall 
 elect the Wardens from among their own number ; in 
 others the Rector has the right to appoint one War- 
 den, and the Parish or Vestry, as the law may pro- 
 vide, elects the other Warden. 
 
 The meeting must be held at the place designated in 
 the notice, and this in most of the Dioceses must be 
 the Church or usual place of worship of the Parish. 
 The consensus of opinion seems to be, that a meeting 
 
134 LA W OF THE CHURCH. 
 
 held in a Parish House connected with or closely ad- 
 joining the Church edifice, would probably be a suffi- 
 cient compliance with the law, provided such Parish 
 House was designated in the notice as the place of 
 meeting. 
 
 QUORUM. 
 
 In the absence of any Law or Canon designating 
 the number of legal voters necessary to be present at 
 any annual meeting of a Parish in order to constitute 
 a quorum, those who may be present at such meeting 
 constitute a quorum for the transaction of its busi- 
 ness. The rule is well stated in Madison Avenue Bap- 
 tist Church v. Baptist Church, etc. (32 How. Pr. \_N. K], 
 335) ' " Where the corporators are indefinite, . . . 
 then such of them as assemble pursuant to regular call 
 will constitute a quorum for the transaction of busi- 
 ness, and a majority of said quorum can pass a resolu- 
 tion." A few of the Dioceses make provision for a 
 quorum at the annual Parish meeting. 
 
 The Canons of the Diocese of Chicago provide that 
 three legal voters shall constitute a quorum at all 
 duly called Parish meetings ; while those of Ohio pro- 
 vide that if less than eighteen qualified voters be 
 present at a Parish meeting, and the Rector and one 
 Warden, or the presiding officer and one-sixth of those 
 present, concur in believing that the best interests of 
 ihe Parish demand the postponement of the election, 
 then the presiding officer may declare an adjournment 
 of the meeting, and a postponement of the election to 
 some designated day and hour not less than seven nor 
 more than fourteen days after Easter Monday, and that 
 public notice be given of the said adjourned meeting. 
 
ANNUAL PARISH MEETINGS. 135 
 
 PRESIDING OFFICER OF MEETING. 
 
 The Rector, when present, presides ex-officio at all 
 meetings of the Parish. It is a right inherent in his 
 office, and of which he can be deprived only by ex- 
 press legislation, civil or canonical. The corporation 
 cannot take away this right of the Rector to preside at 
 its meetings. 
 
 This right of the Rector to preside at all meetings 
 of the Parish has been questioned in the State of 
 Delaware. 
 
 In the case of State ex rel. Danlap v. Stewart ct 
 al. (6 Houst. Rep., 359), the Court, in its instructions to 
 the jury in the trial of the case intimated that, while 
 the Rector of a Church was ex-officio chairman at all 
 Vestry meetings when present, he was not neces- 
 sarily, under the Constitution and Canons of Dela- 
 ware, which were silent on the subject, chairman at 
 the annual meetings of the parishioners held for the 
 election of Wardens and Vestrymen, as such elec- 
 tions were merely temporal matters, and under the 
 complete control of the parishioners themselves. 
 
 It appears from the statement of the case that a 
 dissension having arisen between the Vestry of a Par- 
 ish and its Rector, a Rev. Mr. Stewart, an application 
 had been made by the Parish to the Bishop of the Dio- 
 cese, asking him to terminate the relation between the 
 Parish and its Rector ; that the Bishop, after consulta- 
 tion with the Standing Committee of the Diocese, and 
 with their concurrence as provided by the Canons of 
 the Diocese, duly notified the said Stewart that his 
 relations to the Church as its Rector would cease at 
 midnight on the following Easter Day (April 17, 
 
136 LA IV OF THE CHURCH. 
 
 1881). The election in question was held on the fol- 
 lowing Monday (April 18). 
 
 The meeting was called to order by the Secretary 
 of the Vestry, and a chairman elected ; but the former 
 Rector prevented the chairman from taking his seat, 
 and abruptly took the chair himself, and called on the 
 voters "to come up and vote quick."' In the confu- 
 sion that followed, no record was made of the voters, 
 nor any motion made or carried that the former Rec- 
 tor should act as chairman of the meeting. Two sets 
 of Wardens and Vestrymen were elected, one set by 
 the adherents of the former Rector, and the other by 
 his opponents ; and the question that came before the 
 Court was as to which set were entitled to the offices 
 of Wardens and Vestrymen of the Parish. The rec- 
 torship of Stewart having terminated by the lawful 
 authority of the Bishop at midnight of the day before, 
 he was therefore not the Rector of the Parish at the 
 time of the meeting, and had no right to preside 
 thereat. The question whether a Rector had the 
 right, virtute officii, to preside at a Parish meeting was 
 not therefore before the Court, and its opinion regard- 
 ing the right of a Rector to so preside was simply an 
 obiter dictum, and unnecessary to the determination of 
 the case at issue. 
 
 The point was not argued before the Court, and no 
 authorities presented to sustain the right of a Rector 
 to preside at a meeting of the Parish. 
 
 The mere obiter dictum of a Judge on a question not 
 before him, nor argued by counsel, and in all proba- 
 bility made without any examination of the authorities 
 on the question, can hardly be considered as sufficient 
 to change the well-settled rule of law on the subject, 
 
ANNUAL PARISH MEETINGS. 137 
 
 nor to reverse the uniform decisions of the Courts es- 
 tablishing the Rector's right to preside at all meetings 
 of the Parish. 
 
 In Queen v. D'Oyly (4 Perry & Davidsons Rep., 52), 
 it was decided, " The Rector has a common law right 
 and authority to preside at such election [election of 
 Church Wardens], as being the functionary who is at 
 the head of the Parish for Ecclesiastical purposes." 
 
 In Wilson v. M'Math (3 Phill. Rep., 67), it was de- 
 cided, " In these meetings then of the Parish, consist- 
 ing of ' Minister, Church Wardens and parishioners,' 
 assembled in the Church for an Ecclesiastical purpose, 
 that the Rector parochice should not preside, but be 
 considered as a mere individual, would be most 
 strangely incongruous. On sound legal principles he 
 is the head and presses of the meeting." 
 
 Sir Robert Phillimore, in his learned work on Ec- 
 clesiastical Law {id Ed i p. 1497), says: "The right 
 of the Minister (be he Rector, Vicar, or perpetual Cur- 
 ate) to preside at a meeting of his parishioners seems 
 to have been unquestioned law since the learned de- 
 cision of Sir J. Nicholl in Wilson v. M'Math" — (See 
 also Baker v. Wood, I Curteis, 507; Blunfs " Book of 
 Church Lazv," p. 300.) 
 
 This right of the Rector to preside at all meetings 
 of the Parish is recognized in the Statutes of some of 
 the States, and in the Canons of most of the Dioceses, 
 and will not, I think, be seriously questioned even in 
 those Dioceses where that right is not distinctly af- 
 firmed by the Statute, or Canon Law. 
 
 The Canon or Statute Law in nearly all the Dio- 
 ceses provides that in case there be no Rector, or if he 
 be absent, then one of the Wardens shall preside. In 
 
138 LA W OF THE CHURCH. 
 
 case both Wardens be present, and the law does not 
 designate which one shall preside, the one called to 
 the chair by a majority of the voices shall be the pre- 
 siding officer of the meeting. In case no Warden be 
 present, a Vestryman, or, in some Dioceses, a parish- 
 ioner (presumably a legal voter), chosen by the meet- 
 ing, shall preside. In some Dioceses the law directs 
 that judges of the election shall be appointed. In 
 Texas the congregation may name its own election 
 managers, unless otherwise provided by parochial le- 
 gislation. In the Diocese of Pittsburgh the form of 
 by-laws recommended by the Diocesan Convention for 
 adoption by the several Parishes provides that the 
 Rector, with the Wardens, shall constitute the judges 
 of election. In Montana, the presiding officer and 
 two tellers, appointed at the meeting, act as judges 
 of election, whose duty it is to decide all questions as 
 to the qualification of voters. In Virginia, the Canons 
 provide that the Vestry shall appoint three persons, of 
 whom not more than two members shall be of their 
 own body, to act as judges in conducting and superin- 
 tending the annual elections. But in those Dioceses 
 where the law makes no provision for the election or 
 appointment of judges of election, the presiding officer 
 has the right to appoint tellers to collect and count 
 the votes ; he also has a general supervision of the 
 election, and, in the absence of any law to the contrary, 
 decides all questions as to qualifications of voters ; it 
 is also his right to reject illegal votes when challenged. 
 It has been decided that the presiding officer cannot 
 on his own motion reject a vote. When a vote is of- 
 fered, it must be received, unless challenged ; the vote 
 having been received, the question is decided, and the 
 
ANNUAL PARISH MEETINGS. 139 
 
 tellers cannot disregard the vote on the ground that it 
 was illegal. — (Hartt v. Harvey, 32 Barb , 55; People 
 v. White, n Abb tt, Pr. Rep. [N. K], 168.) 
 
 Unless otherwise provided, the presiding officer is 
 also the returning officer, and enters the proceedings 
 of the meeting, or causes it to be entered, in the rec- 
 ord book of the Vestry. 
 
 The proceedings of the annual meeting, and of 
 every special meeting of the Parish, should be entered 
 on the records of the Vestry or in some other book 
 provided for the purpose, even when not so required 
 by law, in order that a record thereof may be pre- 
 served for future reference. 
 
 QUALIFICATIONS OF VOTERS. 
 
 The qualifications of voters at the annual Parish 
 meetings are, with few exceptions, regulated by the 
 Canons of the several Dioceses, and are so diverse as 
 to render it impossible to give any general rule gov- 
 erning the question. Reference must always be had 
 to the Canons of the Diocese, and in a few Dioceses to 
 the Statute Law; in a few others the matter is left, in 
 part, to the determination of the Parish itself. 
 
 In the five Dioceses in the State of New York, the 
 qualifications of voters are defined by the Statute Law. 
 In the State of Maryland, the " Vestry Act " also de- 
 fines the qualifications of those who may vote for Ves- 
 trymen. It would be a work of unnecessary labor, 
 without any corresponding advantage, to state in de- 
 tail the various requirements of the several Dioceses 
 necessary to constitute a legal voter in the Parishes 
 therein situated. A consideration of certain of the 
 
i 4 o LA W OF THE CHURCH. 
 
 qualifications required in a majority of the Dioceses 
 will be all that is necessary. In most of the Dioceses 
 it is required that voters shall be baptized males of full 
 age. A few Dioceses do not require that a person 
 shall have been baptized, only that he shall be a male 
 person of full age, while others require that the voter 
 shall not only have been baptized, but that he shall 
 also be a communicant. 
 
 In the Diocese of Lexington persons over the age 
 of eighteen years, possessing certain other qualifica- 
 tions, are legal voters under its Canons. In some 
 Dioceses, as in Maine, Indiana, and many of the West- 
 ern Dioceses, the franchise is granted to females as 
 well as to males, and in some cases the required age 
 for females is fixed at eighteen. 
 
 It is also required in the majority of the Dioceses, 
 that in order to become qualified to vote at a Parish 
 meeting, a person must have been a regular or habit- 
 ual attendant upon the public worship of the Church 
 in that Parish for a certain period of time, and a regu- 
 lar contributor to the support of that Church, also for 
 a definite period of time. 
 
 In disputed elections, there is usually more contro- 
 versy over these two requirements for a qualified voter 
 than any others, and they are, therefore, deserving of 
 more careful consideration. 
 
 What constitutes a regular or habitual attendant at 
 the public worship or services of the Church ? 
 
 The standard dictionaries define the word "regular" 
 as " steady or uniform in course, practice, or occur- 
 rence; not subject to unexplained or irrational varia- 
 tion; returning at stated intervals; orderly; methodi- 
 cal; periodical." 
 
ANNUAL PARISH MEETINGS. 141 
 
 "Habitual" is defined as " according to or consti- 
 tuting a habit; customary; usual; regular." 
 
 Hence, habitual or regular attendance obviously 
 means something more than an occasional or irregular 
 attendance. The very term habitual or regular is used 
 in the Statute or Canon expressly to characterize the 
 nature of the attendance necessary to render a person 
 possessing other required qualifications a qualified 
 voter. An habitual or regular attendant upon the 
 services of a Church is one who attends such services 
 habitually, regularly, whose custom it is to be present 
 at the said services; one who is more often present 
 than absent. 
 
 It is certain that one who seldom attends the pub- 
 lic worship of the Church, or who is irregular in such 
 attendance, or who is more often absent than present 
 at the public services of the Church, or at least at 
 some one of such services, if there be more than one 
 on a Sunday, cannot be called either an habitual or 
 regular attendant upon the public worship of the 
 Church, does not meet the plain and obvious require- 
 ments of the Statute or Canon, and is not a qualified 
 voter. 
 
 The question was thoroughly examined and the rule 
 well laid down by the Court in People et al. v. Tuthill 
 et al. (31 N. Y., 550). After discussing the question of 
 what is meant by a stated attendant, the Court says: 
 " The distinction between an attendant of that char- 
 acter, and one whose attendance is irregular and at un- 
 certain periods, or occasional only, is plain and well un- 
 derstood. Indeed, it is too plain and obvious to be aided 
 much by attempts at exact description or definition. 
 Regular attendance at the stated times for worship, as 
 
i 4 2 LA W OF THE CHURCH. 
 
 established in the Church, society, or congregation, as 
 distinguishable from irregular or occasional attendance, 
 is what is necessary. This attendance must be per- 
 sonal and cannot be supplied by another. The regu- 
 lar attendance of the wife, or other member of the fam- 
 ily, will not answer. And no amount of contribution to 
 the support of the Church or society can be accepted 
 in lieu of this personal presence statedly." 
 
 The Court also said: " It is unnecessary to deter- 
 mine in this case how often a person must attend at 
 the stated periods for worship in the course of the 
 year to be a stated attendant. It is enough to say 
 that persons who attend a {e\v times only in the course 
 of the year, as compared with the number of stated 
 times for worship within such year, and at irregular 
 and uncertain intervals, are clearly not stated attend- 
 ants." 
 
 This rule would not necessarily apply to those who 
 were prevented, by a long-continued sickness or an ex- 
 tended absence from the Parish, from attending the 
 services of the Church. The rule applicable in civil 
 elections would apply here, and depend on the inten- 
 tion of the person. If it was his intention to resume 
 attendance on the services of the Church when recov- 
 ered from his sickness, or on his return from his jour- 
 ney, his rights as a voter would doubtless remain un- 
 impaired; but if there was no such intention, then his 
 rights as a voter would be lost. Humphrey so states 
 it as his opinion in his "Lata of the Church" {p. 14). 
 
 The observations made concerning regular attend- 
 ants will also apply to regular contributors. To be a 
 regular contributor one must contribute, not occasion- 
 ally nor at irregular interv As, but regularly, habitually, 
 
ANNUAL PARISH MEETINGS. 143 
 
 and at stated intervals, and the contributions must be 
 made in such a manner that their regularity may be 
 determined upon by the proper officers of the Church. 
 The depositing of money in the offertory basins on 
 such Sundays as the person happened to be in Church 
 would not probably be a sufficient compliance with the 
 law requiring a regular contribution, unless the money 
 thus contributed was so deposited that the amount 
 and the name of the contributor could be afterwards 
 determined. It is not sufficient that the contribution 
 be promised or subscribed, it must be paid. A prom- 
 ise to contribute is clearly not a contribution until it 
 is paid. If one should rent a pew or sitting in a 
 Church, or subscribe a certain sum per week or month, 
 he must have paid the amount of that pew rent or 
 subscription then due and payable before the meeting, 
 in order to be qualified to vote as a regular contribu- 
 tor. The Canons of the Diocese of Newark thus de- 
 fine one who is not a regular contributor: " No one 
 shall be deemed a regular contributor . . . who is in 
 arrears in the payment of any portion of his contribu- 
 tion that may be due and payable on or before the first 
 day of that month in which said meeting is held." 
 
 In the case oi People, etc., v. Tuthill, etc., above cited, 
 the Court, in deciding in what manner a person must 
 contribute to the support of a Church in crder to 
 render him a qualified voter, thus states : " He must 
 contribute to its support according to the usages and 
 customs thereof. This undoubtedly means substantial 
 and vital aid and support. Personal attendance and 
 countenance might in one sense contribute to the sup- 
 port of such an organization. But that is not the con^ 
 tribution intended by this provision of the Statute. 
 
i 4 4 LA W OF THE CHURCH. 
 
 The Statute means the necessary material support, 
 without which the organization cannot exercise its or- 
 dinary functions and perform its customary and appro- 
 priate duties and ministrations. It means the parting 
 with, and contribution of, a portion of one's worldly sub- 
 stance in the usual and customary way, to be used in 
 meeting and defraying the expanses incurred by the 
 Church, congregation, or society in the support of pub- 
 lic and divine worship. Merely attending as a wor- 
 shipper, or taking a leading or a subordinate part in 
 the exercises, or rendering some special gratuitous 
 service, will not answer this requirement of the 
 Statute. . . . In this view contributions made, not 
 for the support and maintenance of the religious incor- 
 poration, but for the support or promotion of some 
 other object or enterprise in which the Church, con- 
 gregation, or society may be engaged, however valu- 
 able or praiseworthy, as Sunday-schools, missions and 
 the like, will not be sufficient." The Court also held 
 that one who acts as leader of a choir, or as sexton of 
 the Church, without compensation, even though such 
 service had been compensated for before, was not a 
 legal voter, not having contributed to the support of 
 the Church for the previous year according to any 
 usage or custom thereof. 
 
 The contribution must also have been made for the 
 full length of time required by the law. If, for in- 
 stance, it is required that one must be a regular con- 
 tributor for one year previous to the election, the fact 
 that one had been a regular contributor for eleven 
 months would not be sufficient to meet the require- 
 ments of the law. 
 
 It is manifestly the plain intention of the law in 
 
ANNUAL PARISH MEETINGS. 145 
 
 prescribing certain qualifications for those who shall be 
 allowed to choose the officers of the Church, to secure 
 the government and control of the Church's temporal- 
 ities to such of its adherents and supporters as shall 
 manifest their attachment thereto, and interest in its 
 material welfare, by their habitual attendance at its 
 public services, and their habitual contributions to 
 its support. For, as the Court remarked in the case 
 above cited, it is plain that upon no other principle or 
 policy could the Church, depending as it does upon 
 mere voluntary contributions for its maintenance and 
 support, be permanently kept up, its existence contin- 
 ued, and its usefulness maintained. 
 
 QUALIFICATIONS OF WARDENS AND VESTRYMEN. 
 
 First. The Qualifications of Wardens. Only commu- 
 nicants should ever be chosen as Wardens of a Church. 
 Happily, in most of the States and Dioceses it is re- 
 quired by Statute or Canon that a person must be a 
 communicant of the Church to render him eligible for 
 the office of Warden, and it is to be hoped that the 
 very few Dioceses that do not so require will soon 
 amend their Canon Law, or secure the amendment of 
 the Statute Law, if that be necessary, so that it shall 
 be an universal requirement in every Diocese that to 
 be a Church Warden a man must be a communicant. 
 Certainly the Church never intended that her Wardens 
 should not be of her communicating members. Even 
 if the law of the State or of the Diocese does not re- 
 quire the Wardens to be communicants, yet true 
 Churchmen in every Parish should see to it that only 
 communicants are elected as Wardens of the Church. 
 
 While in most of the Dioceses the qualified voters 
 
146 LA W OF THE CHURCH. 
 
 of the Parish elect the Wardens at the annual Parish 
 meeting', in several Dioceses the law provides that 
 the Rector shall appoint a member of the Vestry as 
 Senior Warden, and the Vestry elect one of their num- 
 ber as Junior Warden. In the Dioceses of North and 
 East Carolina the Rector nominates the Senior Warden, 
 and the Vestry elect both Wardens from among - their 
 own number. In a few Dioceses, as in the Virginia 
 and Kentucky Dioceses, the Vestry elect both Wardens 
 from their own body. 
 
 Second. Qualifications of Vestrymen. While the qual- 
 ifications requisite in the different Dioceses for the 
 office of Vestrymen are as variant as are the quali- 
 fications for voters, it may be stated as a general rule 
 that only a qualified voter is eligible for the office of 
 Vestryman. — (Willcock on Corp , Part I., sec. 480.) 
 
 In most of the Dioceses the only required qualifica- 
 tion is that he shall be a male voter. In New York 
 State the law requires that a Vestryman must be a 
 qualified voter and have been baptized. In Vermont 
 it is required that he shall be a communicant, while in 
 the Diocese of Massachusetts the Canon merely says 
 that he shall be a baptized man. 
 
 In a few Dioceses the Canon directs that only com- 
 municants shall be chosen as Vestrymen, provided 
 there be a sufficient number of male communicants in 
 the Parish. 
 
 While but comparatively few Dioceses as yet require 
 that Vestrymen shall be communicants, it is the grow- 
 ing mind of the Church that all her officers should 
 be chosen from among her communicating members; 
 certainly, in those Parishes where there are a sufficient 
 number of well-qualified male communicants, only to 
 
ANNUAL PARISH MEETINGS. 147 
 
 those who have evidenced their loyalty and attach- 
 ment to her doctrine, discipline and worship, and their 
 obedience to her lawful authority by being confirmed, 
 should be permitted the government and control of 
 her temporalities. 
 
 In Maryland, the "Vestry Act" provides that Ves- 
 trymen shall take and subscribe an oath of support, 
 fidelity and faithful performance of the office. The 
 provision of the Act is as follows : 
 
 " VI. And be it enacted, That every person chosen as 
 a Vestryman shall, before he acts as such, take and 
 subscribe the oath of support and fidelity required by 
 the Constitution and form of government, unless such 
 person hath before taken such oath, and also make 
 and subscribe a declaration of his belief in the Chris- 
 tian religion, and he shall also take and subscribe the 
 following oath of office, to wit : ' I, A. B., do solemnly 
 swear that I will faithfully execute the office of a Ves- 
 tryman of Parish, in County, without 
 
 prejudice, favor, or affection, according to the best of 
 my skill and knowledge ' ; which oaths and declara- 
 tions any Justice of the Peace, or any Vestryman pres- 
 ent may administer and take." 
 
 This oath, which usually is placed at the head of the 
 Parish Register, each Vestryman is required to sign on 
 his election. 
 
 In the Virginia Dioceses every person chosen a Ves- 
 tryman is required, before he can act as such, to sub- 
 scribe the following declaration and promise : " I do 
 believe the Holy Scriptures of the Old and New Testa- 
 ment to be the Word of God, and to contain all things 
 necessary to salvation ; and 1 do yield my hearty as- 
 sent and approbation to the doctrines, worship and 
 
148 LA W OF THE CHURCH. 
 
 discipline of the Protestant Episcopal Church in these 
 United States ; and I promise that I will faithfully ex- 
 ecute the office of Vestryman of Parish (or 
 
 Church), in County, according to my best know- 
 ledge and skill." 
 
 Unless the law expressly provides otherwise, a 
 majority of all the votes cast is necessary for an elec- 
 tion. A mere plurality, if it be not such a majority, is 
 insufficient, and fails to elect to the office of Warden 
 or Vestryman. — [Angel & Ames on Corp., see. 127; 
 Morawetz on Corp., sec. 354; People v. Phillips, I Dem. 
 \N. Y.], 388; People v. Devin, 17 ///., 84, 17, A. & E., 
 Ency. of Law, p. 47, and cases therein cited.) 
 
 CERTIFICATE OF ELECTION. 
 
 In a few Dioceses a certificate of election of War- 
 dens and Vestrymen is required to be made. In New 
 York State the Statute requires that the presiding 
 officer of an annual election shall enter the proceed- 
 ings of the meeting in the record book of the Vestry, 
 sign his name thereto, and offer the same to as many 
 of the qualified voters present as he shall deem suffi- 
 cient, to be also signed by them. While the law re- 
 quires no certain number of qualified voters so to sign, 
 two such voters, besides the presiding officer, would 
 probably be sufficient. 
 
 In Indiana the law provides that the clerk and teller 
 of the annual meeting shall file a certificate of election 
 with the County Recorder within ten days after the 
 election. 
 
 In the Diocese of California it is required that the 
 Rector, or, in his absence, the Wardens, shall, within 
 one week after the election, forward to the Bishop, 
 
ANNUAL PARISH MEETINGS. 149 
 
 through the Secretary of the Convention, the names 
 of the Wardens, Vestrymen, Treasurer and Clerk 
 chosen at such meeting. (For forms of certificates see 
 Appendix C.) 
 
 In every Parish, even where the law does not so re- 
 quire, a record of the proceedings of the meeting, 
 with the names of the Wardens and Vestrymen 
 elected thereat, and that they each received a majority 
 of the votes cast at said election, should be entered in 
 the minute book of the Vestry, signed by the presiding 
 officer of the meeting and attested by the Secretary 
 thereof, although the signature of the Secretary of the 
 meeting would probably be sufficient in all cases not 
 otherwise provided for by the Statute or Canon. 
 
 In many Dioceses, the annual meeting also elects 
 the required number of delegates to the Diocesan Con- 
 vention, and, in some cases, the same number of 
 alternate delegates. As the qualifications of such dele- 
 gates are fully provided for in the Constitution and 
 Canons of the various Dioceses, they need not be par- 
 ticularly noted here. 
 
 In some Dioceses the law provides that these dele- 
 gates shall be elected by the Vestry. A certificate of 
 such election must be sent to the Secretary of the Con- 
 vention, signed by the Rector, or, if there be no Rector, 
 or he be absent, by one or both of the Wardens, or by 
 the Secretary of the Vestry, as the law may direct. 
 (For forms of such certificates see Appendix D.) 
 
 SPECIAL PARISH MEETINGS. 
 
 Special Parish meetings will seldom be found neces- 
 sary, and in some Dioceses, I apprehend such meetings 
 will never be necessary for legal purposes. The Ves- 
 
150 LA W OF THE CHURCH. 
 
 try, and not the parishioners, are the managing officers 
 of the corporation, and have the control of its tem- 
 poralities. 
 
 In some Dioceses a special Parish meeting must be 
 called to fill any vacancy that may occur in the Vestry, 
 although the Canons of most of the Dioceses now pro- 
 vide that the remaining members of a Vestry may fill 
 all vacancies in their own body, until the next annual 
 election. 
 
 In a majority of the Dioceses the consent of the 
 members of the Parish is made necessary by the Statute 
 or Canon Law, to the alienation or encumbering of the 
 real property of the corporation. 
 
 This consent can only be obtained at a meeting of 
 the parishioners duly called for that purpose. With 
 few exceptions, this consent would be legal if given at 
 the annual meeting, provided the call for the meeting 
 clearly specified that such consent would then be asked 
 for. In a few Dioceses the law provides that a special 
 meeting shall be called for that purpose. In such cases 
 it would certainly be wiser to conform strictly to the 
 language of the Statute, and call a special Parish meet- 
 ing. The consent of the parishioners is, in most of the 
 Dioceses, made necessary to any change in the num- 
 ber of Vestrymen, but the calling of a special Parish 
 meeting for this purpose is obviously unnecessary, unless 
 the Statute or Canon Law clearly so requires. In a few 
 Dioceses a special meeting of the Parish is made 
 necessary by the Canon Law, to elect delegates to any 
 special Convention of the Diocese, but in the absence 
 of any Canon or Statute Law so requiring, no special 
 meeting of the Parish need be called to elect delegates 
 to any such Diocesan Convention or Council, as the 
 
ANNUAL PARISH MEETINGS. 151 
 
 delegates duly elected to represent such Parish at the 
 preceding or succeeding Annual Convention or Council 
 of the Diocese will be legally competent to represent 
 the Parish, as its accredited delegates, in any Special 
 Convention or Council of the Diocese. 
 
 Notice of a special Parish meeting must be given as 
 the Canon or Statute Law directs, usually in the same 
 form and manner as for annual meetings; but an even 
 more strict compliance with the letter of the law is re- 
 quired for special than for annual meetings. The no- 
 tice must state clearly and explicitly the purpose of 
 the meeting, and only such matters can legally come 
 before the meeting as are stated in the notice. The rule 
 that a notice calling a special meeting must state par- 
 ticularly the objects of such meeting, is amply sup- 
 ported by the authorities. — (St. Stephen s Church Cases, 
 25 Abb. N. C, 230; Angell and Ames on Corp., sec. 489; 
 TJiompson on Corp., see. 717.) 
 
 The meeting must be conducted in the same manner 
 as the annual meeting, and is subject to the same reg- 
 ulations concerning the qualifications of voters, and 
 the filing of a certificate when so required. 
 
 CHANGE OF NAME. 
 
 In the absence of any express provision of the law 
 to the contrary, a change in the name of the corpora- 
 tion can only be made by a majority (in some cases, 
 two-thirds) of the members of the Parish. Where the 
 law does not direct otherwise, the proper course, in 
 case a change of name was deemed desirable, would be 
 for the Vestry to first adopt a resolution in favor of 
 such change, and then, at the next annual meeting of 
 the Parish, or at a special meeting duly called for that 
 
1 52 LAW OF THE CHURCH. 
 
 purpose, which in some cases is required, submit the 
 said resolution to the qualified voters of the Parish for 
 their consideration and approval. If the change of 
 name be adopted at such meeting, in accordance with 
 the requirements of the law, a certificate of such 
 action, duly verified as the law directs, must be filed 
 with the proper officer; upon the filing of such certifi- 
 cate the change is completed, and the corporation 
 thereafter shall be known by the name so chosen and 
 set forth in the certificate. In several States, as in 
 New York, when a change in the name of the corpora- 
 tion is desired, application must be made to the Su- 
 preme Court, or to the Court designated for that pur- 
 pose. The application or petition should set forth 
 the name of the corporation, and the fact of its being 
 duly incorporated under the laws of the State; the 
 reasons for desiring a change of name, or facts show- 
 ing the inconvenience of the corporate name; that the 
 petitioner or petitioners were duly authorized to make 
 such application by the majority, or two-thirds major- 
 ity, as the law may require, of the corporators (or 
 parishioners); concluding with a prayer that the cor- 
 poration may be permitted to assume the corporate 
 name, as before determined upon. This petition must 
 be properly verified as the law directs. 
 
 The Court may thereupon issue an order, granting 
 the proposed change, and directing that it be duly 
 published, if the law so requires, and filed, together 
 with the petition, affidavit, and proof of publication, 
 with the officer designated for that purpose. The 
 due filing of these papers completes the change of the 
 corporate name. 
 
CHAPTER III. 
 
 OF THE VESTRY. 
 
 THE MODERN Vestry system, as we have it 
 here in America, was unknown to the Church 
 in primitive times. There were congregations 
 of believers, there were Sacraments, there were Bishops, 
 Priests, and Deacons, but there were no Vestries. 
 Many believe the Vestry system of the American 
 Church to be a providential creation, and the most 
 efficient of all parochial systems. However the modern 
 Vestry system may be regarded, nobody expects, and 
 few, I apprehend, desire to see it done away with. It 
 has become a part of the American Church organiza- 
 tion, and is now generally necessary to the fullest de- 
 velopment of Church life in an American Parish, and 
 is therefore to be respected and utilized. 
 
 At the present day, with few exceptions, our Parishes 
 are organized as corporations under the name of Rec- 
 tor, Wardens (or Church Wardens) and Vestrymen. 
 The very name shows that the corporation is made up 
 of three separate and distinct component parts, the 
 Rector, the Wardens, and the Vestrymen, each part 
 being necessary to its corporate life. These three 
 component and integral parts constitute the Vestry of 
 a Church, corresponding to the select Vestry of the 
 Church of England, and representing the whole body 
 of the parishioners. 
 
 While in one or two Dioceses the name Vestry is 
 given to the Vestrymen, and the corporation is de- 
 
154 LA IV OF THE CHURCH. 
 
 nominated " The Rector, Wardens and Vestry," the 
 word " Vestry " in this work, will be used in its true 
 sense, as meaning the corporation, "the Rector, 
 Wardens and Vestrymen" of a Parish. When the 
 Rectorship of a Parish is vacant, then the Wardens and 
 Vestrymen, with certain restrictions as hereinafter 
 noted, constitute the Vestry. 
 
 The Vestry are the corporate Trustees of the Church, 
 and to them the law confides the management and con- 
 trol of its temporalities. 
 
 POWERS OF A VESTRY. 
 
 It is a well settled principle of law, that a corpora- 
 tion created by Statute possesses only such powers as 
 are conferred upon it by the Statute, either expressly 
 or as incidental to its very existence. In order that a 
 corporation may derive a power by implication, it must 
 appear that the power thus sought to be implied is so 
 necessary to the enjoyment of some specially granted 
 right, that without it the right would fail. — {Sedgwick 
 on Con. of Stat. Law, p. 292; Smith v. Moffat, 1 Barb., 
 65; Gaines v. Coates, 51 Miss., 335; Tlumpson v. Wetter, 
 85 ///., 197; P. R. R. Co. v. Canal Coin's, 21 Penn , 9.) 
 
 It is also a well recognized rule that charters of all 
 corporations are grants of power to exercise certain 
 rights as specified in such charters, and are to be con- 
 strued strictly. — {Sedgwick on Con. Stat. Laze, pp. 267, 
 295 ; Robertson et al. v. Btcttions et at , 11 A 7 . Y., 243.) 
 
 In Salem Mill Dam Corp. v. Ropes (6 Pick. [Mass.], 
 23), the Court held : " The power of corporations is 
 derived only from the act, grant, charter or patent by 
 which they are created. In this Commonwealth, the 
 source and origin of such power is the Legislature, 
 
THE VESTRY. 155 
 
 and corporations are to exercise no authority, except 
 what is given by express terms or by necessary impli- 
 cation by that body." 
 
 A Vestry being a corporate body, its powers are 
 special powers, granted by Statute, and the Statute 
 conferring them must be strictly construed. The 
 powers so granted cannot be exercised for any collat- 
 eral purpose. — (Dartmouth College v. Woodzvard, 4 
 Wheat., 518; Diligent Fire Co. v. Commonwealth, 75 
 Pa. St., Rep. 291; Heiskellv. Mayor, etc., 65 Md., 125.) 
 
 A Vestry cannot bind the Parish by any action of 
 theirs, beyond the express powers granted them by 
 the Act of Incorporation, or the Church Charter, or 
 the Canons of the Church. — (Miller v. Church, 4 Phil. 
 48; Bailey v. M. E. Church, etc., 71 Me., 472.) 
 
 It must also be remembered that such powers relate 
 only to the temporal affairs of the Parish, and touch 
 not the spiritual, which are under the exclusive control 
 and direction of the Rector, in subordination to the 
 Ecclesiastical Authority of the Diocese. 
 
 The powers of a Vestry may thus be enumerated : 
 
 First. They are the Trustees, and have the custody 
 and administration of all the corporate property and 
 temporalities, real and personal, of the Parish, and the 
 revenues therefrom, as specified by Statute or Canon 
 Law, or by the Church Charter. 
 
 Second. To erect Church edifices, Rectories, Parish 
 Houses, and other buildings for the use of the Parish 
 and to alter and repair the same when necessary. 
 
 Third. To regulate and order the renting of pews, and 
 to dispose of all moneys accruing therefrom, and all other 
 moneys received by them, excepting the canonical col- 
 lections, as may be for the best interests of the Church. 
 
156 LAW OF THE CHURCH. 
 
 Fourth. To make by-laws for the orderly management 
 of the temporal affairs of the Parish, provided they be 
 conformable and subordinate to the laws of the State, 
 and the Constitution and Canons of the Church ; to 
 appoint a Secretary, a Treasurer and such other officers 
 of the corporation as they may deem necessary ; and 
 to make, have, and use, a common seal and to alter the 
 same at pleasure. 
 
 Fifth. To elect conformably to the Canons of the 
 Church, and the Statutes of the State, a Rector to fill 
 a vacancy, whenever occurring, in the Rectorship of 
 the Parish, and to fix the amount of his salary or 
 compensation ; also to request the Bishop to have him 
 instituted as Rector, if he be so disposed and that 
 office be used in the Diocese. 
 
 While in a few States and Dioceses, these powers, as 
 enumerated, are somewhat modified by the specific 
 provisions of the Statute or Canon Law, or the Church 
 charter, they will, I believe, be found to represent 
 fairly the varied powers conferred upon Vestries by 
 the law in the majority of the Dioceses. 
 
 In every State and Diocese it will be found that the 
 Statute Law and the Canons culminate in the one idea 
 of making the Vestry the legal custodians of the tem- 
 poralities of the Parish. 
 
 The duties of a Vestry are well set forth in the 
 " Report of the Joint Committee on the Functions of 
 Rectors, Wardens and Vestrymen" to the General 
 Convention of 1880. To their Report they appended a 
 proposed Canon, of which the following is a part : " It 
 is the duty ot the Vestry to secure to the Rector and 
 Assistant Minister a proper maintenance and support, 
 regarding it as a most sacred duty, and as a claim of 
 
THE VESTRY. 157 
 
 prior obligation and force, in order that they may be 
 free to perform the duties of their sacred calling ; to 
 see that the property of the Parish is cared for and 
 administered in accordance with the Canons, Laws, and 
 customs of the Church ; that the Church buildings and 
 Parsonage are kept in repair ; that the Parish revenues 
 are properly expended; and to elect the Rector and 
 other Ministers as provided by this Canon." — {Journal 
 Gen. Con., 1880,/. 468.) 
 
 The Wardens and Vestrymen, as the representatives 
 of the laity, should ever seek to represent " the best 
 intelligence, the most loyal Churchmanship, and the 
 most earnest piety of the Parish in matters temporal 
 and spiritual." They are ever to remember that the 
 temporal matters confided to them pertain to the 
 Church of Christ, and that "their trusteeship has a 
 spiritual bearing and should work in and with, and be 
 in subservience to, the great object of parochial organ- 
 ization, viz., the ingathering of souls into the fold of 
 Christ." 
 
 CUSTODY OF THE REAL ESTATE OF THE 
 CORPORATION. 
 
 The law vests the title to the real estate of the cor- 
 poration in the Rector, Wardens and Vestrymen, as 
 Trustees, collectively, for all corporate purposes. It 
 also confides to them the custody and management of 
 such property, and gives them power, under certain 
 restrictions, to sell, mortgage, and lease the same. 
 They may also take, by gift or purchase, other real 
 estate, and improve the same for the use and benefit 
 of the Church. The amount in value of the property, 
 aside from that used exclusively for religious purposes, 
 
158 LA W OF THE CHURCH. 
 
 which they may hold, is, in several States, limited 
 by law. In New York they may hold property not 
 exceeding in value $2,000,000, and whose yearly in- 
 come does not exceed $100,000. In New Jersey, the 
 amount is limited to a yearly income not exceeding 
 $2,000, but provision is made that if the corporation 
 desires to have and enjoy a larger amount than that to 
 which it is limited by the act of incorporation, they 
 may, by a majority vote, adopt a resolution declaring 
 such desire and stating the amount to which it is to 
 be increased. This resolution, certified and authen- 
 ticated under the common seal of the corporation and 
 duly verified by the oath of the Secretary thereof, must 
 then be filed in the office of the Secretary of State, and 
 upon the filing thereof the corporation may then have, 
 hold and enjoy any real or personal property for the 
 use and benefit of said corporation not exceeding the 
 increased amount named in the resolution so filed. In 
 the majority of the States the law places no limitation 
 on the amount in value of the property that the cor- 
 poration may hold. 
 
 In Michigan, where there is no such restriction, the 
 law provides that the Vestry shall not hold or use any 
 real estate not reasonably necessary for a Church build- 
 ing, Chapel, lecture and school rooms, and for dwellings 
 for the Ministers thereof, for a longer period than ten 
 years. 
 
 In most of the States the law places some restrictions 
 upon the power of the Vestry to sell, mortgage or lease 
 the real estate of the corporation. In some States, as 
 in New York, the Vestry may not sell any of the real 
 property of the corporation without first applying to 
 and obtaining permission of the Court therefor. In the 
 
THE VESTRY. 159 
 
 majority of the States the consent of the members of 
 the Parish must first be obtained at a meeting duly 
 called for that purpose, before the Vestry may legally 
 alienate or encumber any of the real property of the 
 corporation. The consent of the Bishop and Standing 
 Committee to the alienation and encumbering of the 
 real estate of the corporation is most wisely provided 
 for by Statute Law in some States. But if the rector- 
 ship of the Parish be vacant, then, as will be shown 
 hereafter, the consent of the Bishop is necessary to 
 such alienation in the absence of any Statute Law to 
 the contrary. 
 
 Although the Canons of the Church require the 
 consent of the Bishop and the Standing Committee to 
 the alienation of the real property of the corporation, 
 the Courts have decided that, to have any legal effect, 
 it must also be a provision of the Statute Law. " Titles 
 to property must be determined by the laws of the 
 State." — {Sokier v. Trinity Church, 109 Mass., 1.) 
 
 All proceedings affecting the title to the property 
 of the Church must be taken in the corporate name, 
 viz., " The Rector, Wardens (or Church Wardens) and 
 Vestrymen of- Church," etc. 
 
 In some States it has been decided that the Vestry 
 may institute proceedings to sell the property of the 
 Church without consulting the members of the Parish. 
 — {Church v. Church, 46 N. V., 131.) 
 
 In the case of Mason v. Muncaster et al. (9 Wheat., 
 445), involving the question as to the right of the 
 parishioners of the whole Parish to be made parties to 
 a bill to dispose of certain property of the Parish, as 
 being cestuis que trust of that property, the Supreme 
 Court of the United States decided that "in an ac- 
 
160 LA W OF THE CHURCH. 
 
 curate and legal sense, the parishioners are not the 
 cestuis que trust, for they have individually no right or 
 title to the property. It is the property of the Parish 
 in its corporate or aggregate capacity, to be applied 
 and disposed of for parochial purposes under the au- 
 thority of the Vestry, who are its legal agents and 
 representatives." While the decisions of many of the 
 State Courts would seem to indicate, by implication, a 
 different opinion, referring to the parishioners as cestuis 
 que trust, without formally deciding them to be such, 
 yet I apprehend that the decision of the Supreme 
 Court in the above case, that the members of a Parish 
 are not, in an accurate and legal sense, the cestuis que 
 trust of the Church property, is strictly correct, their 
 interest in such property being only a corporate, and 
 not an individual interest, the property being man- 
 aged and applied for the benefit of the corporation, and 
 not for the members thereof as individuals. 
 
 The mode, extent and circumstances under which 
 such property is to be applied is wholly within the 
 discretion of the Vestry in their corporate capacity, but 
 they cannot divert such property to any other purpose 
 than the maintenance of the Church's worship and the 
 propagation of her doctrines as defined and set forth 
 in her Book of Common Prayer, nor sever their con- 
 nection with the Church and unite with any other 
 religious body without impairing their title to the 
 property of the Parish by them holden in trust there- 
 for. — {Jones v. Wadsworth, if Phila. Rep., 227; Isham 
 v. Trustees, etc., 63 How. Pr., 465; Watson v. Jones, 13 
 Wall., 679.) 
 
 (For forms relating to the transfer of real property, 
 see Appendix E.) 
 
THE VESTRY. 161 
 
 CORPORATE CAPACITY. 
 
 It is a well established principle of law that Vestry- 
 men have no official powers as such, save when assem- 
 bled in a Vestry meeting duly called. 
 
 They have no individual authority to bind the cor- 
 poration, although the majority of them, or even the 
 whole number, acting singly and not collectively as a 
 corporate body, should assent to some particular 
 transaction. — {People s Bank v. St. Anthony's Church, 
 109 N. V., 512.) 
 
 The rule was well stated by the Supreme Court of 
 Pennsylvania in a recent case, involving the legality 
 of a resolution purporting to have been passed by the 
 Vestry of a Church and signed by a majority of the 
 Vestrymen, but which, in fact, was adopted at a meet- 
 ing when less than a legal quorum attended, and after- 
 wards signed by a Vestryman who was not present at 
 the meeting. The Court held that the resolution was 
 not binding on the corporation. " The Vestry of a 
 Church as the representatives of a corporate body 
 must meet in order to take official action. They can- 
 not act singly upon the streets, or wherever they may 
 be found. This is because they are required to be 
 deliberate. It is the right of the minority to meet 
 the majority, and, by discussion and deliberation, to 
 bring them over if possible to their own views." — 
 (Appeal of Ritenhouse, 21 At. Rep., 254. See also United 
 Brethren, etc., v. Van Dusen, 37 Wis., 54; Leonard v. 
 Lent, 43 Wis., 83 ; St. Patricks Church v. Gavalon, 
 82 ///., 170; Constant v. Rector, etc'., 4 Daly, 305; Cam- 
 imyer v. The Churches, 2 Sand. Ch. Rep., 186; 1 
 Waterman on Corp., sec. 70; I Moraivetz on Corp., 
 sec. 531.) 
 
1 62 LAW OF THE CHURCH. 
 
 EXTENT OF VESTRY'S POWER OVER THE CHURCH 
 BUILDINGS. 
 
 The church edifice is held in trust by the Vestry for 
 religious purposes only, and they have the custody 
 thereof under the Rector. — {Burn s " Ecc. Law'' Vol. 
 
 I.,/. 399-) 
 
 But the direction of its use belongs exclusively to 
 the Rector, and access to it is entirely under his con- 
 trol. In the "Office of Institution," the keys of the 
 church are delivered to the Rector as a token of the 
 delivery of the church edifice itself, and the inference 
 therefrom is conclusive that, virtute officii, the Rector 
 has exclusive control of the church. The courts, both 
 in England and in this country, have ever so held, and 
 the rule may be stated as an universal one, that to the 
 Rector alone, under the Bishop, belongs the absolute 
 control of the use of the church edifice and access 
 thereto. 
 
 As this question will be more fully considered and 
 authorities cited, in the chapter relating to the Rector 
 and his powers, further consideration of the question 
 at this time is unnecessary. I will only quote the 
 opinion of Judge Hoffman on this point. 
 
 " The Law of the Church at large, and especially 
 the Law of the Church of England, the Common Law 
 itself, vested the right over the church edifice and its 
 employment in the Rector. The authority of Church 
 Wardens was subordinate to his. When the Church 
 avails itself of an act of incorporation, or other statute 
 of the civil power, it is bound to take it in its true ex- 
 tent and meaning, but no further. The title, then, 
 to the church, and all church property, is in the 
 
THE VESTRY. 163 
 
 trustees collectively, for all corporate purposes; 
 but there is another class of purposes, purely Eccle- 
 siastical, as to which the Statute did not mean to 
 interfere or prescribe any rule. These are to be con- 
 trolled by the Law of the Church. One conclusion 
 seems, for example, deducible from these principles 
 — that the control and possession of the church edi- 
 fice upon Sundays, and at times when open for Divine 
 services, appertains exclusively to the Rector. This, 
 it seems to the author, is implied in his call, essential 
 to his office, and must be paramount. "' — {Hoffman's 
 " Laiv of the Church" p. 266.) 
 
 The same rule undoubtedly applies to Parish and 
 Guild houses, and all other buildings, owned by the 
 corporation, that are used for Ecclesiastical purposes. 
 — (Humphrey s " Law of the Church," p. 34; Lynd. v. 
 Menzies et at., 33. N.J. L. Rep., 162.) 
 
 To the Vestry belong the power to erect a church 
 edifice and such other buildings as they may deem nec- 
 essary for the best interests of the Parish, and to alter 
 and repair those already erected. It is also their duty 
 to see that the property of the corporation is kept in 
 good order and well repaired. 
 
 By Canon £5 of the Canons of 1603, it was made the 
 duty of the Church Wardens or questmen to see that 
 the churches were kept well and sufficiently repaired ; 
 that the windows be well glazed, and the floors kept 
 paved, and all things there in an orderly and decent 
 sort, "as best becometh the House of God, and is 
 prescribed in an homily to that effect. The like care 
 they shall take that the churchyards be well and suf- 
 ficiently repaired, fenced, and maintained, with walls, 
 rails, or pales, as have been in each place accustomed, 
 
164 LA W OF THE CHURCH. 
 
 at their charges unto whom by law the same apper- 
 tained." 
 
 PEWS AND PEW-HOLDERS. 
 
 The Vestry have complete control over the pews, 
 and may sell, rent, or declare them free to all worship- 
 pers, as they may deem for the best interests of the 
 Church. 
 
 In churches where the pews are rented, it is the 
 duty of the Vestry to fix the rental price of the pews, 
 attend to the renting of the same and collect the rents 
 thereof, or cause them to be collected under their 
 direction. 
 
 It seems to be the better opinion that, in the ab- 
 sence of any express stipulation or agreement in the 
 matter, a person renting a pew will be considered as 
 renting it for that length of time for which bills for 
 pew rents are made payable; as, for instance, if pew 
 rents are made payable at the beginning or end of each 
 month or quarter, the pew will be considered as rented 
 by the month or quarter, as the case may be. 
 
 It is also the duty of the Vestry to attend to the 
 seating of strangers and members of the congregation 
 at times of Divine service. 
 
 The individual pew-holder has only the right of use 
 and occupation of a pew when in attendance on the 
 public services of the Church. The right of property 
 in such pew belongs to the corporation. 
 
 If a pew be purchased it will require a deed to pass 
 the title and vest it in the purchaser. — {First Bap. 
 Church v. Bigelow, 16 Wendell, 28 ; St. Paul's Church v. 
 Ford et al., 34 Barb., 16.) 
 
 The right of a pew-owner in a pew thus acquired by 
 
THE VESTRY. 165 
 
 deed is an incorporeal hereditament, and has some of 
 the qualities of realty, but no such right attaches to a 
 pew so acquired, as will prevent a sale of the church edi- 
 fice.— ( Wheaton et al. v. Gates et al, 18 N. Y. Rep., 395.) 
 
 A purchaser of a pew takes the same with pre- 
 sumptive knowledge of, and assent to, this condition. 
 
 " The question of remuneration or an equivalent 
 right to a pew in a new church, if erected, must be left 
 to subsequent adjustment." — {Hoffman s " Law of the 
 Church" p. 257; Heeney v. St. Peter s Church, 2. Edw. 
 Ch. Rep. 608; Kellogg v. Dickinson, 18 Vt. Rep. 266; 
 Daniel v. Wood, I Pick., 102.) 
 
 The owner of a pew may maintain an action of tres- 
 pass against an intruder. — {Shaw v. Beveridge, 3 Hill 
 26.) 
 
 In a free church the Vestry have entire control of 
 the pews, and may direct what pews shall be occupied 
 by the different members of the congregation. They 
 may also request any one to vacate any certain pew, 
 and have the legal right to enforce the same. —{Sheldon 
 v. Vail, 28 Hun., 354.) 
 
 CUSTODY OF THE REVENUES OF THE CHURCH. 
 
 We have already seen that the title and the custody 
 of the property of the corporation are exclusively in 
 the Vestry, as trustees thereof. 
 
 The right to have, hold and use all the income, 
 rents and profits, if any, of all such property is also 
 in the same body. 
 
 To this rule there is, however, one exception. If a 
 bequest has been made, appropriating the income 
 thereof to the support of the Rector of the Parish, dis- 
 tinctly and exclusively, he has the right to such in- 
 
166 LA W OF THE CHURCH. 
 
 come, unless by consent in writing he has qualified 
 such right, or if when a Rector received a call to a 
 Parish, the call explicitly reserved a certain sum out 
 of such income for the support of services at a chapel, 
 and such call be duly accepted in writing, he would un- 
 doubtedly be bound thereby — {Hoffman's " Ecc. Law" 
 
 p. 83 ) 
 
 To the Vestry also belongs the right of ordering the 
 disbursement of all moneys received by them, except 
 the canonical offerings, for the best interests of the 
 Church. But, as has already been stated, they cannot 
 divert any of such revenue to any other purpose than 
 the maintenance of her worship as set forth and estab- 
 lished in her Book of Common Prayer, the dissemina- 
 tion of her doctrine and teachings as contained in her 
 authorized standards, and the furtherance of her 
 spiritual and temporal interests. — {Chase v. Cheney, 58 
 ///., 509 ; Nelson v. Benson, 69 ///., 27 ; Isham v. 
 Fullager, 14 Abb. N. C, 363 ; Deaderick v. Lampson 11, 
 Heisk. \_Tenn.~], 523.) 
 
 The courts will restrain any attempt by a Vestry to 
 maintain a Rector or Minister who has been duly de- 
 posed by the proper authority. 
 
 Any member of the corporation may make applica- 
 tion to the courts to restrain a Vestry from so divert- 
 ing the revenues of the Church. — {Church v. Botvden, 
 14 Abb. N. C, 356; Isham v. Fullager, Idem, 363.) 
 
 A Vestry may also enforce the payment of subscrip- 
 tions made for religious purposes, when it can be shown 
 that, relying upon such subscription, they have taken 
 action involving the expenditure of money; also 
 " whenever several persons subscribe upon a mutual 
 reliance upon each other, each subscriber may be com- 
 
THE VESTRY. 167 
 
 pelled to pay what he promised." — {Rickey's " Church- 
 man's Hand Book" p. 38. See also Underwood v. Wal- 
 dron, \z Mich. Rep., 7$ ; C^mstock v. Howd, 15 Mich. 
 Rep, 237.) 
 
 With few minor exceptions, which will be noted 
 later under the head of " Duties of Wardens," the 
 Vestry alone have the power to contract debts that 
 will render the property of the Parish legally liable for 
 the payment thereof. The Rector has no power to 
 incur liabilities binding upon the Vestry. 
 
 BY-LAWS. 
 
 While the laws of many of the States provide that 
 Vestries may make such by-laws, or rules and orders 
 for the management of the property and the regula- 
 tion of the affairs of the Church, as they may deem 
 necessary, the power to make by-laws or rules for the 
 government of a corporation is incident to its creation, 
 without any formal word:- conferring it. — {In re Direc- 
 tors L. I. R. R., 19 Wendall, 37.) 
 
 Two important rules of law should, however, be 
 noted in connection therewith : First, such by-laws 
 must be necessary or convenient to the carrying out 
 of the purposes of its creation; and second, they must 
 be conformable and subordinate to, and not inconsist- 
 ent with, the law of the land, the law of the Church, 
 cr the Charter of the Parish. — Taylor v. Griswold, 14 
 N. J. L. Rep., 222; Commonzvcalth v. Cain, 5 Serg. and 
 Rawie {Pa. Rep], 510.) 
 
 In Vestry of St. Luke's Church v. Matthews (4 
 Desaus., 5/8), the Court declared that "a new by-law 
 requiring a new qualification to entitle persons other- 
 wise qualified to vote was therefore an attempt to 
 
168 LA W OF THE CHURCH. 
 
 transcend the powers given and to alter the qualifica- 
 tion of voters, and was a violation of the Charter." — 
 (See also McDermott v. Board of Police, 5 Abb. Pr. Rep., 
 422; Brick Pres. Church v. Mayor, etc., 5 Cozven, 538; 
 People ex. rel., v. Chicago Live Stock Exchange, 48 
 N. E. R., 1062; Prickttt v. Wells, 117 Mo. Rep., 502.) 
 
 ELECTION OF RECTOR. 
 
 It may be stated as a general rule, having but few 
 exceptions, that to Vestries is given the power of 
 electing the Rector of a Parish, and the fixing of his 
 salary or compensation. They also have the power of 
 electing a Secretary or Clerk, a Treasurer, and such 
 other officers as they may deem necessary for the 
 interests of the Corporation. 
 
 In only a few States have the members of the Parish 
 any voice or vote in the matter. In the Diocese of 
 Colorado, the Canons provide that, if the Vestry fail 
 to fill a vacancy in the Rectorship of a Parish within 
 three months, the Ecclesiastical Authority shall nomi- 
 nate to the Wardens a Priest to fill the same. Upon 
 receiving the nomination, the Wardens shall call a 
 meeting of the qualified voters of the Parish, and sub- 
 mit to them such nomination. If a majority of the 
 votes shall be cast for the nominee, he shall be declared 
 the Rector of the Parish. In case the nomination 
 should be rejected, the Ecclesiastical Authority shall 
 make a second, and, if necessary, a third nomination. 
 Should this nomination be rejected, then the Bishop 
 may appoint some Minister as Lcum tenens, to act until 
 the next annual Council. It is also made the duty of 
 the Parish to provide for the comfortable support of 
 
THE VESTRY. 169 
 
 such loctim tenens, and to accord to him all the rights 
 and powers of a Rector. 
 
 In the Diocese of Connecticut the Canons provide 
 that the choice and salary of a Rector shall not be 
 within control of the Vestry, unless by special vote of 
 the Parish. 
 
 In the Diocese of Western Michigan the Canons 
 provide that if, after the expiration of six months, the 
 Vestry of any Church that has become vacant shall fail 
 to call or settle a Minister, then it shall be the duty of 
 the Bishop to appoint one, and he shall notify the 
 Vestry of such appointment, and upon their concur- 
 rence, the Minister so appointed shall become the Rec- 
 tor of the Church. 
 
 In the Diocese of Fond du Lac the Canons provide 
 that if the Vestry of a vacant Parish fail to fill the va- 
 cancy within three months, then " it shall be the duty 
 of the Bishop to nominate at least three Clergymen for 
 the Rectorship. If no election be made within three 
 months subsequent to such nomination, the Bishop 
 may appoint a Rector who shall have all the rights 
 and powers of a Rector elected by the Vestry." In 
 the Diocese of Springfield and a few other Dioceses, 
 the consent of the Bishop is made necessary, before a 
 Clergyman elected to the Rectorship of a Parish can 
 become the Rector thereof. 
 
 In most of the States, the Statute Law gives to the 
 Vestry of a Parish the power of electing the Rector 
 thereof whenever a vacancy may occur. 
 
 Is this power of election absolute and exclusive of 
 any and all Canon Law restricting or modifying that 
 power ? Has a Canon requiring the consent of the 
 Bishop as a prerequisite to the election of a Clergyman 
 
1 7 o LA IV OF THE CHURCH. 
 
 to the Rectorship of a Parish any legal force in a State 
 where the Statute Law gives the power of such elec- 
 tion to the Vestry of the Parish ? 
 
 It is a question not wholly free from difficulties. 
 The statement of a few plain principles may help us 
 somewhat in arriving at a correct conclusion in the 
 matter. These principles, so plain as to seem like 
 mere truisms, may be stated as follows: 
 First. The Church existed before Vestries. 
 Second. The three Orders of the Ministry were consti- 
 tuted before Vestries existed. 
 Third. The Church and her three-fold Ministry of 
 Bishops, Priests and Deacons are Divine in their 
 origin, perpetual in their existence, and essential 
 to the Church's being. 
 Fourth. The Vestry is human in its origin, without Di- 
 vine authority or obligation, and non-essential 
 either to the Church's being or to the discharge 
 of her holy offices. 
 Fifth. It is the Bishop, not the Vestry, who has the 
 charge and government over the Rector, to whose 
 godly judgments and admonitions he promised to 
 submit, and whom he promised reverently to obey 
 in the solemn moment of his ordination to his holy 
 office. 
 The solemn vows of ordination are forever binding 
 on every duly ordained Clergyman, and no Vestry by 
 calling him to be their Rector can release him from 
 his covenant vows and obligations; by becoming a 
 Rector he does not thereby cease to be a Priest. 
 
 With this statement of certain fundamental princi- 
 ples, whose truth cannot well be impugned, let us now 
 turn to a direct consideration of the question before 
 
THE VESTRY. 171 
 
 stated, viz.: Is the power given by law to a Vestry to 
 call a Rector an exclusive power ? 
 
 When a Church avails itself of an act of incorpora- 
 tion, or other statute of the civil power, it is of course 
 bound to take that law in its true meaning and ex- 
 tent, but no further. The law creates the corporation 
 for an express purpose, that of enabling the Church 
 to more effectually carry on and promote her work, 
 according to her own particular laws and principles ; 
 and the corporation so created cannot abrogate or 
 disavow the laws and usages of the Church, without 
 " violating the very essential principle that brought it 
 into being." The laws and principles of the Church 
 must, of very necessity, form the rule of conduct for 
 such corporation, and in conformity to that rule must 
 it exercise the powers given to it by the Statute Law. 
 The courts are well agreed on this point. — {Watson v. 
 Jones, 13 Wall., 679; Chase v. Cheney, 58 ///., 509; 
 Pounder v. Ashe, 44 Neb., 672 ; Christ Church v. Phillips, 
 5 Del. Ch. Rep., 429; Livingston v. Rector, etc., 45 
 N.J. L. Rep., 230; Prickett v. Wells, 117 Mo., 502.) 
 
 The question next arises as to what are the princi- 
 ples of the Church in this matter. 
 
 To the principles of the Church of England we must 
 look, if we would fully and clearly understand the 
 principles of the American Church. 
 
 It cannot be doubted that in the earliest ages, when 
 separate Dioceses were first established, with a Bishop 
 in charge thereof, the power of legislation vested in 
 him. " Originally, the Bishop, in his Diocese, was 
 clothed with the ultimate and exclusive power of 
 government, and that this involved all judicial and all 
 legislative authority, seems to the author the only 
 
172 LAW OF THE CHURCH. 
 
 doctrine consistent with the tenet of an Apostolic 
 Episcopacy." — {Hoffman s "Law of the Church," p. 180.) 
 
 In England as early as the year 740, it was declared, 
 " That Priests be neither constituted to any Churches, 
 nor ejected from them, without the authority and con- 
 sent of the Bishops." — (" Excerptions of Ecgbrihf' [23^], 
 Johnson 's Lazvs, etc., Vol. I.) 
 
 Bishop Beveridge well says : " I confess myself ut- 
 terly ignorant why or in what manner a distinction 
 should be drawn between an Apostolic and a Divine 
 right ; and since the Apostles transmitted the authority 
 committed to them by Christ to the Bishops, their 
 successors, there seems to us nothing more agreeable 
 to reason, nothing more necessary, than that this jur- 
 isdiction of Bishops over Presbyters should be referred 
 to a Divine institution." — {Lib. II., Cap. 1155-18, Zte 
 Episcopis. Cited in Hoffman 's " Law of the Church" 
 p. 183.) 
 
 In Bird v. Smith {Moore s Rep., 781), the Lord Chan- 
 cellor and the two Chief Justices of England, with the 
 Chief Baron, declared : " That at the Common Law, 
 every Bishop in his Diocese, and the Archbishops in 
 Convocations, could make Canons to bind the clergy 
 within the limits of their jurisdiction." 
 
 While this power and authority of a Bishop has been 
 greatly modified and limited, either by the consent of 
 the Bishops themselves, or by the enactments of 
 Councils of superior authority and to which the Bishops 
 were a party, there can be no question that in the 
 Church of England, from the beginning to the present 
 time, the consent of the Bishop has been, and is, abso- 
 lutely necessary, before a Clergyman can be constituted 
 the Rector of a Parish. It is a well-known fact that 
 
THE VESTRY. 173 
 
 in the Church of England Vestries have little or no 
 voice in the choice of a Rector. As originally all 
 power and authority was given to the Bishops and 
 by them exercised for centuries, that power and au- 
 thority vests in them to-day, except where surren- 
 dered by them, or taken from them by legislative 
 enactment, or by a legitimate conclusion from such 
 enactment. Unless such evidence can be produced, 
 " we have," as Judge Hoffman says (" Law of the 
 Church," p. 181), "the Bishop's primitive jurisdiction 
 to resort to for guidance and direction — a power 
 without a shadow of claim to infallibility, but with 
 an absolute claim to obedience." It will not, I think, 
 be contended by any one, that the Church of England, 
 or the Church in America, has ever by any legislative 
 enactment deprived the Bishop of a Diocese of his right 
 to require that his consent shall first be obtained, 
 before a Minister elected by the Vestry of a Parish 
 shall become the Rector thereof. 
 
 It is a principle of the Church of England that the 
 Bishop is the source of authority within his Diocese, 
 and therefore a principle of the Church in America, 
 unless that principle has been expressly controverted 
 or denied by some enactment to the contrary. 
 
 But the Church, so far from denying it, has distinctly 
 recognized and affirmed, in the " Office of Institution," 
 as adopted and set forth in her Book of Common 
 Prayer, the principle of the Mother Church as her own 
 principle, that the Bishop is the source of authority 
 in his Diocese, and that his permission is necessary be- 
 fore a Rector of a Parish can act as such within it. 
 
 Among the strong words used by the Bishop in this 
 "Office of Institution " are these : "We do by these 
 
174 LA W OF THE CHURCH. 
 
 presents give and grant unto you, . . . our License 
 and Authority to perform the office of a Priest in the 
 Parish {or Church)," etc. "And also hereby do insti- 
 tute you into said Parish, possessed of full power to 
 perform every Act of sacerdotal Function among the 
 People of the same; you . . . complying with the 
 rubrics and canons of the Church, and with such law- 
 ful directions as you shall at any time receive from 
 us." And again : " We authorize you to claim and 
 enjoy all the accustomed temporalities appertaining to 
 your cure," etc. In the Letter of Institution, the Rec- 
 tor is charged by the Bishop to bear in mind that he 
 is accountable to the Ecclesiastical Authority here, 
 "and to the Chief Bishop and Sovereign Judge of all, 
 hereafter." 
 
 Truly, it is with no uncertain voice that the Church 
 declares her adherence to, and affirmation of, the 
 Catholic principle that the source of Diocesan author- 
 ity is in the Bishop, and that his consent is necessary 
 before a Clergyman can act as Rector of a Parish 
 within his Diocese. 
 
 It may be said that while this was the law once, it 
 is not the law to-day, because it is not now uniformly 
 enforced nor obeyed, nor the use of this particular 
 Office of Institution now obligatory. That fact makes 
 not the slightest difference. A law is a law, whether it 
 be enforced or not, or whether it be obeyed or not, 
 and the principle contained in that law is no less true 
 because the law itself is not obeyed nor enforced. 
 
 It is, therefore, in my judgment, manifestly the Law of 
 the American Church to-day, first, that the Bishop is the 
 source of authority within his Diocese, and second, that 
 the Bishop's consent to the election of a Clergyman to 
 
THE VESTRY. 175 
 
 the Rectorship of a Parish within his Diocese, be- 
 fore such Clergyman can act as such Rector, is neces- 
 sary. 
 
 It has already been shown that the courts have uni- 
 formly held that a religious corporation must exercise 
 the powers given to it by the Statute Law, in con- 
 formity with, and subservient to, the Ecclesiastical 
 laws and principles of the Church with which it is con- 
 nected, and of which it forms a part. It is plain, there- 
 fore, under these decisions of the courts, that the power 
 of electing a Rector, given by the Statute Law to a 
 Vestry, is not an exclusive power, but a power to be 
 exercised in accordance with, and conformity to, the 
 laws and principles of the Church. If this be true, and 
 it is not easy to see how it can be successfully contro- 
 verted, then has the Church the right and the power to 
 enact Canons, making necessary the consent of the 
 Bishop, before a Clergyman elected to the Rectorship 
 of a Parish can legally become the Rector thereof. As 
 a further evidence that the power of election by a 
 Vestry is not an exclusive power, it may be stated as 
 an unquestioned fact that a Vestry cannot elect any 
 person they may choose to the Rectorship of a Parish; 
 they must elect a Minister of the Church, and one who is 
 possessed of the necessary qualifications, and those 
 qualifications are confessedly to be determined by the 
 Ecclesiastical Authority of the Diocese, according to 
 the laws and principles of the Church. This restriction 
 on the power of Vestries to elect a Rector is obviously 
 implied in the Statute Law granting them the power 
 of election, and would alone be sufficient to prove 
 that the power referred to is not an absolute and 
 exclusive power, and also that such power must be exer- 
 
176 LA W OF THE CHURCH. 
 
 cised in accordance with, and in conformity to, the 
 laws and principles of the Church. The right of a 
 Rector to his office is determined not by the Civil Law, 
 but by the Canons and discipline of the Church, and the 
 Civil Law will not shield him from the consequences 
 of broken vows, or improper administration, nor make 
 him superior to the authority of the Bishop, or to the 
 laws and discipline of the Church and its tribunals. If 
 he be deposed, or the pastoral tie be dissolved by the 
 Bishop, his Rectorship ceases. The pastoral relation 
 is controlled by the Ecclesiastical Authority, and the fact 
 of the dissolution of it by such Authority in accordance 
 with the discipline of the Church, is conclusive upon the 
 civil courts. — (Jennings v. Scarborough et al., 56 N.J. 
 L. Rep., 401; Livingston v. Rector, 45 N. J. L. Rep., 
 230; Walker v. Wainwright, 16 Barb., 486 ; Shannon 
 et al. v. Frost et al., 3 B. Monr., 253; Kuns v. Robert- 
 son, 154 ///., 394; East Norway Lake Church et al. v. 
 Halvorson, 42 Minn., 503; Stack v. OHara, 98 Pa., 
 213; Gaff et al. v. Greer et al., 88 Lid., 122; 0' Dono- 
 van v. Chatard, 97 Ind., 421; Baxter v. McDonnell, 
 ISSN. F.,83.) 
 
 In Pounder v. Ashe (44 Neb., 672) it was held that 
 " the Church should be free from the interference of 
 the courts when there is nothing drawn into question 
 but the jurisdiction of the Church over one of its mem- 
 bers, or ministers, or officers." The same principle was 
 held in Christ Church v. Phillips (5 Del. Ch. Rep., 
 429). The Court declared that " it possessed no power 
 to dictate Ecclesiastical Law, or to decide questions 
 arising thereunder ; nor has it the power or the disposi- 
 tion to invade the legitimate domain of the Church, 
 nor does it possess authority in any manner to amend 
 
THE VESTRY. 177 
 
 or abrogate the laws or canons thereof. It will not 
 attempt to administer its discipline, or to determine 
 Church relations, either of Bishops, Ministers, or mem- 
 bers." 
 
 In Hennesy v. Walsh (15 Am. Lata Reg., 264) there 
 is a note containing a careful review of the decisions on 
 this point, and the rule is well laid down, as follows : 
 " To this extent the cases all agree, that it must be the 
 unlawful infringement of some personal right, of pe- 
 cuniary value, and of a character redressible in the 
 civil courts, in order to justify their interference in 
 matters professedly of Ecclesiastical cognizance." 
 
 In Chase et a/, v. Cheney (58 ///., 509) the Court held 
 that " freedom of religious profession and worship 
 cannot be maintained, if the civil courts trench upon 
 the domain of the Church, construe its Canons and 
 rules, dictate its discipline, and regulate its trials." 
 
 The larger portion of the Christian world has always 
 recognized the truth of the declaration, " A Church 
 without discipline must become, if not already, a 
 Church without religion." If it be true, then, that the 
 Church has authority and power to enact laws for the 
 government of her Clergy and for the regulation and 
 management of her affairs, temporal as well as spiritual, 
 and that the Bishop of a Diocese has the power to 
 dissolve the relation of a Rector to his Parish, acting 
 in accordance with, and in conformity to, the laws and 
 principles of the Church, it is hard to see how it can 
 well be denied that the Bishop has also the authority 
 to require that his consent be first obtained before a 
 Minister of the Church can assume the office of Rector 
 of a Parish in his Diocese, or that the Church possesses 
 the power to enact laws, requiring the Vestry of a 
 
178 LA IV OF THE CHURCH. 
 
 Parish first to obtain the consent of the Bishop of the 
 Diocese before receiving as Rector the Minister whom 
 they may have elected as such. 
 
 After a careful review of the long line of decisions 
 by the courts on Ecclesiastical questions and matters, 
 I am firmly of the opinion that the mere power given 
 by the Statute Law to Vestries to elect a Rector is 
 not an absolute nor an exclusive power, but a power 
 to be exercised subject to the laws and principles of 
 the Church. 
 
 That the courts would so hold is, in my judgment, 
 clearly to be implied from their decisions on analogous 
 questions. 
 
 It would be well, in order to prevent any question in 
 the matter, for the General Convention to enact a Canon 
 declaratory of this true Catholic principle, and requiring 
 that before the election of a Rector by a Vestry shall 
 be complete, the written consent of the Bishop to such 
 election must first be procured. That the General 
 Convention has the power to enact such a Canon, I 
 believe to be beyond doubt, and that the courts would 
 recognize its validity, and decide it not to be in con- 
 flict with Statute Laws giving a Vestry power to elect 
 a Rector, is. in my mind, equally clear. This question 
 was practically decided in the case of The Rector et al. 
 of St. James' Church v. Huntington (82 Hun, 125), in 
 which the Court held that the Canon which requires 
 a Minister to obtain a certificate of transfer from the 
 Bishop of the Diocese before he can officiate as Rector 
 of a Parish in such Diocese, and the Canon authorizing 
 the Bishop to inhibit a Minister from so officiating 
 without such certificate of transfer, were not in conflict 
 with the Statute giving Wardens and Vestrymen 
 
THE VESTRY. l 79 
 
 power to elect and call a Rector, etc., and that such 
 power of election and calling was not absolute. — (See 
 also People ex rel. Peck v. Conley et al., 42 Hun, 98.) 
 
 The election of a Rector being the most important 
 act within the province of a Vestry or Parish, it should 
 be made by a written resolution explicitly stating the 
 amount of his stipend, and when it shall be payable. 
 In most of the Dioceses a majority of votes is sufficient 
 to elect. In a few States, as in New Jersey, the law 
 requires a two-thirds vote to elect. The Secretary or 
 Clerk of the Vestry should be authorized to transmit 
 a copy of the resolution to the Rector-elect. This 
 resolution is the call, and, if accepted, becomes a legal 
 contract, and the salary accruing under it is a debt re- 
 coverable in law. While the Vestry have power to 
 elect a Rector, they have no power to remove him ; 
 the contract is for life and is determinable only by 
 mutual consent, or by the lawful authority, duly exer- 
 cised, of the Bishop of the Diocese. — {Sheldon v. Par- 
 ish, etc., 41 Mass., 281 ; Youngs v. Ransom, 31 Barb. 
 Rep., 49.) 
 
 Nor can the Vestry indirectly remove him by a re- 
 duction of his salary. The right to the salary stipu- 
 lated in the call is a valuable property right secured to 
 the Rector by contract. — {Bird v. St. Mark's Church, 
 etc., 62 Iowa, 567; Worrel v. First Pres. Church, 8 C. E. 
 Green, 96.) 
 
 ORGANIST AND CHOIR. 
 
 The English Ecclesiastical Law gives to the Rector, 
 with the consent of the Ordinary, the employment of 
 the organist and members of the choir ; but if any ex- 
 pense is incurred, there must be a rate levied at a Ves- 
 
i So LA W OF THE CHURCH. 
 
 try meeting of the parishioners. The control of the 
 organist is with the Minister. — {Burn's " Ecc. Law" 
 Vol. I., 374, a, b\ Dales " Clergyman 's Legal Hand- 
 book? 92.) 
 
 It is also the Law of the America n Church. The pres- 
 ent Canon {Canon 45 of the Digest) is obviously a 
 direct incorporation of the principles of the English 
 Ecclesiastical Law on the subject, and gives the exclu- 
 sive control of the music of the Church and the employ- 
 ment of the organist and members of the choir, to the 
 Rector. 
 
 Its language is plain and explicit regarding the 
 Rector's right of employment: " It shall be the duty 
 of every Minister, . . . with such assistance as he 
 may see fit to employ from persons skilled in music," 
 etc. This Canon was first enacted by the General 
 Convention in 1874, not for the purpose of imparting 
 authority to the Clergy, but to make it mandatory upon 
 them to use their prerogative. It directs that the Min- 
 ister, not the Vestry, shall "give order" concerning 
 the music of the Church, and if he sees fit, he — not the 
 Vestry — may employ persons " skilled in music." 
 
 The only fair interpretation of the Canon certainly 
 gives to the Rector the power to employ or appoint the 
 organist and members of the choir. But even if it be 
 argued that the language of the Canon is not clear on 
 this point, and therefore capable of a different inter- 
 pretation, it will not support the contention that the 
 Vestry has the power of employing or appointing the 
 organist and members of the choir. For, in the ab- 
 sence of any Canon of the American Church on a ques- 
 tion relating to the discipline of the Church, the Eng- 
 lish Ecclesiastical Law governs, and that Law, as has 
 
THE VESTRY. 181 
 
 been shown, explicitly gives the employment of an or- 
 ganist and members of the choir to the Rector. 
 
 But should it be contended that the Church has a 
 Canon on the question, only the Canon is indetermi- 
 nate, it may be said in reply, that the courts have uni- 
 formly acted upon the principle, and in many cases 
 have expressly so decided, that when the American 
 Canon Law is indeterminate on any question arising 
 between a Rector and his Vestry relative to their re- 
 spective rights, then the English Ecclesiastical Law 
 must be resorted to for the correct interpretation of 
 such Canon, and the determining of what is the Ec- 
 clesiastical Law governing the Church. 
 
 Interpreted in the light of the English Ecclesiastical 
 Law, the Canon would clearly give the right of the 
 employment in question to the Rector. 
 
 Again, it is a well-settled principle of law that when 
 a statute (and a Canon is an Ecclesiastical Statute) 
 can be construed either in harmony or in conflict with 
 the purpose for which the statute was enacted, only 
 that construction will be sustained which harmonizes 
 with and upholds the purpose sought to be obtained by 
 its enactment. Under this principle, the courts would 
 unquestionably construe the words of the Canon, " It 
 shall be the duty of every Minister, . . . with 
 such assistance as he may see fit to employ from persons 
 skilled in music,to give order," etc., as giving to the Rec- 
 tor, and not the Vestry, the power to employ and ap- 
 point the organist and members of the choir. While the 
 personnel and direction of the choir belong exclusively to 
 the Rector, the terms of employment and the salaries 
 of the organist and members of the choir belong to the 
 Vestry, collectively, to determine, as they only have 
 
182 LA W OF THE CHURCH. 
 
 the power to make such contracts as will affect the 
 revenues or property of the Church. 
 
 In a word, the Vestry may contract for religious 
 services only with such persons as the Rector may 
 select. 
 
 Judge Hoffman (" Ecc. Law of New York," p. 88,) 
 relates a case coming within his own knowledge, in 
 which the question of their relative rights in this mat- 
 ter was discussed by a Rector and the other members 
 of the Vestry, and wherein " an adjustment was made, 
 by which the period of employment, the number of 
 persons to be employed, and the salaries, were deter- 
 mined at a Vestry meeting, and the selection of per- 
 sons and other regulations was left to the Rector." In 
 commenting on this adjustment, he says : " This is the 
 actual, legal, and canonical position ; this, certainly, is 
 the most expedient and Ecclesiastical." 
 
 In the author's opinion, an even more canonical and 
 Ecclesiastical way, one that would give less occasion 
 for friction between a Rector and the other members 
 of the Vestry, would be for the Vestry to make an an- 
 nual appropriation for the music of the Church, leaving 
 the manner of its expenditure and other matters con- 
 nected therewith to the Rector. 
 
 This question of the relative power of the Rector 
 and the Vestry over the music of the Church will be 
 further discussed in the consideration of the Rights 
 and Duties of a Rector. 
 
 rector's consent necessary to the alienation 
 of property. 
 
 The Rector, virtute officii, is not only one of the 
 three integral parts of a Vestry, he is also the head of 
 
THE VESTRY. 1 83 
 
 the corporation. Under the English Ecclesiastical 
 Law, the possession of the churchyard, as well as the 
 church, is in the incumbent. — {Greenslade v. Darby, 
 L. R. 3 Q.B. 4.21; Stocks v. Booth, 1 D.& E. Rep. 428; 
 Burns u Ecc. Law',' 1 Vol. L, /. 377; Crlpp's " Church 
 and Clergy," p. 433.) 
 
 These cases were cited and approved by the Supreme 
 Court of New Jersey in Lyndv. Menzies (33 N.J. L. 
 Rep , 162). In this case the Court decided that the 
 Rector was possessed of the church buildings and 
 grounds, and had the right to a civil remedy if such 
 possession was invaded. 
 
 Judge Hoffman (" Law of the Church" p. 254) says : 
 " By the Common Law, the fee of the glebe and lands 
 of the Church, vested in the incumbent, and of course 
 his union in any alienation was indispensable." Judge 
 Story, in delivering the opinion of the Supreme Court 
 of the United States, in the case of Terrett et al. v. 
 Taylor et al. (9 Crunch, 43), thus states the law: "At 
 a very early period, the religious establishment of 
 England seems to have been adopted in the Colony 
 of Virginia, and of course the Common Law upon that 
 subject so far as it is applicable to the circumstances 
 of that Colony." " The Minister of the Parish was, dur- 
 ing his incumbency, seized of the freehold, in law or in 
 equity, jure ecclesice, and during a vacancy the fee 
 remained in abeyance.' 1 "As incident to their [Vestry- 
 men's] office as general guardians of the Church, we 
 think they must be deemed entitled to assert the 
 rights and interest of the Church. But the Minister 
 also, having the freehold, either in law or in equity, 
 during his incumbency, in the lands of the Church, is 
 entitled to assert his own rights as persona ecclesice. 
 
184 LA W OF THE CHURCH. 
 
 No alienation, therefore, of the Church lands can be 
 made, either by himself, or by the parishioners, or 
 their authorized agents, without the mutual consent of 
 both. And, therefore, we should be of opinion that 
 upon principle no sale ought to be absolutely decreed, 
 unless with the consent of the parson, if the Church be 
 full." In the same case Judge Story again says : " It 
 appears to us that in case of a plenarty of the Church, 
 no alienation or sale of the Church lands ought to take 
 place without the assent of the Minister, unless such 
 assent be expressly dispensed with by some Statute." 
 
 The rule of the Common Law thus stated by Judge 
 Story is undoubtedly the rule in this country, that the 
 Rector of a Church has such interest in, and posses- 
 sion of the real property of the Church, that no sale or 
 mortgage of such property can be made by the Vestry 
 without his assent thereto, unless such assent has 
 been expressly dispensed with by some Statute. 
 
 This principle has been recognized by the courts of 
 many of the States. 
 
 In nearly all the States the law provides that, if the 
 Church be without a Rector, then the same rights and 
 privileges granted to the Rector, Wardens and Vestry- 
 men shall be vested in the Wardens and Vestrymen. 
 This, I apprehend, applies only to the title and the 
 holding and custody of the Church property, and not 
 to the alienation thereof. It is from the Bishop 
 that the Rector receives his power to exercise his 
 rectorial office in a Parish, and on the termination 
 of that rectorship, the power returns to the Bishop. 
 The Office of Institution affirms the Church's claim 
 that the Bishop is the source of authority within his 
 Diocese, and that his permission is necessary before a 
 
THE VESTRY. 185 
 
 Rector can act as such in any Parish within the limits 
 of that Diocese. 
 
 In that Office, the Bishop uses these strong words : 
 " We authorize you to claim and enjoy all the accus- 
 tomed temporalities appertaining to your cure," etc. 
 
 As we shall have occasion to consider more care- 
 fully the Office of Institution when we come to treat 
 of the rights and duties of a Rector, a further consid- 
 eration of that Office at this time is therefore unne- 
 cessary. 
 
 In the Church, power does not ascend from the con- 
 gregation or the Vestry to the Rector; it descends 
 from above to the Bishops, and through the Bishop to 
 the subordinate ministry {Blunts " Book of Church 
 Law" p. 227, et seq.\ Hoffman s u Law of the Church" p. 
 468, et scq.). It is a principle of Ecclesiastical Law 
 that, in case of a vacancy in the Rectorship of a Parish, 
 the Bishop of the Diocese is, ex-officio, Rector of the 
 Parish. — (Blunfs " Book of Church Law" pp. 321, 322.) 
 
 While the question has not been adjudicated upon 
 by the courts in this country, so far as I have been 
 able to find, I cannot but believe that if it came 
 before them, the courts would sustain the conten- 
 tion that the consent of the Bishop was necessary to 
 the alienation of the real property of the Church, in 
 case there was no Rector thereof, and in the absence 
 of any law explicitly empowering the Wardens and 
 Vestrymen of the Church so to act in case of a vacancy 
 in the Rectorship. 
 
 In Maryland the twenty-ninth section of the Vestry 
 Act provides that no Vestry shall sell, alien or transfer 
 any of the property of the Church in case there be no 
 Rector, without the consent of the Bishop. Some 
 
186 LA W OF THE CHURCH. 
 
 similar restriction, which is demanded by every prin- 
 ciple of jurisdiction, ought to be incorporated into the 
 laws of every State in order to remove all questions of 
 doubt in the matter. 
 
 VACANCIES IN A VESTRY. 
 
 Vacancies in a Vestry may be caused by the death 
 of a Warden or Vestryman, a removal from the place, 
 cum animo manendi, or by a written resignation of 
 his office. But a resignation must be accepted by the 
 Vestry before it can take effect and create a vacancy. 
 A Warden or Vestryman cannot resign his office 
 without the consent of the Vestry. — {Connitt et al. v. 
 Dutch Church, etc., 4 Latising, 339; affirmed 54 N. Y. 
 Rep. 551; Doremus v. Dutch Ch., 2 Gr. Chan. {N.J.) 332.) 
 
 The manner of filling vacancies in the Vestry, occas- 
 ioned by death, resignation or otherwise, is regulated 
 by the Statute Law of the State, or the Canon Law of 
 the Diocese. 
 
 In Minnesota and a few other States the law pro- 
 vides that all vacancies must be filled by a special 
 meeting of the Parish, duly called. The law is not im- 
 perative that a special Parish meeting must be called 
 to fill a vacancy whenever occurring, only that if it be 
 deemed advisable to fill such vacancy, then must a 
 special Parish meeting be called so to fill it. The law, 
 in most cases, merely provides how it is to be filled, 
 not that it must be filled. 
 
 Such special meeting must be duly called, and in the 
 same manner as an annual meeting is called, unless the 
 law contains some provision to the contrary. The 
 notice should explicitly state the purpose for which the 
 meeting is called. This meeting is subject to the same 
 
THE VESTRY. ilj 
 
 rules as to the manner of conducting it, and the quali- 
 fications of voters, as govern the annual meetings. 
 
 In the majority of the States and Dioceses the law- 
 gives to the Vestry the power to fill all vacancies in its 
 own body, provided, of course, the remaining mem- 
 bers constitute a majority of the Vestry. Should there 
 remain a less number of Vestrymen than was neces- 
 sary to make a quorum, no legal meeting of the Vestry 
 could be had to fill the vacancies. 
 
 In some Dioceses provision is made that, in such 
 cases, the Bishop of the Diocese may call a special 
 meeting of the Parish, to elect a Vestry to serve until 
 the next annual election. Where no provision is 
 made by Statute or Canon for such cases, the Rector 
 would probably have the right to call a special Parish 
 meeting to fill such vacancies, and a meeting so 
 called, and duly conducted, would undoubtedly be held 
 to be a legal meeting, with power to act in the matter. 
 
 CHANGE IN NUMBER OF VESTRYMEN. 
 
 With few exceptions, the Law, Statute,or Canon, in the 
 different States or Dioceses fixes the minimum and 
 maximum number of Vestrymen which a Parish may 
 elect. 
 
 Should a Parish desire for any reason to increase or 
 decrease the number of its Vestrymen, it may do so, 
 provided the number be not increased or decreased be- 
 yond the maximum or minimum limit fixed by law. 
 When not otherwise provided for by law, the mode of 
 procedure should be as follows : 
 
 The Vestry, at a regular meeting thereof, may adopt 
 a resolution to change the number of Vestrymen to 
 any certain number within the limits fixed by law. 
 
1 88 LA W OF THE CHURCH. 
 
 This resolution, or the substance thereof at least, must 
 be incorporated in the notice of the next annual Parish 
 meeting ; the notice must also further state that such 
 resolution will be submitted to the voters of the 
 Parish at such meeting for their adoption or rejection. 
 If the resolution be adopted by a majority of the legal 
 voters at such annual meeting, a certificate must be 
 made setting forth the resolution in full, that it was 
 adopted at a regular meeting of the Vestry, a majority 
 being present and voting therefor, that notice was duly- 
 given at the time of the annual meeting of the Parish, 
 that said resolution would, at that time, be submitted 
 to the qualified voters thereof for their approval or re- 
 jection, and that at the meeting held in pursuance of 
 such notice, the said resolution was adopted by a ma- 
 jority of the qualified voters present. 
 
 As this certificate is an amendment of the original 
 certificate of incorporation, it must be signed and ac- 
 knowledged in the same manner as required for the 
 original certificate. 
 
 This certificate must be filed with the same officer 
 with whom the law directs the original certificate to be 
 filed. The proposed change in the number of Vestry- 
 men is effected upon the filing of the certificate. In 
 those States where the law does not require the original 
 certificate to be filed, the certificate of amendment 
 need not, of course, be filed. In Kentucky the law- 
 provides that the Vestry may, by a two-thirds vote, 
 amend the Charter, by filing and recording the 
 amendment, in the same manner as provided for the 
 original Charter or Certificate of Incorporation. 
 
 In those States where the original Charter is 
 granted by the court, the law provides that the 
 
THE VESTRY. 189 
 
 Charter may be amended by the court. In such 
 States a petition should be presented by the Vestry 
 to the court, praying- for an order to amend the Char- 
 ter as desired. This order, when made by the court, 
 must then be filed as the law directs, and when so 
 filed the amendment becomes effective. 
 
CHAPTER IV. 
 
 OF VESTRY MEETINGS. 
 
 THE law of the English Church provides that 
 Vestry meetings must be called by the Rector, 
 or by the Church Wardens with his consent. 
 — {Dales "Clergyman's Legal Hand- Book" pp. 107, 108. 
 Queen v. DOyly, 4 Perry and Davidson s Rep., 52.) 
 
 In the American Church the calling of Vestry meet- 
 ings is, in nearly every case, regulated by Statute or 
 Canon Law, which recognizes the right of the Rector 
 to call meetings of the Vestry at such times as he may 
 deem expedient. 
 
 In a few States the Wardens, or a certain number 
 of the Vestrymen, are given like power with the Rec- 
 tor to call meetings of the Vestry. In the State of 
 Michigan the Rector may call a Vestry meeting, by 
 giving due notice thereof on the preceding Sunday, or 
 a Vestry meeting may be called by a notice in writing 
 signed by the Rector, either Warden, or any two Ves- 
 trymen, served upon each member. 
 
 In many of the States and Dioceses the law pro- 
 vides that the Rector shall call a Vestry meeting at 
 the request of the Wardens, or of a certain number of 
 the Vestrymen. 
 
 In the Virginia Dioceses and a few others, the law 
 also provides that in case the Rector fail to call a 
 Vestry meeting when so requested by a certain num- 
 ber of Vestrymen, such Vestrymen, if they deem it 
 necessary, may themselves call a meeting. In case of 
 
VES TR Y MEE TINGS. 191 
 
 a vacancy in the Rectorship, the law usually provides 
 that the Wardens may call meetings of the Vestry. 
 In the absence of any law giving Wardens or Vestry- 
 men the power to call a Vestry meeting, the Rector 
 alone, if there be a Rector, has such power. But a per- 
 emptory writ of mandamus will lie to compel a Rector 
 to call a Vestry meeting for the purpose of issuing a 
 call for a special Parish meeting to fill vacancies in a 
 Vestry, where the law provides that "the Vestry shall 
 order a special election to fill such vacancies." — {St. 
 Stephen's Church Cases, 25 Abb. N. C, 230.) 
 
 But such a writ will not lie to compel a Rector to 
 call a Vestry meeting, when the calling thereof lies 
 wholly within his discretion. 
 
 A writ of mandamus will not lie to control discre- 
 tion. — {Fowler v. Pierce, 2 Cat., 165; Berry man v. Per- 
 kins, 55 Cal., 483; Union Colony v. Elliott, 5 Col., 371; 
 Ex parte School Directors, etc., 5 Clark [Pa.~\, 400.) 
 
 NOTICE. 
 
 The English Ecclesiastical Law requires " three days 
 to intervene between the Sunday and the day of meet- 
 ing." — {Dale's "Clergyman's Legal Handbook," p. 108; 
 Cripp's "Law of the Clergy" 6th Ed., p. 682; Reg. v. 
 Best, 16 L.J. , M. C, 102.) 
 
 Three days' notice of a Vestry meeting is required 
 by the Statute or Canon in the majority of the Dio- 
 ceses. In the absence of any Statute or Canon on the 
 question, a three days' notice would be in compliance 
 with the English Law, and would undoubtedly be held 
 to be sufficient. 
 
 The manner in which the notice must be given is 
 regulated in most cases either by the Statute or Canon 
 
19* LA W OF THE CHURCH. 
 
 Law, or by the by-laws of the Parish. Unless other- 
 wise provided by law, the meeting must be called 
 under the hand of the Rector, or by a personal notice 
 given by him to each member. A notice given by the 
 Rector in time of Divine Service would be sufficient, 
 provided all the members were present at the service 
 when the notice was given, or a personal or written 
 notice given to those members who were not so pres- 
 ent. It would, no doubt, be a sufficient compliance 
 with the law requiring the notice to be given under 
 the hand of the Rector, if the Rector, in writing, should 
 authorize the Secretary or Clerk of the Vestry to call 
 a meeting thereof. 
 
 In the Diocese of Kansas City the Canon requires 
 that "notice of all meetings of the Vestry shall be given 
 by the Secretary, in writing, or publicly by the person 
 officiating at some service preceding the meeting." 
 
 In New Hampshire the Canon provides that " no 
 meeting of the Vestry shall be had unless at least 
 three days' notice has been given by the Clerk, at the 
 request of the Rector or one of the Church Wardens." 
 
 The notice may be sent by mail, and the law will 
 presume the receipt thereof by the person to whom it 
 was properly addressed. — {Oregon S. S. Co. v. Otis, ioo 
 N. Y., 446.) 
 
 But should the person to whom the notice was sent 
 not receive it, the meeting would not be legal unless 
 he be present. 
 
 A few Dioceses, as Alabama and Nebraska, provide 
 for quarterly meetings of the Vestry. A Vestry may 
 also, by by-law or resolution, determine upon stated 
 days for regular meetings of the Vestry. Of such 
 meetings the members of the Vestry are chargeable 
 
VESTRY MEE TINGS. 193 
 
 with notice. — (Smith v. Lazv, 21 N. Y. R. t 296; Will- 
 cock on Corp., Part I., sec. iv., clause 59.) 
 
 If, however, any business of moment is contemplated 
 at such meeting, it would be advisable to give notice 
 thereof, in order to prevent any question as to the legal- 
 ity of the meeting. A Vestry meeting would be legal, 
 even though no notice thereof was given, provided 
 every member of the Vestry be present, and proceed 
 without objection to the transaction of business. The 
 object of the notice being simply to apprise the mem- 
 bers of the Vestry of the meeting in order that they 
 may attend and exercise their rights, its necessity is 
 waived if they be present. — (People v. Peck, 11 Wen- 
 dell, 604.) 
 
 Also, if some of the Vestry be notified, and others 
 not, a legal meeting may be had, provided every mem- 
 ber who was not notified is present. But no legal 
 meeting of a Vestry can be had, if any member thereof 
 who was not duly notified, be absent. 
 
 QUORUM. 
 
 In a few of the States and Dioceses, the quorum at 
 a Vestry meeting is regulated by the Statute or Canon 
 Law. In New Hampshire it is required that the Rec- 
 tor or one Warden, and a majority of the Vestrymen 
 must be present to constitute a quorum. 
 
 In the Dioceses of Chicago and Springfield the 
 Canons provide that no meeting of a Vestry shall be 
 held to be valid in which there shall not be present 
 either the Rector or one Warden. 
 
 In Michigan the Statute Law provides that " a ma- 
 jority of the Vestrymen elected shall constitute a 
 
i 9 4 LA W OF THE CHURCH. 
 
 quorum for the transaction of business." The New 
 York Statute provides that in order " to constitute a 
 quorum of the Vestry there must be present either : 
 
 " i. The Rector, at least one of the Church Wardens, 
 and a majority of the Vestrymen, or 
 
 " 2. The Rector, both Church Wardens and one less 
 than a majority of the Vestrymen, or 
 
 " 3. If the Rector be absent from the Diocese and 
 shall have been so absent for over four calendar months, 
 or if the meetings be called by the Rector, and he be 
 absent therefrom, or be incapable of acting, one Church 
 Warden and a majority of the Vestrymen, or both 
 Church Wardens and one less than a majority of the 
 Vestrymen." 
 
 This Statute is based on the true principles of Eccles- 
 iastical Law, that in order to constitute a legal Vestry 
 meeting there must be present the Rector (if there be 
 one), a Warden, and a majority of the Vestrymen. 
 " There are thus three integral parts of the body, which 
 personally, as in the case of the Rector, or by repre- 
 sentation, as in the cases of the Wardens and Vestry- 
 men, must attend." — {Hoffman s " Ecc. Law," p. 71; 
 Humplireys " Law of the Church" p. 41.) 
 
 It is a well-established principle not only of English, 
 but of American Law, that where a corporation consists 
 of two or more definite, integral parts, there must be 
 a majority of each integral part present, in order to 
 constitute a corporate assembly of the whole, and with- 
 out any one of which the corporation would not be 
 complete, although none of them are by themselves a 
 corporation. — (Rex v. Belhinger, 4 Durn. & East. Rep., 
 810; Rex v. Miller, 6 Durn. & East. Rep., 268; Rex v. 
 Thornton, 4 East., 294; Rex v. Buller, 8 East., 389; Rex 
 
VESTRY MEE TINGS. 195 
 
 v. Morris, 4 East., 17; Angel & Anus on Corp., \\tk 
 Ed., sec. 97; 3 Thompson, Corp., stc. 3916.) 
 
 In Waterman's " Law of Corporations" ( Vol. I., sec. 6%, 
 p. 222), the law is thus stated : " It has been held, when 
 the corporation is composed of several distinct parts or 
 classes of persons, every integral part must be repre- 
 sented at a corporate meeting by a majority at least of 
 its proper members, although the major part of all 
 present when assembled are competent to do a cor- 
 porate act." 
 
 In University of Md. v. Williams (9 Gill&f., 365), it 
 was held that a corporation cannot be considered as 
 composed of distinct, definite, integral parts, unless the 
 number of the members of each class is definite ; but 
 when it is so composed, a majority of the members of 
 each class is necessary to constitute a corporate meet- 
 ing or assembly. 
 
 In the case of St. Mary's Church (J Serg. & R., 517), 
 the trustees of which consisted of three clerical and 
 eight lay members, the Court held that " every integral 
 part must be present at a corporate assembly, by a 
 majority at least of its proper members ; though the 
 major part of all present when assembled are compe- 
 tent to do a corporate act." This case was cited and 
 approved in Craig v. First Fres. Church, etc., (88 Fa. 
 St. Rep., 42), the opinion of the Court being: "When a 
 corporation is composed of several integral parts, and 
 each part consists of a definite number, a majority of 
 each part must be present to constitute a quorum." — 
 (See also Ex parte Rogers, 7 Cow. \_N. Y.~], 526 note; 
 Whiteside v. People, 26 Wend., 634.) 
 
 The rule laid down by the Court in the case of St. 
 Mary's Church, above cited, applies to and governs the 
 
I 9 6 LA W OF THE CHURCH. 
 
 meetings of Vestries, unless otherwise provided for by 
 law. A Vestry is a corporation composed of three 
 distinct, definite, integral parts, each necessary to make 
 the corporation complete, although none of the parts 
 are by themselves a corporation. The title of the cor- 
 poration, and the form of citing it, " the Rector, War- 
 dens and Vestrymen," plainly evidence the three inte- 
 gral parts thereof, the Rector, the Wardens, and the 
 Vestrymen. Each part is composed of a definite 
 number; no one part is a corporation by itself; and 
 each part is necessary, when there is a plenarty in the 
 Vestry, to complete the corporation. Under the well 
 settled rule of law governing corporations composed 
 of several definite, integral parts, to constitute a legal 
 meeting of the Vestry in those States where the law 
 does not provide otherwise, there must be present the 
 Rector, when there is one, one Warden, and a majority 
 of the Vestrymen. That the courts would so hold if 
 the question came before them, is a conclusion amply 
 warranted, in the author's opinion, by their decisions 
 in analogous cases. 
 
 The presence of the Rector to constitute a legal 
 meeting of the Vestry is made necessary by the 
 Statute or Canon Law, in several of the Dioceses. In 
 such cases the Statute or Canon is simply declaratory 
 of the general principle of law, that in a corporation, 
 where there is a particular person who is called the 
 head, such person forms one of the integral parts of 
 that corporation, and his presence is necessary to con- 
 stitute a legal meeting thereof. — {Angel & Ames on 
 Corp., sees. 97, 503; Case of St. Marys Church, 7 Serg. 
 and R. [Pa.], 517; Queen v. UOyly, 4 Perry and 
 Davidson s Rep., 52; Baker et al. v. Wood, 1 Curteis, 507.) 
 
VESTRY MEE TINGS. 1 9 7 
 
 The Rector is always described as the first, and as an 
 integral part of the Parish. In citing a Parish he is 
 specially named. He is the "rector parochiae" the 
 "prases ecclesiasticus." "On sound, legal principles 
 he is the head and prases of the meeting." — ( Wilson v. 
 M'Math, 3 Phill. Rep., 67; Phillimores "Ecc. Law" 
 [2nd. Ed. 1895],/. 1497.) 
 
 In Cripp's "Lazu of the Clergy' {6th Ed., p. 684) it is 
 stated : " The Vestry thus constituted is incomplete 
 without its head or president, and he, as we have seen 
 by the Common Law, is the Minister of the Parish, 
 whether Rector, Vicar, or perpetual Curate; and it has 
 been said that he has a special duty to perform, and 
 must be responsible to the Bishop for his care therein." 
 
 To constitute a legal meeting of the Vestry there 
 must be present, as we have shown, not only the Rec- 
 tor, and at least one of the Wardens, but also a ma- 
 jority of the Vestrymen, that is, a majority of the full 
 number of Vestrymen which the Parish is entitled to 
 elect, not a majority merely of those remaining in 
 office. " The words, a majority of the Vestrymen, 
 evidently mean a majority of the number which the 
 Statute requires to compose the Board of Trustees; not 
 of the number to which, honestly or otherwise, by de- 
 sign or accident, the body of Vestrymen may have 
 been reduced." — {Moore v. Rector, etc., 4 Abb. N. C, 
 51; Angel & Ames on Corp., sec. 503; Rex v. Morris, 4 
 East., 17; Rex v. Thornton, Ibid., 294; Rex v. Miller, 6 
 Durn. & East. Rep., 268.) 
 
 RIGHTS AND DUTIES OF THE PRESIDING OFFICER. 
 
 The Rector, when present, has the undoubted right 
 as theprceses ecclesiasticus, to preside at all meetings of 
 
198 LA W OF THE CHURCH. 
 
 the Vestry. It is only in his absence that a Warden 
 has any right to preside. 
 
 While the Rector has the right to preside, he has no 
 right to adjourn the meeting when it has once been 
 convened. This right belongs to the meeting itself, of 
 which the Rector is but one member. — {Hoffman's 
 " Ecc. Law," p. 75.) 
 
 In Stonghton v. Reynolds (2 Strange, 1045), the ques- 
 tion arose as to whether a Rector could, ex mero motu, 
 adjourn an election without the consent of the meet- 
 ing, and the Court decided that such an adjournment 
 was void, and that while the Rector had the power of 
 presiding, it did not follow therefrom that he possessed 
 any power to adjourn the election. 
 
 In Baker & Downing v. Wood (1 Cartels' Rep., 507), 
 the Court in commenting on the above case, said : 
 " Most undoubtedly, in such circumstances, there is no 
 authority for the power assumed and exercised by the 
 chairman in that case." 
 
 Judge Hoffman, after reviewing the decisions of the 
 courts on this question, says ("Ecc. Law" pp. yy, 78), 
 " It follows from these principles and authorities, as I 
 apprehend, that a Rector cannot, by withdrawing from 
 a Vestry once duly constituted, prevent its finishing 
 business entered upon, or from entering upon business." 
 And again : " Upon the whole, I consider the true 
 conclusion to be, that when once a Vestry is fully 
 assembled, a Rector, a Warden and five Vestrymen 
 [that number being a majority of the Vestrymen then 
 provided by Statute in the State of New York], it 
 becomes a massed assembly, governing itself by the 
 rules of Common Law in analogous cases; that the 
 right of presiding is a privilege and a duty. If vacated 
 
VES TR Y MEE TINGS. 199 
 
 wilfully or not from necessity, it cannot dissolve the Ves- 
 try, or make its action illegal." The same rule would, 
 of course, apply to the withdrawal of a Warden or a 
 
 Vestryman. 
 
 CASTING VOTE. 
 
 Whether, in the absence of any law restricting the 
 right of the Rector to vote, or giving to him but one 
 vote, the Rector has the right, first, to vote as a mem- 
 ber of the Vestry, and then, in case of a tie, to give 
 the casting vote, is a question not wholly free from 
 doubt. But there is no doubt that in those States and 
 Dioceses where the law merely states that the Rector 
 shall have "a casting vote," he also has the right to 
 vote, first as a member of the Vestry, and then give a 
 casting vote in case of a tie. — {Cripp's " Law of the 
 Church and Clergy',' p. 692; Blunt 's "Book of Church 
 Law'' p. 302 ; Dale's " Clergyman's Legal Handbook," 
 p. 122; Queen v. D'Oyly, 4 P. & D. Rep., 52.) 
 
 Judge Hoffman states (" Ecc. Law," pp. 79, 80) that 
 the clause of the Statute respecting the casting vote 
 was examined in the case of the Church of the Atone- 
 ment in 1866. The facts in the case were as follows: 
 At a meeting of the Vestry of the Church named, there 
 being no Rector, the Senior Warden was called to the 
 chair. A resolution was offered to call a certain cler- 
 gyman to the Rectorship of the Parish. Five of the 
 Vestry voted in the affirmative, and five, including the 
 presiding officer, voted in the negative, whereupon 
 that officer declared the resolution lost. It was claimed 
 that the presiding officer had no right to vote under the 
 Statute giving a " casting vote" to such officer, except 
 upon an equal division of the votes, not including his 
 
200 LA W OF THE CHURCH. 
 
 own, and therefore, that the resolution offered was car- 
 ried. The question was referred to Judge Hoffman for 
 his opinion, which was, in part, " that by the true con- 
 duction of the Statutes, a Warden, by presiding, did not 
 lose his privilege of voting as a member ; and the phrase 
 in the Statute therefore meant a casting vote in the sense 
 of a double vote. Numerous authorities were cited." 
 The question came before the Supreme Court, and is 
 fully reported in the case of People ex rcl. Remington 
 v. Rector, etc. (48 Barb., 603). The Court in rendering 
 its decision therein said : " The question then is, 
 What is the legal signification and effect of the phrase 
 'and have the casting vote'? Does the calling a 
 Church Warden to the chair annul, for the time being, 
 his right as a constituent member of the corporate 
 body, or absolve him from the execution of any trust 
 or duty devolved upon him as such member?" After 
 stating that no authority for such a proposition was 
 cited, except Cushing's " Parliamentary Practice" the 
 Court proceeded : "As a majority of the Vestry did 
 not vote in favor of calling the relator, he was not, 
 therefore, called or elected, unless the Statute, giving 
 the chairman a casting vote, is to be construed as 
 meaning a vote only in case of a tie arising upon the 
 votes of the other members. 
 
 "The plain reading of the Statute does not admit of 
 such a construction. It first vests the power of elec- 
 tion in a body of which the chairman is a constituent 
 member. This is a grant to every such member of a 
 right to vote. It then contains another grant of power 
 to the presiding officer, virtute officii, in the words, ' he 
 shall have the casting vote.' 
 
 " What is the legal effect of the latter grant ? By the 
 
VES TK Y MEE TINGS. 201 
 
 Common Law, a casting vote sometimes signifies the 
 single vote of a person who never votes but in the case 
 of an equality; sometimes the double vote of a person 
 who first votes with the rest, and then, upon an equal- 
 ity, creates a majority by giving a second vote, (i BL 
 Com. 181, n; Jac. Law Die. Parliament, 7.) I think 
 that in the Statute under consideration the term • cast- 
 ing vote' is used in the latter sense." — (1 BL Com. 478, 
 n; Cowp., 377.) 
 
 This opinion of the Court is in complete accord with 
 Ecclesiastical Law and usage, and clearly establishes 
 the right of the Rector as the presiding officer to vote 
 first as a constituent member of the Vestry, and then, 
 in case of a tie, to give a casting vote. 
 
 Where the law expressly states, as in the Diocese of 
 Pennsylvania, that the Rector shall have one vote, he 
 has no right to a casting vote if he has already voted 
 upon the question as a member of the Vestry. — {Neil- 
 son's Appeal, 105 Pa., St. Rep., 180.) 
 
 It is the duty of the Rector, or other presiding officer, 
 to submit to the Vestry every question presented for 
 their consideration. Of his obligation to do so there 
 can be no doubt, provided the proposition be one that 
 is properly within the province of the Vestry to act 
 upon. 
 
 "It is, on the other side, clear," says Judge Hoffman 
 (" Ecc. Law" pp. 78, 79), " that he is not bound to put 
 questions or resolutions tending to censure or crim- 
 inate himself. When acts or resolutions are proposed 
 hostile to the Rector, as under the Canon respecting a 
 dissolution of the connection, or where a Vestry is 
 authorized to present, the body acts of necessity as 
 Warden and Vestrymen, not as the strict integral 
 
202 LA W OF THE CHURCH. 
 
 body. (See Hoffman's "Law of the Church" pp. 323-25.) 
 There may possibly be resolutions of neither character, 
 as to which good sense and mutual forbearance must 
 be the guide." 
 
 BUSINESS: HOW CONDUCTED. 
 
 To perform any valid act there must be present a duly 
 constituted quorum of the Vestry. A less number can 
 transact no legal business; although business transacted 
 by less than a quorum of a Vestry would, no doubt, be 
 held to be legal if such business was formally ratified 
 and approved at a subsequent meeting when the re- 
 quired quorum was present, provided that such busi- 
 ness was only current and ordinary business, not affect- 
 ing property or rights. 
 
 While the presence of the Rector, if there be one, a 
 Warden and the majority of the Vestrymen is neces- 
 sary to constitute a legal Vestry meeting, yet, when 
 so assembled, the integral features become lost, and 
 the members constitute one body, and are then upon 
 an equality of power as to every corporate purpose, 
 each member having one vote, save that the presiding 
 officer has a casting vote, except in those States or 
 Dioceses where the law expressly provides otherwise. 
 
 In the case of St. Marys Cliurch (7 Serg. & R., 517) 
 before cited, the Court held that while each integral 
 part must be represented to form a valid meeting, yet, 
 when legally assembled, the majority of voices must 
 govern, and were competent to do a corporate act. 
 
 (See also Bick v. Hanscon 9 Foster \_N. H.~\ Rep., 213 ; 
 Whiteside v. People, 26 Wendell, 633 ; Ex parte Rogers, 7 
 Coweris Rep., 526, note; King v. Bower, 1 Barn. & 
 Cress., 492 ; King v. Miller, 6 Dnrn. & East. Rep., 268.) 
 
VESTRY MEE TINGS. 403 
 
 It has already been shown that after the meeting has 
 once been organized, the withdrawal of the Rector or 
 any other member of the Vestry cannot prevent the 
 Vestry from finishing the business then under consid- 
 eration, or even from entering upon new business. 
 Were it otherwise, any member of the Vestry, or a mi- 
 nority thereof, would by withdrawing be able substan- 
 tially to exercise a veto upon the action of the major- 
 ity. — {Hoffman's " Ecc. Law" p. 77.) 
 
 While a Vestry have the power to elect a Rector, and 
 to give their consent to the dissolution of the rector- 
 ship, they have no power whatever to investigate any 
 charges that may be made against him, nor, as we have 
 already shown, have they any power to dismiss him, or 
 to reduce his salary. They cannot as a Vestry formu- 
 late charges against him to the Bishop or Ecclesias- 
 tical authority of the Diocese, unless they are expressly 
 authorized to do so by the law of the Diocese. As 
 this question will be more fully examined in the suc- 
 ceeding chapter, a further consideration thereof at this 
 time is unnecessary. 
 
 It is the duty of Wardens and Vestrymen, when 
 they have received due notice of a Vestry meeting, 
 regularly called, to attend such meeting. Should they 
 persist in refusing so to attend, the law will compel 
 them, at the instance of the Rector, to attend, provided 
 it is shown that the meeting desired is necessary, and 
 their presence required to constitute a quorum. 
 
 " A mandamus will lie to compel Vestrymen to at- 
 tend duly called meetings of the Vestry, where it is 
 shown that they intentionally absent themselves ; that 
 such meetings are necessary and cannot be held in 
 their absence, and motion for the writ may properly be 
 
204 LA W OF THE CHURCH. 
 
 made by the Rector." — {People ex rel. Kenney v. Wu 
 nans, 29 St. Rep. {N. Y.\ 651.) 
 
 WHEN MEETINGS ARE LEGAL WITHOUT THE PRESENCE 
 OF THE RECTOR. 
 
 It is hardly necessary to state that, when there is no 
 Rector, the Wardens and Vestrymen constitute a le- 
 gal Vestry, and have power to perform any corporate 
 act, except that no valid action can be taken to alien- 
 ate or impair the title to the Church property without 
 the consent of the Bishop. It seems to be the better 
 opinion that if the Rector call the meeting under his 
 hand, such meeting would be legal, even though the 
 Rector was not present. It is also provided by law in 
 some of the States and Dioceses that if a Rector be 
 absent from the State or Diocese a certain length of 
 time, as may be designated by Statute or Canon, the 
 Vestry may meet in legal meeting, but in no case, when 
 the Rector is not present, can the Vestry take any ac- 
 tion to dispose of any of the real property of the Par- 
 ish, or any part of the capital or principal of its per- 
 sonal estate, or impair in any way the rights of the 
 Rector. 
 
 In New York State there is a Statute to this effect. 
 To the same effect is the Statute Law in Maryland, 
 except that the Vestry may authorize the sale of real 
 property when the Rectorship is vacant, with the con- 
 sent of the Bishop. It is unnecessary to consider the 
 Statute Laws of the various States which govern a Rec- 
 tor's relation to his Vestry. It is sufficient to say that 
 when the Statute Law provides for the holding of Ves- 
 try meetings, and also provides what shall constitute 
 a legal Vestry meeting, such provisions of course 
 
VESTRY MEE TINGS. *>5 
 
 govern, and form, so far as they expressly provide, 
 but no further, the absolute law both for the Rector, 
 and for the Wardens and Vestrymen. 
 
 In some States and Dioceses, the law provides that 
 a Warden or, in a few cases, that a certain number of 
 the Vestrymen may call a meeting. But if the Rec- 
 tor should, for any reason, refuse to attend a meeting 
 so convened, what redress, if any, could be had ? 
 
 Judge Hoffman in considering this question ( u £cc. 
 Law," p. 78) says: " In the English cases, in which the 
 power to convene is lodged in a head officer, and his 
 presence is indispensable to constitute the body, his 
 obstinate refusal to convene it, or to attend, is an abuse 
 of power, a neglect of a trust which the King's Bench 
 will punish, and compel him to do it by mandamus, and 
 will allow a criminal information to be filed against 
 him." — (See also, Willcock on Corp., Part I., p. 29 ; Rex. 
 v. Gaborian, 11 East.,']'] note ; Rex. v. Church Wardens, 
 etc., of St. Martin's, j Barn. & Adolp., 907; Rex. v. 
 Church Wardens of St. Bartholomeivs, 2 Barn. & Adolp., 
 506.) 
 
 Under the decisions of the English Courts, and also 
 of our own Courts {People ex rel. Kenney v. Winans 
 et al., 29 St. Rep. \N. K], 651; St. Stephens Church 
 Cases, 25 Abb. N. C, 230, before cited), if it was shown 
 that a meeting was necessary for the best interests of 
 the Church, that such meeting could not be held with- 
 out his presence, and that he refused to attend any 
 such meeting, after being informed of the subject to be 
 considered, a writ of mandamus might lie to compel 
 his attendance, although the question is not wholly 
 free from doubt. 
 
 If it could be shown that the Rector had any discre- 
 
206 LA W OF THE CHURCH. 
 
 tionary power in the matter, unquestionably, no writ 
 would lie. {High's Ex. Rem., Sec. 42; Moses on Mand., 82 ; 
 State v. Kendall, 1 5 Neb. 262, and cases therein cited.) 
 Doubtless the refusal of a Rector to be present and 
 preside at a Vestry meeting, deliberately persisted in, 
 after he had received notice of the meeting, and of the 
 business proposed to be transacted, would afford 
 ground for an application to the Ecclesiastical Author- 
 ity of the Diocese for a dissolution of the rectorship, 
 under the Canon. 
 
CHAPTER V. 
 
 OF THE RECTOR. 
 
 HIS ELECTION AND CALL. 
 
 TO the Wardens and Vestrymen of a Church 
 belongs, as we have already shown, the power 
 of electing and calling a Rector. The con- 
 gregation or parishioners have no power whatever in 
 the matter, unless such power be expressly conferred 
 upon them by Statute. 
 
 The proceedings of a Vestry relative to the election 
 and call of a Rector have already been commented 
 upon, and need no further consideration, except to 
 state, by way of emphasis, that the call, being a legal 
 contract, and the salary accruing thereunder a debt 
 recoverable in law, it should be made in writing, and 
 state explicitly the stipulations for support. 
 
 On the acceptance of the formal call by the Rector- 
 elect (which acceptance should also be in writing) and 
 the reception of the Bishop's consent to such election, 
 which consent should have been previously obtained, 
 the contract between Vestry and Rector is complete. 
 
 While Vestries have the power, under the Statute 
 Law, of electing the Rector of the Parish, they should 
 ever remember, as it has been well said, that " this 
 elective right of a Parish does not make the man whom 
 they elect their servant ; nor does it make them inde- 
 pendent of and above him, to treat him as they please, 
 as they would any hired man. It is only the popular 
 
ao8 LA W OF THE CHURCH. 
 
 voice, speaking through their representative organ, 
 declaring whom they will have to be their Rector; but 
 he whom they choose is a Priest of God, a servant of 
 Jesus Christ, and is to be set over them by the Holy 
 Spirit. He is the bearer of a Divine commission to 
 them, not they to him. He is charged with the full 
 responsibility of their souls. He comes freighted with 
 Divine blessings over and above anything the people 
 can give. They elect him to exercise his functions 
 and ministry in a particular field. The vote designates 
 the field, and may be regarded as the ' lot cast into the 
 lap'; but the vote does not make the Priest, it only 
 accepts him as such, and limits the discharge of his 
 duties within the particular Parish." 
 
 The Canons of the Church {Canon 15, Sec. Hi.) re- 
 quire that on the election of a Minister into any 
 Church or Parish, the Wardens thereof shall give no- 
 tice to the Ecclesiastical Authority of the Diocese 
 of such election. This notice may be in the following 
 
 form : 
 
 " We, the Church Wardens {or, in case of an Assistant 
 Minister, We, the Rector and Church Wardens), do 
 certify to the Right Rev. {naming the Bishop), or to the 
 Rev. {naming the President of the Standing Committee), 
 that {naming the person) has been duly chosen Rector 
 {or, Assistant Minister, as the case may be) of {naming 
 the Parish or Church)." 
 
 This certificate must be signed by the Wardens, and 
 in case of an Assistant Minister, by the Rector. The 
 Bishop or the Standing Committee, being satisfied that 
 the person so chosen is a qualified Minister of the 
 Church, shall cause the said certificate to be transmitted 
 to the Secretary of the Convention for record. 
 
THE RECTOR. 209 
 
 LETTERS OF TRANSFER. 
 
 If the Rector-elect be canonically resident in another 
 Diocese than the one in which the Parish so electing 
 him is situated, he must first procure from the Bishop 
 or other Ecclesiastical Authority of the Diocese in 
 which he last resided a testimonial setting forth his 
 true standing and character. This testimonial must 
 be presented by the Rector-elect to the Ecclesiastical 
 Authority of the Diocese to which he proposes to re- 
 move, as directed by Canon. 
 
 The testimonial may be in the following words : 
 " I hereby certify that A. B., who has signified to me 
 his desire to be transferred to the Ecclesiastical Au- 
 thority of , is a Presbyter [or Deacon] of , 
 
 in good standing, and has not, so far as I know or 
 believe, been justly liable to evil report, for error in 
 religion, or viciousness of life, for three years last 
 past." 
 
 This Letter Dimissory, as it is called in the Canon, 
 must be presented by the applicant to the Bishop or 
 Ecclesiastical Authority of the Diocese named therein 
 within six months from the date of its transmission. 
 If not so presented, it becomes wholly void. It is 
 made the duty of such Ecclesiastical Authority to 
 accept the said Letters within three months from its re- 
 ception, unless the Bishop or Standing Committee 
 should have heard rumors, apparently well founded 
 and sufficient to form a proper ground of canonical in- 
 quiry and presentment, against the character of the 
 Minister named therein ; in which case, the Ecclesias- 
 tical Authority shall communicate the same to the 
 Ecclesiastical Authority of the Diocese to which such 
 
210 LA W OF THE CHURCH. 
 
 Minister belongs. And unless and until the said 
 Minister be exculpated from the said charges, the 
 Ecclesiastical Authority is not required to accept the 
 Letters Dimissory. 
 
 The duty of the Bishop to accept such Letters 
 Dimissory applies only to a letter presented by a 
 Minister who has been called to take charge of a Parish 
 or Congregation in his Diocese. The acceptance of any 
 Letters Dimissory presented by a Minister not so called 
 is left by the Canon to the discretion of the Bishop, 
 who may or may not accept it, according as he sees fit. 
 
 When such Letters are accepted, it is made the duty 
 of the Ecclesiastical Authority accepting to give to 
 the Minister named therein a certificate in the words 
 following : 
 
 "I hereby certify that the Rev. A. B. has been ca- 
 nonically transferred to my jurisdiction, and is a Min- 
 ister in good standing." 
 
 Until he has received such certificate, the said Min- 
 ister has no right to officiate as the Rector, Stated 
 Minister, or Assistant Minister of any Parish or Con- 
 gregation of the Diocese or District to which he re- 
 moves. The Canon also provides that no Minister 
 residing in a Diocese to which he has not been canon- 
 ically transferred shall minister therein without the 
 license of the Bishop. 
 
 The Bishop accepting the Letters Dimissory is re- 
 quired to give prompt notice of such acceptance, both 
 to the applicant and to the Bishop from whom it came, 
 and the canonical residence of the Minister so 
 transferred dates from the acceptance by the Bishop 
 of his Letters Dimissory. — {Canon 16, Sec. v., of the 
 Digest) 
 
THE RECTOR. 
 
 A QUALIFIED MINISTER. 
 
 The wording of the Canons (Canons 15 and 16) is, 
 as to one question, unfortunately, neither clear nor 
 definite. Section v. of Canon 16 makes it the duty of 
 the Ecclesiastical Authority of the Diocese to accept 
 within three months after it is presented, the Letters Di- 
 missory of a Minister, removing into another Diocese, 
 who has been called to take charge of a Parish or Con- 
 gregation therein, provided there be no rumors affect- 
 ing his character. 
 
 This section of the Canon seems to give the Bishop 
 no discretion in the matter, but makes it mandatory 
 upon him to accept such Letters and receive the Minis- 
 ter into his Diocese, in the absence of any rumors 
 affecting his character. 
 
 But Section iii. of the preceding Canon provides that : 
 If the Bishop or the Standing Committee " be satis- 
 fied that the person so chosen [by the Vestry of a 
 Parish] is a duly qualified Minister"' of this Church, the 
 Bishop, or the President of the Standing Committee, 
 shall transmit the said certificate to the Secretary of the 
 Convention, for record. This Canon would seem to 
 give to the Bishop some discretion in the matter, and 
 to permit him, first, to be satisfied that the person so 
 chosen is a qualified Minister of this Church, before re- 
 quiring him to admit such Minister into his Diocese, 
 thus, apparently, conflicting with Canon 16, which 
 leaves him no discretion in the matter, but requires 
 that he shall receive him, when there are no rumors 
 affecting his character. Are these two Canons in irrec- 
 oncilable conflict, or can they be construed in harmony 
 with each other? 
 
212 LAW OF THE CHURCH. 
 
 That the General Convention, in enacting these 
 Canons, intended that the various sections thereof 
 should not be in conflict, but in harmony one with the 
 other, is, of course, beyond question. 
 
 It is also a well established rule of interpretation, that 
 the different parts of a Statute must be so construed as 
 to make the Statute a consistent whole, and that the 
 construction which produces the greatest harmony and 
 the least inconsistency is the one which ought to prevail. 
 
 While the English Ecclesiastical Law is superseded 
 by the Canons of the American Church, in so far as 
 they provide, yet, as we have already shown, when any 
 question arises as to the interpretation of a Canon, such 
 interpretation must be had in the light of the English 
 Law. The Canons under consideration are manifestly 
 founded on the provisions of some of the English Can- 
 ons of 1603, the 39th Canon of which, entitled, " Cau- 
 tions for Institution of Ministers into Benefices" reads 
 as follows : 
 
 " No Bishop shall institute any to a benefice, who 
 hath been ordained by any other Bishop, except he 
 first show unto him his letters of orders, and bring him 
 a sufficient testimony of his former good life and be- 
 havior, if the Bishop shall require it; and lastly, shall 
 appear, upon due examination, to be worthy of his 
 Ministry." 
 
 This Canon was exhaustively considered, and its 
 provisions construed, in the celebrated case of Gorham 
 v. The Bishop of Exeter. — {Moore's Rep. of " T/ie 
 Gorham Case" 459-) 
 
 The Bishop had refused to institute the Rev. Mr. 
 Gorham when first requested to do so, on the ground 
 that Mr. Gorham held opinions contrary to the disci- 
 
THE RECTOR. 
 
 213 
 
 pline and doctrine of the Church of England, and he 
 was informed by the Bishop " that he felt it his duty to 
 ascertain, by examination, whether he was sound in 
 doctrine, before giving him institution." 
 
 Mr. Gorham submitted to such an examination, but, 
 before its conclusion, protested against its continuance, 
 on the ground that his doctrine had been sufficiently 
 tested, and that the examination was becoming inquis- 
 itorial. At the conclusion of the examination, the 
 Bishop refused to institute him, "on the ground of the 
 unsoundness of the doctrines stated by him in the ex- 
 amination." Recourse was then had by Mr. Gorham 
 to the courts to compel the Bishop to institute him. 
 The Dean of Arches, before whom the case came, up- 
 held the decision of the Bishop, and sustained the right 
 of the Bishop to examine into the orthodoxy of a Min- 
 ister before instituting him into a benefice. 
 
 The provision of the Canon of the American Church, 
 that the Bishop is to be satisfied that the person chosen 
 as Rector of a Parish by the Vestry thereof is a qualified 
 Minister of the Church, before he shall be required to 
 receive him into his Diocese, manifestly intends, in the 
 light of the English Law, something more than that 
 the Bishop is merely to be satisfied that such Minister 
 has been ordained. 
 
 The term qualified, must, as Judge Hoffman main- 
 tains, receiveamore comprehensive meaning than mere- 
 ly that he has been ordained; it must be taken to mean 
 that the Bishop is to be satisfied of the general fitness of 
 the Minister elected, both morally and intellectually, 
 before he can be compelled to transmit the certificate 
 of the Wardens, as to the election of such Minister, to 
 the Secretary of the Convention for record, and thus 
 
«I4 LA W OF THE CHURCH. 
 
 complete such election to a Parish under his juris- 
 diction. 
 
 Bishop Stillingfleet thus states the English rule, as 
 to the Bishop's jurisdiction in the matter : 
 
 " The general rule is, and it was so resolved by the 
 judges, that all such as are sufficient causes of depriva- 
 tion of an incumbent are sufficient causes to refuse a 
 presentee. But by the Canon Law more are allowed 
 — Multa impediunt promovendum quae non dejiciunt" 
 — {Stillingfleet 's "Ea. Cases" Case I., p. 73.) 
 
 Judge Hoffman (" Law of the CJiurch" p. 283), in con- 
 sidering the term qualified, as used in the Canon in 
 question, says : 
 
 " The power which thus resides in the Bishop, and 
 which this Canon recognizes, is amply supported and 
 illustrated by English Authority. Indeed, there is no 
 point more clearly settled, and as to which the inter- 
 ference of the civil tribunals is more restricted." 
 
 This section of the Canon is also in complete har- 
 mony with the first rubric in the "Office of Institution," 
 which provides that the Bishop having received due 
 notice of the election of a Minister into a Parish or 
 Church, and " being satisfied that the ' person chosen 
 is a qualified Minister of this Church,' may proceed to 
 institute him into the Parish." 
 
 That the Bishop has the right to make such inquiry 
 into the moral and intellectual qualifications of a Min- 
 ister chosen by the Vestry of a Parish to be the Rector 
 thereof, as shall satisfy him that the Minister so chosen 
 is a qualified Minister, before instituting him, is, in my 
 judgment, clearly the Law of the Church. No other 
 construction of the term qualified is consonant with 
 Ecclesiastical Law and usage. 
 
THE RECTOR. 215 
 
 But if the Bishop has the right to make such inquiry 
 as shall satisfy him that the Minister chosen is a qual- 
 ified Minister, before instituting him as Rector of a 
 Parish, it is obviously clear that he has the same right 
 to make such inquiries as shall satisfy him that the 
 Minister so chosen is a qualified Minister, before it can 
 be made his duty to receive him, and to consent to his 
 election as Rector of a Parish within his jurisdiction. 
 No other construction of this section of the Canon 
 under consideration is consistent with the " tenet of an 
 Apostolic Episcopacy, or with the cardinal principle of 
 the Catholic Church," recognized as such by the Church 
 of England, and the Church in America, that the 
 Bishop, virtute officii, is the source of Diocesan Au- 
 thority. 
 
 When the Bishop of a Diocese receives from the 
 Wardens of a Parish the Canonical Certificate of the 
 election of a Minister to a Parish or Church within his 
 jurisdiction, it seems obvious, not only that he has the 
 right to make such inquiries as shall satisfy him that 
 the Minister so chosen is a qualified Minister of the 
 Church, but also that he may decline to transmit the 
 Certificate of Election for record, and return the same 
 to the Wardens so certifying, with his refusal to con- 
 sent to the election of such Minister as Rector, if he 
 be not satisfied that the Minister so chosen is a quali- 
 fied Minister. Such a construction is, in my judgment, 
 the only construction that can be placed upon the 
 words of the Canon, "If the Bishop be satisfied that 
 the person so chosen is a duly qualified Minister," con- 
 sistent with the tenets of the Church and the principles 
 of Ecclesiastical Law. 
 
 The question next arises, Is this authority and right 
 
216 LAW OF THE CHURCH. 
 
 which is recognized by Section iii., of Canon 15, re- 
 stricted or taken away by Section v. of the next Canon, 
 which makes it the duty of the Bishop to whom Let- 
 ters Dimissory are presented by a Minister, called from 
 another Diocese to take charge of a Parish within the 
 Diocese of such Bishop, to accept such Letters within 
 three months, unless the Bishop should become cog- 
 nizant of rumors against the character of the Minister 
 concerned ? 
 
 I think not. The two Canons do not necessarily 
 refer to the same question, nor do I think that it was 
 the intention of the Church that they should. Canon 
 15 refers to the consent of the Bishop to the election 
 of a Minister as Rector of a Parish, and recognizes, as 
 we have seen, his right, first to be satisfied of the qual- 
 ifications of the Minister so chosen before giving his 
 consent thereto. When his consent has been given to 
 such election, the election is completed, and a legal 
 call may then, and not till then, be transmitted by a 
 Vestry to the Minister so elected. 
 
 Canon 16 has no reference to the election of a Min- 
 ister ; it clearly refers only to a Minister who has already 
 been duly elected to the Rectorship of a Parish. Its 
 wording is : " If a Minister removing into another 
 Diocese, who has been called to a Cure in a Parish or 
 Congregation, shall present Letters Dimissory," etc. 
 It does not make it the duty of a Bishop to accept the 
 Letters Dimissory of every Minister who may present 
 such Letters, only of a Minister "who has been called 
 to a Cure in a Parish." 
 
 This section of the Canon is clearly complemental to 
 Canon 15, Sec. iii., and declaratory of the rights of a 
 Minister who has been duly elected, and his election 
 
THE RECTOR. 217 
 
 consented to by the Bishop, in accordance with the 
 provisions of that Canon. 
 
 The obvious intent of Section v. of Canon 16 is 
 not to deprive the Bishop of his right first to be satis- 
 fied of the qualifications of a Minister elected to the 
 Rectorship of a Parish within his jurisdiction, before 
 giving his consent to such election under the provisions 
 of Canon 15, but to provide that after the Bishop has 
 acted under that Canon, and given his consent to the 
 election of a Minister, he must accept the Letters Di- 
 missory of such Minister whom he has already con- 
 sented to receive into his Diocese, and which consent 
 forms a part of the call accepted by such Minister. 
 
 Canon 15 is declaratory of the right of the Bishop, 
 after he has received notice of the election of a Min- 
 ister to a Parish within his jurisdiction, to be satisfied 
 of the qualifications of the Minister so elected before 
 giving his consent to such election. Canon \6 is 
 declaratory of the right of such Minister, called, with 
 the consent of the Bishop, to the Rectorship of a Parish, 
 and having accepted such call, to have his Letters Dimis- 
 sory accepted by such Bishop. 
 
 Its plain intent is to make it the duty of the Bishop 
 to receive, as a qualified Minister of the Church, one 
 whom he has already consented so to receive, and to 
 accept the Letters Dimissory transferring such Minister 
 to his jurisdiction, within a certain definite time after 
 its presentation. 
 
 This, I submit, is the only fair and logical interpre- 
 tation that can be had of the sections of the Canons 
 under consideration, because : 
 
 First. It is the only interpretation that will bring 
 the two Canons into harmony with each other. 
 
218 LA W OF THE CHURCH. 
 
 In the "■American a fid English EncycLpcedia of Law" 
 {Vol. XXIII., pp. 306, 309), it is stated : "All parts of 
 the same Statute must be taken together. If one part 
 standing by itself is obscure, it may be aided by an- 
 other." 
 
 "That construction is favored which gives effect to 
 every clause and every part of the Statute, thus pro- 
 ducing a consistent and harmonious whole. A con- 
 struction which would leave without effect any part of 
 the language used should be rejected if an interpreta- 
 tion can be found which will give it effect." — ( The Eliza- 
 beth, 1 Paine [U. S.~\, 10; Sedgwick, on Con. of Statute 
 Law, 199-201; Montclair v. Ramsdell, 107 \U. S.], 147; 
 James v. Dubois, 16 N. J. L., 285; Palmer v. Stumph, 
 29 hid., 329 ; Mayor, etc., of Baltimore v. Hozvard, 6 
 Ear. &/. [Md.], 383.) 
 
 Second. It is the only interpretation that is consonant 
 with the general principles of Ecclesiastical Law, 
 which, it is to be presumed, the General Convention 
 did not intend to disregard or change. 
 
 It is a well settled rule of interpretation that in 
 construing a Statute the " whole should, if possible, be 
 made to harmonize; and if the sense be doubtful, such 
 construction should, if possible, be given as will not 
 conflict with the general principles of law, which, it 
 may be presumed, the Legislature would not intend to 
 disregard or change." — {Manuel v. Manuel, 13 Ohio St., 
 458; Hollman v. Bennett, 44 Miss., 322; Pendleton v. 
 Bank of Ky., 2 J.J Marsh [A/.], 149; Jones v. Lamar, 
 34 Fed. Rep., 454; Dean v. Met. El. R. Co., 1 19 N. Y., 540.) 
 
 The interpretation of the Canons herein contended 
 for, viz., that Section v. of Canon 16 in no way 
 restricts the right, recognized in Canon 15, of the 
 
THE RECTOR. 219 
 
 Bishop to be satisfied of the qualifications of a Minister 
 elected to the Rectorship of a Parish, under his juris- 
 diction, before giving his consent to such election ; that 
 such consent is necessary to complete the election and 
 to constitute such elected Minister the legal Rector of 
 such Parish ; and that the provisions of Section v. of 
 Canon 16 making it the duty of the Bishop to accept 
 the "Letters Dimissory" of a Minister " who has been 
 called to take charge of a Parish or Congregation " in 
 his Diocese, do not apply to the case of a Minister 
 presenting such " Letters Dimissory" who was "called " 
 by a Vestry without first obtaining the consent of the 
 Bishop to such election, is fully sustained by the de- 
 cision of the Supreme Court of the State of New York 
 in the case of The Recto?- et al. of St. James CJnirch, 
 etc.. v. Huntington, etc. (82 Hun, 125). 
 
 From the statement of the case, it appears that Mr. 
 Brockway, a duly ordained Clergyman of the Protestant 
 Episcopal Church, residing in the Diocese of Western 
 New York, was elected Rector of St. James' Church, in 
 the city of Syracuse, in the Diocese of Central New 
 York, by the Vestry thereof on the 25 th day of Novem- 
 ber, 1892, and a call to the Rectorship of that Parish 
 was then transmitted by the Vestry to the said Brock- 
 way, which call was accepted by him three days later, 
 November 28th. On the same day, November 28th, 
 the Vestry sent a notice in writing to the Bishop of 
 such election. The said Brockway then procured a 
 " Letter Dimissory " from the Bishop of Western New 
 York, which Letter was dated December 1, 1892, and 
 delivered the same to Bishop Huntington, of the Dio- 
 cese of Central New York, on December 2, 1892. The 
 Bishop declined to accept the said Letter Dimissory, 
 
220 LAW OF THE CHURCH. 
 
 and returned it to the Bishop of Western New York on 
 the ioth of May, 1893. So far as the case shows, and 
 it was so alleged by the plaintiff, there were no rumors 
 affecting the said Brockway's character, nor did the 
 Bishop allege that there were any, so far as the case 
 shows, when he returned the said Letter to the Bishop 
 of Western New York. 
 
 On the 2d of June, 1893, the Bishop was requested 
 to give the Certificate of Transfer provided for in Sec- 
 tion ii., of Canon 18, which request was refused. 
 
 On September 20, 1893, Bishop Huntington caused 
 an order to be issued on Brockway, inhibiting him from 
 officiating in the Diocese of Central New York. 
 
 The case shows that there was some correspondence 
 between the Bishop and the Vestry, and that the Bishop 
 objected to the election of Mr. Brockway as Rector 
 of the Parish, and refused to give his consent thereto. 
 
 The complaint alleged that the Canons as to Certifi- 
 cate of Transfer, and as to the right of the Bishop to 
 issue an order of inhibition, were null and void, as con- 
 flicting with the laws of the State. The relief asked for 
 was, substantially, that the Bishop be compelled to give 
 Mr. Brockway a Certificate of Transfer, that the order 
 of inhibition be set aside as null and void, and that 
 the Bishop be restrained from interfering with the 
 carrying out of the contract between Mr. Brockway 
 and the Vestry of St. James' Church. 
 
 The answer of the Bishop denied most of the material 
 allegations of the complaint, and in substance alleged 
 that the acts and conduct of the Bishop had been in 
 entire conformity and in accordance with the rules and 
 Canons of the Church. 
 
 Judge Merwin, in delivering the opinion of the 
 
THE RECTOR. 221 
 
 Court, said : " One of the theories of the complaint is, 
 that these Statutes [referring to the Statutes giving 
 Vestries power to call a Rector, etc.], gave the Church 
 Wardens and Vestrymen so absolute a power to call 
 and induct a Rector, that the Canon which requires a 
 certificate of transfer before the plaintiff Brockway 
 could officiate, and the Canon which authorizes the 
 defendant to prohibit his officiating, were, as to the 
 plaintiffs, null and void, as being in conflict with the 
 Statutes above referred to. I do not understand that 
 this position is now claimed by the plaintiffs to be cor- 
 rect. On the contrary, it is asserted that the affairs 
 of St. James' Church must be administered in accord- 
 ance with the rules, usages and customs of the de- 
 nomination to which the corporation belongs {Peo- 
 ple ex rtl. Peck v. Conley 42 Hun, 98, and cases cited), 
 and the plaintiffs claim that the defendant should be 
 compelled to give a certificate of transfer in accordance 
 with the Canon on the subject, and that the order of 
 inhibition should be set aside as not justified by the 
 Canonical provision. So that, in effect, the action is 
 to compel the observance by defendant of the Canons 
 of the Church, so far as they may affect the right or 
 power of the plaintiff Brockway to carry out his con- 
 tract with the other plaintiffs. 
 
 " The right of the civil courts to interfere in Eccles- 
 iastical matters is considerably limited. The general 
 rule is that such right exists only where there are con- 
 flicting claims to Church property, or funds, or the 
 use of them, or where civil rights are involved. 
 
 " The question here is, whether the right of the plain- 
 tiff Brockway to officiate as a clergyman in the Dio- 
 cese of Central New York is such a civil right as to 
 
222 LA W OF THE CHURCH. 
 
 give him a standing in the civil courts. . . . 
 The theory of the action is that the plaintiffs need 
 something more than they now have, in order to make 
 and consummate a complete and operative contract. 
 . . . The right of Brockway to be transferred to 
 the Diocese of Central New York was simply an Ec- 
 clesiastical right, based on no contract, but on the 
 Canons of the Church. 
 
 " Have we any right to order the specific perform- 
 ance of the Canon or supervise the action of the 
 proper officer under it ? The weight of authority is, 
 I think, against it. But, assuming that the plaintiffs 
 have a civil right that may be considered here, the 
 order of inhibition is in their way. This order was 
 issued by the officer who, under the Canon applicable 
 thereto, had the right and power to issue such an order. 
 He had, as Bishop, jurisdiction of the subject-matter, 
 and Brockway, the person to whom it was directed, 
 was within his Diocese seeking from him recognition. 
 Brockway had submitted to him his ' Letter Dimissory,' 
 and this had been returned to the Bishop who gave it, 
 and the defendant had refused to give a certificate of 
 transfer. . . . It [' the order of inhibition '] is 
 alleged to be in conflict with the law of the State in that 
 it interfered with the pending contract between the 
 plaintiffs, but this ground is not now pressed. No good 
 reason is apparent for treating the Canon as unreason- 
 able or in conflict with the law of the State. . . . 
 It seems to me very clear that the defendant had juris- 
 diction to make the order, and if so, under the law as 
 laid down in the Connitt and the Walker cases, we have 
 no right to consider the merits and determine whether 
 there was just cause for the order. It being valid and 
 
THE RECTOR. 223 
 
 binding on the parties and not reviewable here, the 
 plaintiffs are not in a position here to ask the Court 
 for relief. They cannot ask this Court to aid them in 
 completing their contract, when one of the parties to 
 it is not qualified to enter into it, according to Canons 
 and rules that bind both parties. 
 
 " The plaintiff Brockway voluntarily entered the min- 
 istry of the Episcopal Church and thereby became 
 subject to the rules and Canons of that Church. In 
 case of any dissatisfaction with the manner in which 
 the Ecclesiastical affairs of the Church were adminis- 
 tered, he took the benefit or burden of whatever rem- 
 edies were provided for within the Church. He has 
 not alleged that he has exhausted the remedies within 
 the organization, an allegation which has in some 
 cases been held to be necessary. Nor is it alleged 
 that he has not a complete remedy within the Church 
 for any injustice the defendant may have done." 
 
 OFFICE OF INSTITUTION. 
 
 Among the Offices of the Church, is an " Office of 
 Institution of Ministers into Parishes or Churches." 
 It was formerly provided by Canon that the Bishop or 
 President of the Standing Committee might, at the 
 instance of the Vestry, proceed to have a Minister 
 duly elected and called to the Rectorship of a Parish, 
 provided he be a Presbyter, " instituted according to 
 the Office established by this Church, if that Office be 
 used in the Diocese." While there is now no Canoni- 
 cal provision for the use of this Office, there is still the 
 provision of the rubric. 
 
 The first rubric in the said " Office " provides that 
 " the Bishop having received due notice of the elec- 
 
224 LA W OF THE CHURCH. 
 
 tion of a Minister into a Parish or Church as prescribed 
 by the Canon, concerning ' the Election and Institu- 
 tion of Ministers,' and being satisfied that the ' person 
 chosen is a qualified Minister of this Church,' may pro- 
 ceed to institute him into the Parish." 
 
 While this " Office of Institution " does not confer 
 upon the Rector of a Parish any rights not pre-exist- 
 ing, it recognizes those rights which are inherent in 
 the office of Priest- Rector, and expresses the mind and 
 will of the Church as to the relation which the Rector 
 of a Parish sustains to the Vestry thereof, and is the 
 key to the true interpretation of her laws relating to 
 the respective rights of Rector and Vestry in her tem- 
 poralities. 
 
 The " Office of Institution " is therefore deserving 
 of our careful consideration. This Office is manifestly 
 founded upon the Office of " Induction " of the 
 Church of England. The seventeenth Canon of the 
 General Convention of 1789 referred to "the induction 
 of a Minister into any Church or Parish " as a matter 
 of course and, by a fair implication, would seem to 
 have required it. As no " Office of Induction " had at 
 that time been set forth by the American Church, 
 the induction of a Minister into a Church implied, 
 of necessity, induction according to the Office of the 
 English Church. And until 1804, when the Church 
 set forth and established her own " Office of Induc- 
 tion," every Minister inducted into a Church or Parish 
 was inducted according to the "Office of Induction" 
 of the Church of England, and which, until super- 
 seded, was the "Office of Induction " of the American 
 Church. 
 
 Our first inquiry, therefore, must be as to the mean- 
 
THE RECTOR. 225 
 
 ing of the word " Induction," as used in the Office of 
 the Church of England. 
 
 Burn, in his work on "Ecclesiastical Law " ( Vol. I., p. 
 167), says that the whole matter of admission, institu- 
 tion and induction is well explained in Sir Simon 
 Degge's "Parson's Counsellor," which he quotes as fol- 
 lows: " If the Ordinary, etc.; upon the examination of 
 the Clerk, find him fit in all points, as above in the first 
 chapter is directed, then he admits him in these words: 
 Admit to te habilem, etc., and thereupon the Ordinary 
 institutes him in these words: Instituo te rectorem 
 ecclesice parochialis de C. ct Jiaberc curam animarum, 
 et accipe curam tuam et me am. 
 
 " When the Bishop hath instituted the Clerk, the Ordi- 
 nary maketh a mandate under seal to the Archdeacon 
 of the place, or to such ether Clergyman as he pleases, 
 to induct the Clerk; and it may be made by the dean 
 and chapter, but not by the patron ; for though by the 
 institution the Church is full against all persons except 
 the King, yet he is not complete parson till induction; 
 for by the institution he is admitted ad officium, to 
 pray and preach, yet he is not entitled ad beneficium 
 until he be formally inducted; which maybe done by the 
 delivery of the ring of the church door, or latch of the 
 church gate, or by delivery of a clod or turf and twig 
 of the glebe; but the most common and usual way is, and 
 therefore the safest, by delivery of the bell rope to the 
 newly instituted Clerk, and the toiling the bell." 
 
 Three separate acts are herein noted, admission, in- 
 stitution and induction. 
 
 First : As to admission. Nearly all the churches in 
 England in the early times were built by the lords of 
 the manor, or other individuals, to whom the law gave 
 
226 LA W OF THE CHURCH. 
 
 the right to nominate the persons who should minis- 
 ter in such Churches and be entitled to receive the re- 
 venues from the endowments thereof. This right of 
 nomination was termed an advowson, which Black- 
 stone says is defined to be " the right of presentation 
 to a Church or Ecclesiastical benefice." 
 
 This right of a patron to present to a benefice is 
 subject to one limitation, the person so presented must 
 be a fit person; "and this fitness is to be decided 
 (subject to the right of appeal) by the Bishop." 
 If a benefice was to be conferred upon a mere 
 layman he must first be ordained, and the Bishop 
 had the right to examine him, and, if he saw fit, to 
 refuse him ordination. The right of the Bishop to 
 inquire into and judge of the qualifications of candi- 
 dates for benefices was recognized by law as early as 
 the fifth century. In the " Novell of Justinian " it was 
 decreed that if any man erected an oratory and de- 
 sired to present a Clerk thereto, he must first be nomi- 
 nated to the Bishop, who was to judge of his qualifica- 
 tions, and, when these were sufficient, then the Bishop 
 was to admit the Clerk. After a Clergyman has been 
 admitted, the Bishop may then proceed to iustitutehim. 
 The Bishop may himself exercise this right of institu- 
 tion, or he may delegate such right to another; nor is it 
 necessary that it should be performed in the Diocese 
 of the Bishop instituting, it may be performed any- 
 where the Bishop and the Clergyman seeking institu- 
 tion maybe. — {Blunt' s " Book of Church Law" p. 240.) 
 
 The ceremony of institution is exceedingly simple. 
 The Clergyman to be instituted kneels before the 
 Bishop or his Commissary, as the case may be, holding 
 in his hand the written instrument of institution, 
 
THE RECTOR. 227 
 
 under the Episcopal seal. This instrument, thus held, 
 the institutor reads aloud, the pith of which is as fol- 
 lows : " We do, by these presents, commit unto you 
 the cure and government of the souls of the parish- 
 ioners of said Parish, and do authorize you to preach 
 the Word of God in the Parish church aforesaid," etc. 
 This act of institution confers upon the person in- 
 stituted the jus ad rent, but not the jus in re. It in- 
 vests him with all spiritual functions, but conveys no 
 temporal right. His legal, temporal rights are confer- 
 red upon him by another act termed "induction," 
 which must take place in the church in which he min- 
 isters, or is to minister. The Bishop issues a mandate 
 to the Archdeacon, or some other clergyman, to induct 
 the Minister already instituted. — {Blunt 's " Book of 
 Church Laiv," p. 240.) 
 
 The ceremony of induction usually consisted in the 
 inductor taking the hand of the person to be inducted 
 and laying it upon the key or ring of the church door, 
 or, if there was no such key or ring, then upon any part 
 of the church wall, or churchyard, and saying to him 
 these words, or words of similar import: " By virtue 
 of this mandate, I do induct you into the real, actual, 
 and corporal possession of this church, with all the 
 rights, profits and appurtenances thereto belonging." 
 The inductor then opens the door of the church and 
 puts the person inducted within the church, who then 
 usually tolls the bell as a proclamation to the parish- 
 ioners that he is in possession of the temporalities of 
 the church. The effect of this induction was to confer 
 the jus in re, the complete and full legal rights of 
 property, the actual corporal possession of the free- 
 hold of the church, churchyard, rectory, glebe, etc., 
 
228 LA W OF THE CHURCH. 
 
 upon the person already instituted to the cure of souls. 
 — (See Burn's " Ecc. Law" [Ed. 1842], Vol. I., p. 173; 
 Blunt' s "Book of Church Law," pp. 242, 243.) 
 
 This was the English Law and the Law of the Colon- 
 ial Church. It was also the Law of the American 
 Church, so far as it was applicable, at the time when 
 the " Office of Induction " was set forth and established 
 by the Convention of 1804. While it was the Law of 
 the Colonial Church, yet was it impossible for that 
 Church to comply with all the formalities of that Law. 
 There was no patron to present, and no Bishop to whom 
 presentation could be made. 
 
 The general system which prevailed in the Colonies 
 was a right of presentation by the Vestry or the Parish, 
 and, in some cases, of induction by the Governor. In 
 the Plantation of Virginia, for instance, a Statute 
 enacted in 1642 provided that the Governor was to 
 induct any Clergyman into a Parish who might be pre- 
 sented by such Parish. Dr. Hawks states that he 
 believes this right to have been exercised in the Plan- 
 tation of Virginia up to the period of the Revolution. 
 
 The form of induction was as follows : " A.B., His 
 
 Majesty's Lieutenant and Governor-General, etc., To 
 the Vestry of Parish in : In virtue of the pre- 
 sentation which you have made to me of to be 
 
 your Minister, I do induct him into the real and cor- 
 poral possession of the Parish of in , with all 
 
 the right, profits, and appurtenances thereof." — 
 {Hawks' "Contr.," Vol. I., pp. 53, 88; cited in Hoff- 
 man's " Law of the Church" p. 290.) 
 
 In some of the other Colonies, similar Statutes were 
 passed. The General Convention of 1789 enacted a 
 Canon (Canon XVII.) requiring " that on the indue- 
 
THE RECTOR. 
 
 229 
 
 tion of a Minister into any Church or Parish, the parties 
 shall deliver or cause to be delivered to the Bishop, or 
 to the Standing Committee of the Diocese or District, 
 notice of the same in the following form, or to this 
 effect : " We, the Church Wardens," etc., the form of 
 notice being almost identical with the form required by 
 the former Canon. 
 
 The right of the Bishop to be satisfied that " the 
 person so chosen is a qualified Minister of this Church" 
 was also recognized by this Canon in substantially the 
 same language as that now used in Canon 15, Section 
 in., of the present Digest. It was the evident intention 
 of the Convention of 1789, in enacting this Canon, to 
 supply some of the forms required by the English Office 
 of Induction. The notice of the election of a Minister, 
 required to be given to the Bishop by the Church War- 
 dens, was to take the place of presentation by a patron, 
 while the Bishop or Standing Committee were required 
 to be satisfied that the person so elected was "a qualified 
 Minister of this Church." Three things, as Dr. Hawks 
 well says (" Con. and Canons" p. 269), were clearly 
 within the intention of the General Convention of 1789 
 in framing this Canon. 
 
 " First, to provide the way of accomplishing something 
 which they called induction; secondly, as in England, 
 to allow no one to be inducted, but one shown to be 
 canonically qualified, to the satisfaction of the Bishop; 
 and thirdly, to give to the inducted Minister all the 
 benefits of induction which the peculiar situation of our 
 Churches and country would allow; pecuniary profit 
 from any fixed source of Ecclesiastical revenue being 
 out of the question, no other privilege remained but 
 that of control over the church edifice; and with the 
 
230 LA W OF THE CHURCH. 
 
 common opinion then entertained of the effect of in- 
 duction, in this particular, it can hardly be doubted 
 that they designed, as far as they could, to confer such 
 control." 
 
 In 1804, the General Convention amended the 17th 
 Canon of 1789 by the addition of two provisions, the 
 first of which made induction necessary in all cases of 
 the election of a Minister to a Parish. It provided that 
 if the Minister-elect be a Presbyter, the Bishop " shall 
 proceed to have him inducted according to the Office 
 established by this Church." The second additional 
 provision declared that " no Minister, who may here- 
 after be elected into any Parish or Church, shall be con- 
 sidered as a regularly admitted and settled Parochial 
 Minister in any Diocese or State, or shall, as such, have 
 any vote in the choice of a Bishop, until he shall have 
 been inducted according to the Office prescribed by 
 this Church." It will be noted that reference is made 
 in the Canon to the Office of Induction " as established 
 by this Church." This " Office of Induction," with its 
 rubrics, as set forth and established by the Convention 
 of 1804, was, in all its essential features, identical with 
 the present " Office of Institution." 
 
 A rubric provided that " Morning Prayer ended, 
 the Priest who acts as the Inductor, standing within 
 the rails of the altar, shall say: " Then followed the 
 announcement to the congregation that the purpose 
 of the assembly was to induct the elected Minister as 
 Rector of the Church, and inviting any one present 
 to show just cause why he should not be so in- 
 ducted. Then, if no cause, or none sufficient in the 
 opinion of the Inductor, was shown, the Inductor was 
 directed to "read the letter of induction ; and then 
 
THE RECTOR. 231 
 
 shall the Senior Warden {or the member of tlie Vestry 
 supplying his placed) present the keys of the Church to 
 the new incumbent, saying: In name and behalf 
 of Parish (or Church), I do receive and acknow- 
 ledge you, the Rev. A. B., as Priest and Rector (or 
 Associated Rector, or Assistant Minister,) of the same, 
 and in token thereof, give into your hands the keys 
 of this church. 
 
 " Then the new incumbent shall say : 
 
 "I, A. B., receive these keys of the House of God 
 at your hands, as the pledges of my induction, and of 
 your parochial recognition, and promise to be a faithful 
 shepherd over you, in the name of the Father and of 
 the Son and of the Holy Ghost." 
 
 Dr. Hawks has made this first Canon of 1804, and 
 this " Office of Induction " as established by the Con- 
 vention of 1804, the subject of a note so able and so 
 correct in its conclusions that I cannot forbear from 
 quoting it. He says : " Such was the office alluded to 
 in this Canon; and to this solemn and public delivery 
 of the keys it seems difficult to attach any meaning, 
 unless we consider it as a substitute for the formal 
 ceremony of induction in the English Church, by 
 placing the hand of the incumbent upon the keys or 
 ring of the door. 
 
 " Viewed in this light it appears intelligible enough. 
 It surely was not necessary to introduce so grave a 
 ceremony for the mere purpose of certifying to the 
 world that the relation of pastor and people had been 
 created by the election of the incumbent; besides, this 
 fact had already been announced in due form by the 
 inductor. 
 
 " For what, then, was it introduced ? Beyond all 
 
232 LA W OF THE CHURCH. 
 
 question, it was designed by those who framed this 
 office (viz., the Bishops, Priests and laymen assem- 
 bled in General Convention) to be a symbolical de- 
 livery. A symbolical delivery of what ? The keys of 
 a house, placed in the keeping of a person, import the 
 possession of the house to be in that person. They 
 imply that the control of it belongs to that person. 
 The new incumbent, in his reply, when he receives the 
 keys from the Warden, recognizes the building as "the 
 house of God"; and, of course, takes possession of it, 
 under the symbolical delivery, to exercise over it such 
 control only as is consistent with its character as the 
 house of God: he virtually pledges himself, that while 
 in his possession, it shall sustain no other character; 
 he takes upon himself the duty (which must be con- 
 fided somewhere) of guarding the edifice from dese- 
 cration. 
 
 " What may or may not be desecration, in the judg- 
 ment of an incumbent, is a distinct question with which 
 we have no concern, in seeking to discover, from this 
 Canon, the intention of those who made it; and by 
 this Canon and Office of Induction, thus incorporated 
 into it, to us, at least, it would seem that the highest 
 legislative authority 'in the Church has declared the 
 intention to be, by a symbolical delivery of the keys, 
 on the part of the Vestry, to confide the custody and 
 control of the church edifice to the Minister, for the 
 purpose of keeping it sacred as ' the house of God.'" — 
 {Hawks' " Con. and Canons" p. 273.) 
 
 The Canon of 1804 made induction necessary, in all 
 cases of the election of a Minister to a Parish, and 
 deprived the Minister not so inducted of the privilege 
 of voting for a Bishop, or of being considered as a reg- 
 
THE RECTOR. 233 
 
 ularly admitted and setted parochial Minister in any Dio- 
 cese. Bishop White states (" Memoirs" \st Ed.,p. 255): 
 " No objection had been made to the office ; but the re- 
 quiring of induction as essential to a valid settlement 
 was evidently perceived to militate against the ideas, 
 so prevalent in many places, of dismissing Ministers at 
 pleasure. ... In Maryland the measure interfered 
 directly with the Vestry Law. From Carolina there 
 was a memorial, desiring an alteration of the Canon. 
 And in other places complaints were known to have 
 been made." 
 
 The Convention of 1808 re-enacted the Canon of 
 1804, with the following changes : the word " induc- 
 tion " was changed to " institution," and it was newly 
 provided, in order to meet the objections raised by the 
 Dioceses of Carolina and Maryland, that : " This Canon 
 shall not be obligatory on the Church in those Dioceses 
 or States with whose usages, laws, or charters it inter- 
 feres. Nor shall anything in this Canon, or in any other 
 Canon, or in any service of the Church relative to the 
 office of Associated Rectors, apply to the Church in 
 those States or Dioceses where this Office is not recog- 
 nized by the Constitution, Laws, or Canons thereof. 
 
 " But it is to be understood that this Church designs 
 not to express any approbation of any laws or usages 
 which make the station of a Minister dependent on 
 anything else than his soundness in the faith, or wor- 
 thy conduct. On the contrary, the Church trusts that 
 every regulation in contrariety to this will be in due 
 time reconsidered ; and that there will be removed all 
 hindrances to such reasonable discipline as appears to 
 have belonged to the Churches of the most acknow- 
 ledged orthodoxy and respectability." 
 
234 LA W OF THE CHURCH. 
 
 The Canon of 1804 referred to the Office of Indue- 
 tion "established by this Church" ; the Canon of 1808 
 referred to the Office of Institution " established by 
 this Church." But that Office of Institution was pre- 
 cisely the same as the present Office of Institution, 
 and the same as the former Office of Induction, except 
 in the substitution of the words institute and insti- 
 tutor, for induct and inductor, thus clearly evidencing 
 that the Convention in changing the name of the Of- 
 fice had no thought or intention of changing either its 
 nature or import. Bishop White, in speaking of the 
 action of the Convention of 1808, merely says (" Me- 
 nuirs," 1st Ed , p. 30): " 'The Office of Induction' es- 
 tablished by the last Convention was changed in name 
 to ' The Office of Institution,' and rested on recommen- 
 dation, not on requisition, as before." 
 
 In changing the name of the Office, it is obvious 
 that the Convention of 1808 did not fully understand 
 the technical difference between the two Offices of In- 
 duction and Institution, as used in the English Church, 
 but supposed that the words induction and institu- 
 tion were synonymous. The change in the name of the 
 thing did not change the thing itself. The same cer- 
 emony of a delivery of the keys of the church to the 
 Minister by the Church Warden, accompanied by the 
 same identical form of words, was retained. The re- 
 marks of Dr. Hawks on this point are most pertinent. 
 He says (" Con. and Canons" p. 27/): " Whatever, in 
 the intention of the makers of the Canon of 1804, was 
 meant by the formal solemnities in the Office of In- 
 duction, it is obvious must here have been meant by 
 retaining the very same ceremonies in the Office of In- 
 stitution. The name given to the act cannot possi- 
 
THE RECTOR. 235 
 
 bly change its nature, unless it were plain that such 
 name was given with a full knowledge of its technical 
 import. Here the proof is direct that there was no 
 such knowledge, and consequently no intention to be 
 bound by the strictness of technical language. 
 
 " In truth, the Convention defines what it means by 
 institution, by referring to an Office prescribing some- 
 thing utterly different from English institution, and 
 precisely agreeing with what they had before called 
 induction. The conclusion follows that they defined 
 institution to mean induction, and by such definition 
 they effectually shut the door against a construction 
 which would bind them by technical meaning. 
 
 " Further, if any legal effects resulted from the per- 
 formance of the solemn acts in the Office of Induction, 
 whatever those effects may have been, precisely the 
 same must follow upon institution, because the acts 
 are the same ; and the law, regardless of the name, 
 will look only to the acts done, and declare the effect 
 of them." 
 
 It is hard to see how these conclusions of Dr. Hawks 
 can be successfully controverted ; and so far as I have 
 been able to find they never have been controverted, 
 and will probably be denied by no one. 
 
 The Convention of 1814 repealed so much of the 
 29th Canon of 1808 as required the institution of an 
 Assistant Minister before he could be considered as a 
 regularly admitted and settled parochial Minister in 
 any Diocese or State, and have a vote in the choice of 
 a Bishop. It also declared, in explanation of the Canon 
 of 1808, "that the provision concerning the use of the 
 Office of Institution is not to be considered as apply- 
 ing to any congregation destitute of a house of worship." 
 
23 6 LA W OF THE CHURCH. 
 
 The question now arises, What are the consequences 
 which follow upon institution? What rights does the 
 instituted Minister acquire by this act ; and what rights 
 do the Vestry relinquish ? These questions have been 
 most exhaustively considered by Dr. Hawks, in his 
 work on " C nsiitutions and Canons of the Church'" 
 {pp. 280-87). 
 
 First. He considers that the instituted Rector can- 
 not be dismissed from his charge without the concur- 
 rence of the Ecclesiastical Authority of the Diocese, 
 nor without such concurrence leave his congregation 
 against their will. 
 
 Second. That such Rector has exclusive power over 
 the church edifice, as to granting or refusing its use 
 for purposes of worship, a power with which no Vestry 
 can lawfully interfere. He deduces this from the na- 
 ture of the relation which the Rector bears to his con- 
 gregation, and from the absolute necessity that the 
 Rector, to whom the duty of watching over the souls 
 of his congregation as one that must give account is 
 committed, should himself teach them what he be- 
 lieves to be the truths of the Gospel, or select those 
 who may teach in his absence. 
 
 The Church, recognizing the principle thatthe Rector 
 is under a sacred obligation in this matter, has ex- 
 pressly legislated that he shall not be interfered with 
 in the discharge of his functions among his people by 
 any brother clergyman, nor, a fortiori, will she allow 
 her laity to interfere. 
 
 TJiird. He next examines the question as to what, 
 if any, are the rights of the instituted Rector in con- 
 trolling the use of the church at other times and for 
 other purposes than those of public worship on ap- 
 
THE RECTOR. 237 
 
 pointed days, and shows most conclusively, arguing 
 from the Institution Office, and the delivery of the 
 keys by the Warden as directed therein, that the 
 Church intended by that office, and by the delivery of 
 the keys, to confer the exclusive control of the church 
 at all times, as to its uses, upon the instituted Rector. 
 This he deduces from the close resemblance of the 
 American " Office of Institution " to the English 
 " Office of Induction," and the common purpose ex- 
 isting in both offices. While he concedes that the 
 patronages, presentations, etc., of the English Law 
 are inapplicable here, he shows that the Church obvi- 
 ously designed by her legislation to provide as good a 
 substitute as was possible under the circumstances, for 
 such presentation, etc., and to secure to the Church 
 such advantages as were consistent with our political 
 and Ecclesiastical condition. After showing that in 
 England the ownership of the Church property is in 
 the patron, until in due form he divested himself of such 
 ownership, and as no such patron existed here, and it 
 being necessary that the estate should be vested some- 
 where, therefore the expedient of Wardens and Ves- 
 trymen as trustees, in whom the estate should vest, 
 was resorted to ; he then proceeds to trace the re- 
 semblances between the two offices. 
 
 After stating that in England the ownership of the 
 property is in the patron, while here it is in the War- 
 dens and Vestry (by "Vestry" obviously meaning 
 Vestrymen) he proceeds as follows : 
 
 "In England the patron selects the incumbent; here 
 the Wardens and Vestry invite whomsoever of the 
 Clergy they please. 
 
 "In England, the patron presents; here, the Wardens 
 
238 LA IV OF THE CHURCH. 
 
 and Vestry, by the Law of the Church, are required to 
 do the same thing. 
 
 " In England, the presentation is to the Bishop, that 
 he may ascertain if the person is ' canonically qualified.' 
 Here the Wardens and Vestry are required to present 
 to the Bishop the Minister whom they elect, in order 
 that he may be satisfied that 'he is a qualified Minister 
 of this Church.' 
 
 " In England, the Bishop, being satisfied, sends to a 
 proper person his mandate for induction; here the 
 Bishop may do the same thing. 
 
 " In England, the ceremony of induction consists of 
 corporal investiture, a solemn delivery of the church 
 edifice to the incumbent, by the significant token of 
 placing his hand on the key of the door; here, the cere- 
 mony of institution is marked by the equally significant 
 act of the public delivery of the keys of the church, by 
 one of the corporation, in the name and on behalf of 
 the whole Church. 
 
 " These resemblances surely are not the result of 
 accident. They were designed, and as the cere- 
 mony of induction in England was known to give 
 two things to the Clergyman, viz., a right to the reve- 
 nues of the living, and an uncontrolled ownership over 
 the building for the time being, is it an unreasonable 
 opinion that the Church here, by its legislation, meant 
 to do as much of the same things as the circumstances 
 of the country would permit; and that, as she could 
 grant no revenues, she meant by conferring the control 
 of the edifice, to do the only other act which gave any 
 significancy to the ceremony she had framed as analo- 
 gous to an English induction ? We cannot, therefore, 
 but believe that the Church meant by the delivery of 
 
THE RECTOR. 239 
 
 the keys to confer the exclusive control of the church, 
 as to its uses, upon the Minister." 
 
 As Judge Hoffman well says {"Ecc. Law" p. 86), it 
 seems impossible to deny the force of this reasoning. 
 
 It has also been fully sustained by the Courts. In 
 Humbert v. St. Stephen's Church (i Edwards' Ch. 
 Rep. [TV. F.], 308), Vice-Chancellor McCouen, in deliv- 
 ering the opinion of the Court as to the meaning of 
 the clause in the Statute giving the Vestry power " to 
 call and induct a Rector," says: " In what does the call 
 and induction consist? I have no doubt it includes 
 the power to fix the salary, as well as to make a con- 
 tract with the Rector and deliver him possession of the 
 Church. The call and induction appear to be substi- 
 tutes for what is known in the Common Law as the 
 right of advowson or presentation to an Ecclesiastical 
 benefice and of institution and induction. The first be- 
 longs to the founder or patron of the Church; the 
 second to the Bishop, which, according to Blackstone, 
 'is a kind of investiture of the spiritual part of the 
 benefice'; and the last to the Church Wardens and 
 Vestrymen, which is a giving of the possession or an 
 investiture of the temporal part, as institution is of the 
 spiritual." 
 
 While the " Office of Institution" is not of common 
 use in the American Church, the neglect to use it being 
 due in great measure to the fact that it does not in- 
 crease the legal status of the Rector of a Parish, yet, 
 in my judgment, the somewhat extended consideration 
 herein given to that Office was necessary, as it is 
 the solemn setting forth of the mind of the Churchy as 
 to the nature of the relation which a Rector of a Parish 
 sustains to the Vestry thereof, and as to the extent of 
 
240 LA W OF THE CHURCH. 
 
 the Rector's power over the Church edifice. The Office 
 confers no new rights upon the Rector, it is simply 
 declaratory of the rights which he already possesses, 
 and which are inherent in his office. The one right 
 which it most emphatically declares as belonging to 
 the Rector is his possession of, and exclusive control 
 over, the church edifice. 
 
 IS CALLED FOR LIFE. 
 
 A Minister called to the Rectorship of a Parish, in 
 the absence of any express agreement limiting the 
 tenure of such office, is called for life. This is the 
 undoubted law of the English Church. — (Bum's "Ecc. 
 Law," Vol. III.,/. 542; Blunfs "Book of Church Law," 
 p. 246; Cripp "s " Lazv of the Clergy" p. 543.) 
 
 " By both the Canon and the Common Law, it was 
 well settled that an incumbent once duly instituted 
 was in for life, and could not be removed by the patron. 
 He could only be dismissed upon a just sentence. The 
 authority of Lord Coke as to the Common Law is fre- 
 quently given." — {Hoffman's " Law of the Church'' p. 
 
 333) 
 This is general Ecclesiastical Law. This is also 
 
 the law of the American Church {Canon 38, Sec. i., 
 of the Digest), and has been so declared by the civil 
 courts. 
 
 In Jennings, etc., v. Scarborough, etc. (56 N.J. L., 401), 
 the Court held, if a Minister be called to the Rec- 
 torship of a Parish, and the call be without limitation 
 as to time, "it is admitted that under such a call the 
 tenure is for life, unless terminated by mutual consent, 
 or the pastoral relation is dissolved as provided for 
 in the Canons." 
 
THE RECTOR. 241 
 
 This decision expresses the well settled rule of law 
 of the American Church. One exception to this other- 
 wise universal rule of law should be noted. 
 
 In the State of Maryland it has been decided 
 {Bartlett et al. v. Htpkins, j6 Md., 5), that under 
 the Vestry Act of that State, a call to the Rectorship 
 of a Parish containing an agreement to pay a certain 
 yearly salary was not a call for life, and that such call 
 was terminable by the Vestry at the end of any such 
 year. 
 
 It was decided in the same case that Canon 4 of Title 
 II. (now Canon 38) of the Constitution and Canons of 
 the General Convention was " not in force in the Diocese 
 of Maryland, being in conflict with the Act of Assem- 
 bly of 1798, Ch. 24, incorporating Vestries of the Prot- 
 estant Episcopal Church." 
 
 DISSOLUTION OF RECTORSHIP. 
 
 Canon 38, Section i., of the Digest provides that a 
 Rector canonically elected and in charge cannot resign 
 his Parish without the consent of such Parish or its 
 Vestry ; nor can he be removed therefrom by such Par- 
 ish or Vestry against his will, except in the manner and 
 by the authority provided for in the Canons. 
 
 Section ii. of the same Canon provides that in case 
 a dissolution of the pastoral relation between a Rector 
 and his Parish is desired, and the parties are not agreed 
 in respect thereto, notice of such desire and disagree- 
 ment may be given by either party to the Ecclesiastical 
 Authority of the Diocese in writing. And in case the 
 Bishop of the Diocese be not able to settle the differ- 
 ence between the parties satisfactorily, or in case he 
 
242 LA W OF THE CHURCH. 
 
 decline to consider the matter without counsel, " the 
 Bishop (or, if the Diocese be vacant, any Bishop selected 
 by the Ecclesiastical Authority), acting with the advice 
 and counsel of the Standing Committee of the Diocese 
 or Missionary District, shall be the ultimate arbiter 
 and judge. While the Canon declares that it shall 
 be the duty of both the Rector and the Parish to 
 abide by the judgment of the Bishop, it fails to 
 provide any penalty for the refusal of either party 
 to abide by such judgment, leaving the penalty to 
 be provided by the several Dioceses. Very few 
 Dioceses have made any such provision, and Section 
 ii. of Canon 38 is practically incapable of enforce- 
 ment. In case of a serious disagreement between 
 a Rector and his Vestry, there is, therefore, under 
 the present Canon, no authority with power to de- 
 cree a dissolution of the pastoral relation. That 
 neither the Rector nor the Parish nor its Vestry 
 can dissolve the pastoral relation, unless both parties 
 mutually agree thereto, (except in the State of Mary- 
 land, as before noted, and those Dioceses that have 
 made provision therefor), will not, I apprehend, be 
 seriously questioned. 
 
 This question was thoroughly considered in Youngs 
 v. Ransom (31 Barb., 49), and the Court held that "Mr. 
 Ransom was not called, nor did he agree to preach for 
 a year, or for any specified time, nor at the will of the 
 Church or Vestry. He was called to take charge of 
 the Parish as Rector, and settled as such. It is not 
 and cannot be denied, that the rule or regimen of the 
 Episcopal Church as to the tenure of its Parish Minis- 
 ters is, that when they have once been placed in charge 
 
THE RECTOR. 243 
 
 of congregations they can neither leave nor be dis- 
 missed, except by mutual consent, without the inter- 
 vention of the Bishop. Without discussing the power 
 to make, or the propriety of, agreements for the per- 
 formance of clerical service limited in time, I think it 
 is very clear that when a Minister is called or settled 
 in an Episcopal Parish without any such limitation, he 
 can only be dismissed, or sever the connection, by mu- 
 tual consent, or by superior Ecclesiastical Authority, 
 on the application of one of the parties. ... I 
 have no hesitation in the conclusion that when a Min- 
 ister is called to and settled in the charge of a Parish, 
 unless something to the contrary is distinctly ex- 
 pressed in the call and settlement, he can only be dis- 
 missed without his consent by the Bishop of the Dio- 
 cese." 
 
 (To the same effect are Batterson v. Thompson, 8 
 Phil. Rep., 251; Lyndv. Menzies, 33 N. J. L., 162 ; Jen- 
 nings v. Scarborough, $6 N.J. Z.,401; Avery v. Tyring- 
 ham, 3 Mass. Rep., 160.) 
 
 In the case last cited the Court says : " It has been 
 the uniform opinion of all the judges of the higher 
 courts, that when no tenure was annexed to the office 
 of Minister by the terms of settlement, he did not hold 
 his office at will, but for life, determinable for some 
 good and sufficient cause, or by the consent of both 
 parties." 
 
 A Vestry cannot indirectly force a dissolution of the 
 pastoral relation by a reduction of the Rector's salary. 
 
 This point was expressly so decided in Bird v. St. 
 Mark's Church (62 Ioiva Rep., 567). The statement of 
 the case shows that the Vestry of St. Mark's Church, 
 Waterloo, had, by resolution, endeavored to reduce the 
 
244 L ^ w OF THE CHURCH. 
 
 salary of the Rector of the Parish, in order to compel 
 him to consent to a dissolution of the pastoral rela- 
 tion. On refusal of the Vestry to pay him the salary 
 originally promised to him, the Rev. Mr. Bird, the Rec- 
 tor of the Parish, brought an action to recover the sal- 
 ary so promised, and the Court held that " It was not 
 competent for the Vestry of the Parish, in violation of 
 the Canons of the Church, to dissolve the pastoral re- 
 lations against the plaintiff's will. These Canons be- 
 come just as much a part of the contract of employ- 
 ment of plaintiff as if they had been specifically re- 
 ferred to, or written out in full therein. 
 
 " The salary upon which the plaintiff was employed 
 constitutes an essential part of the contract. If the 
 defendant could be permitted to reduce the plaintiff's 
 salary without his consent, it could force him to agree 
 to a dissolution of the pastoral relation, and thus ac- 
 complish indirectly what it could not do directly. The 
 right to the salary stipulated at the time the plaintiff 
 accepted the position of Rector is a valuable property 
 right secured to the plaintiff by contract. One party 
 cannot ignore its provisions or violate them with im- 
 punity." 
 
 The courts are uniform in their decisions that the 
 livelihood of one who withdraws himself from all secu- 
 lar pursuits, and devotes his life to the sacred work of 
 the ministry, "needs special protection, and ought not 
 to be dependent for a livelihood on the whims and 
 prejudices of his congregation." 
 
 It has been well said that no description of men un- 
 der the government of Jews, Turks or pagans would 
 be so badly off as would the Clergy if the power of 
 dismission lay with the people. 
 
THE RECTOR. 245 
 
 It has ever been the universal rule of the Church, 
 that there should be no severance of the pastoral rela- 
 tion except by mutual consent, or by the due inter- 
 vention of the Bishop of the Diocese. The civil courts 
 have also recognized that there was a " nearness and 
 sacredness of tie between such parties as admitted not 
 of severance, but for legal offences or with the inter- 
 vention of grave authority." 
 
 The eloquent language of Lord Stowell {Evans v. 
 Evans, 1 Hag. Cons. Rep., 35) as to another relation 
 may well be applied here : " When people understand 
 that they must live together, except for a very few rea- 
 sons known to the law, they learn to soften by mutual 
 accommodation that yoke which they know they can- 
 not shake off; they become good husbands, and good 
 wives, from the necessity of remaining husbands and 
 wives ; for necessity is a powerful master in teaching 
 the duties it imposes." 
 
 RIGHT TO A HEARING BEFORE RECTORSHIP CAN BE 
 TERMINATED. 
 
 It has already been shown that the Wardens and 
 Vestrymen of a Parish have no power whatever to 
 dismiss a Rector without his consent. If they desire 
 a severance of the pastoral tie, and they and the Rec- 
 tor be not agreed in respect thereto, recourse must be 
 had to the Bishop of the Diocese. The second section 
 of Canon 38 of the Digest provides that in case of any 
 such difference between a Rector and a Vestry or Par- 
 ish, which may not be satisfactorily settled by the 
 Bishop, then the Bishop "may ask the advice and 
 consent of the Standing Committee of the Diocese or 
 of the Council of Advice of the Missionary District, 
 
246 LA W OF THE CHURCH, 
 
 and, proceeding with its aid and counsel, shall be the 
 ultimate arbiter and judge." The judgment of the Bish- 
 op may be rendered without any hearing being accorded 
 to the Rector or to the Parish, and it may be for this rea- 
 son that the Canon inflicts no penalty on the parties in 
 case of a refusal to abide by such judgment, leaving to 
 the several Dioceses to provide the penalty for such re- 
 fusal and what further proceedings shall then be taken. 
 Section iv. of the same Canon provides that this 
 Canon shall not apply in any Diocese which has made, 
 or shall hereafter make, provision by Canon upon this 
 subject, nor in contravention of any right of any Rector 
 or Parish, under the law of the civil authority. 
 
 But few Dioceses have legislated upon this subject, 
 and the Canons of such Dioceses relating thereto arc- 
 not so materially variant from Canon 38 of the Digest 
 as to require separate consideration. 
 
 While the Bishop is the ultimate arbiter and judge 
 in all cases of disagreement between a Rector and a 
 Vestry or Parish, and can issue an order terminating 
 the pastoral relation between the parties, he cannot 
 issue such order, or subject such Rector to a penalty, 
 upon any ex parte statements, or without affording him 
 an opportunity to be heard in his own behalf. The 
 rule is well stated by Judge Hoffman (" Ecc. Lata," 
 pp. 269, 270). In considering the question of the dis- 
 missal of Ministers he says : " When the sanction of the 
 Ecclesiastical Authority is sought, a duty is imposed, 
 as well as a power conferred. It cannot concur on any 
 ex parte statements, or without an examination. The 
 right to be heard is a Common Law right, and must be 
 observed, before any penalty of any description can be 
 lawfully inflicted. 
 
THE RECTOR. 247 
 
 " If the consequence of a dismission with concur- 
 rence is to dissolve and discharge the civil rela- 
 tions and contracts of the parties, it can only be so 
 permitted when the essential rules of the law are ob- 
 served. A competent authority to hear and decide — 
 a proper reasonable notice of the matters objected to 
 — an opportunity to meet and reply to them, are funda- 
 mental." 
 
 The right of the Rector to be heard in his own de- 
 fence was strongly affirmed by the Supreme Court of 
 New Jersey, in the important case of Jennings v. Scar- 
 borjugh et al. (56 N. J. L. R., 401). 
 
 From the statement of the case, it appears that one 
 Jennings, a regularly ordained Minister of the Church, 
 was canonically transferred to the Diocese of New Jer- 
 sey, in May, 1889, and called to the Rectorship of 
 Grace Church, Westfield, N. J., September 29, 1890. 
 Dissensions having arisen in the Church, the Bishop, on 
 February 27, 1893, made the following order: 
 
 " I. The Rev. J. B. Jennings shall cease to be Rector 
 of the Parish of Grace Church, Westfield, on March 15, 
 1893. II. The Parish of Grace Church, Westfield, 
 shall pay to the Rev. J. B. Jennings all arrears of salary 
 due at that time." 
 
 The purport and effect of this order was to dissolve 
 the pastoral relation of the said Jennings with his Par- 
 ish. The proceedings, of which this order was the out- 
 come, were instituted by a petition dated February I, 
 1893, and signed by all the persons who at that time 
 were Wardens and Vestrymen of the Church ; it was 
 addressed to the Bishop of the Diocese, and asked for 
 a dissolution of the pastoral tie existing between the 
 Parish and its Rector, Jennings, in accordance with 
 
248 LA W OF THE CHURCH. 
 
 Title III., Canon 4, of the Constitution and Canons of 
 the Diocese. 
 
 Section i. of this Canon provides that in case of a seri- 
 ous difference between the Rector of any Church and 
 the congregation thereof, it shall be lawful for a ma- 
 jority of the Vestry to make a representation to the 
 Bishop of the facts in the case, and agreeing - to submit 
 to his decision in the matter; they shall at the same 
 time serve a copy of the representation on the Rector. 
 
 Section ii. makes it the duty of the Bishop to seek to 
 bring the parties to an amicable conclusion in the mat- 
 ter. 
 
 Section iii. provides that if the matter be not ami- 
 cably settled, then the Bishop shall convene the Stand- 
 ing Committee, and shall give notice to the parties to 
 appear and present their proofs at such time and place 
 as he may appoint. 
 
 Section iv. provides that the Bishop, with the advice 
 and concurrence of the majority of the members of the 
 Standing Committee who shall have been present at 
 the hearing, shall make such order as he may deem best 
 for the true interests of the Church. 
 
 Section v. provides that if any agreement made under 
 Section ii., or any order made under Section iv., of this 
 Canon be disregarded, the Bishop may convene the 
 Standing Committee, and after hearing such further 
 proofs and arguments as may be presented to him, 
 make such further order as he may think proper, which 
 order shall have the same effect as an order made un- 
 der Section iv. of the Canon. 
 
 Upon the presentation of the petition of the War- 
 dens and Vestrymen, the Bishop, as it would appear 
 from the statement of the case, without notice or hear- 
 
THE RECTOR. 249 
 
 ing the said Jennings or his proofs, and without con- 
 vening the Standing Committee, made an order dated 
 February 4, 1893, containing his decision that Mr. Jen- 
 nings should cease to be the Rector of this Church, on 
 and after February 15, 1893, and that the Wardens and 
 Vestrymen of the Church should pay Mr. Jennings all 
 a; rears of salary up to that date. 
 
 This order of February 4, 1893, " which," the Court 
 says, "is properly referable to the 2d section of the 
 Canon as an effort to obtain an amicable conclusion of 
 the differences between the parties," was, with a copy 
 of the petition, transmitted to Jennings, by the Bishop. 
 
 In a letter to the Bishop dated February 10, 1893, 
 Mr. Jennings declined to accede to the Bishop's order, 
 and asked that if the case must go to the Standing Com- 
 mittee, to let it be done in accordance with the Canon, 
 and that he did not believe the Bishop's order received 
 by him was in accordance with Title III., Canon 4, 
 Section iv. 
 
 The Bishop then called a meeting of the Standing 
 Committee under Section v. of the Canon, and sent a 
 notice to Mr. Jennings that he had called a meeting of 
 the Standing Committee under the said section. 
 
 At the meeting of the Standing Committee thus 
 called, Mr. Jennings was present, but no proofs were 
 presented. Nor was he, in the opinion of the Court, 
 accorded a hearing as provided for in the Canon. After 
 hearing the statement of the Vestry of the Church, and 
 the statement of Mr. Jennings, the Bishop made an 
 order that Mr. Jennings should cease to be Rector on 
 March 15, 1893 The case came before the Supreme 
 Court on a writ of certiorari. 
 
 The Court in delivering their opinion said : " The 
 
250 LAW OF THE CHURCH. 
 
 Bishop's order of February 4, not having resulted in an 
 agreement between the parties, the procedure to dis- 
 solve the pastoral relation in invito, should have been 
 under Sections iii. and iv. of the Canon and not under 
 Section v. 
 
 " There is a distinction of great importance between 
 the procedure prescribed by Section iii., and proceeding 
 under Section v. . . . Sections iii. and iv. constitute 
 a tribunal consisting of the Bishop and the Standing 
 Committee for the hearing of proofs and arguments 
 presented before it. After such hearing is concluded, 
 the Bishop may make such an order in rogard to the 
 matter as he may think to be just and for the true in- 
 terests of the Church, provided the same receives the 
 concurrence of a majority of the Standing Committee 
 present at the hearing. . . . The provision under 
 Section v. is by way of an appeal from an order made 
 under some one of the preceding sections." 
 
 After showing that the notice to the Vestry of the 
 Church, and to Mr. Jennings, stated that the Standing 
 Committee was summoned under the provisions of 
 Section v. of the Canon, the Court said : " We 
 think the prosecutor [Jennings] was not entitled to 
 be represented by counsel at the hearing, but that he 
 was entitled as of right to a hearing before the com- 
 mittee, pursuant to Sections iii. and iv. of the Canon, 
 especially as the result of the deliberations of that 
 tribunal might deprive him of property rights, which, 
 under the general Canons of the Church, inured to 
 him in virtue of his rectorship. . . . Courts of law 
 will not interfere to control the proceedings of Eccle- 
 siastical bodies in spiritual matters which do not affect 
 the civil rights of individuals, nor will they interfere 
 
THE RECTOR. 251 
 
 with the action of the duly constituted authorities of 
 religious societies in matters purely discretionary. 
 {Livingston v. Trinity Church, 16 Vroom, 230.) 
 But where, as in the present case, the civil rights of 
 an individual are involved, jurisdiction is committed 
 to the courts of law to protect those rights, which the 
 Court cannot discard. ... As already appears, the 
 course of procedure for dissolving the pastoral relation 
 of the Rector with his Parish is, by the Canons of the 
 Episcopal Church, specially prescribed. An order dis- 
 solving that relation, not made in conformity with the 
 Canons, is coram non judice. 
 
 " Nor is there, by the law of the Episcopal Church, 
 another tribunal to which an appeal may be made. 
 . . . With respect to the judgment that shall be 
 pronounced by the Bishop with the concurrence of the 
 committee, after a hearing, the authority of the Bishop 
 is discretionary and supreme. The prosecutor [Jen- 
 nings] is an ordained Minister of the Church, is sub- 
 ject to the laws of the Church and to its constituted 
 authorities, but at the same time he is entitled to a 
 hearing in compliance with the laws of the Church be- 
 fore judgment is pronounced. The proceedings on 
 which the order in question was made are not in com- 
 pliance with the Canons of the Church, and for this 
 reason the order should be set aside." 
 
 This decision clearly establishes the right of a Rec- 
 tor to be heard in his own defence, before he can be 
 subjected to any penalty or deprived of any right. 
 
 The maxim of law that every man is presumed to be 
 innocent until he is proved guilty, applies with special 
 force to a clergyman. 
 
 Canon 24, Section i., of the Digest enumerates the 
 
252 LA W OF THE CHURCH. 
 
 offences for which Ministers may be tried and punished. 
 
 Unfortunately, as it seems to the author, the mode 
 of procedure in the trial of a clergyman, other than a 
 Bishop, is left to the regulation of the respective Dio- 
 ceses. Article IX. of the Constitution merely provides 
 that Presbyters and Deacons shall be tried by a Court 
 instituted by the Convention of the Diocese in which 
 they are canonically resident. While Canon 24, Sec- 
 tion i., directs that in case of a Clergyman "being 
 found guilty, he shall be admonished, suspended, or 
 deposed from the Ministry, as shall be adjudged by the 
 Trial Court.'' Provision is made for an appeal to the 
 Court of Review, but the powers of that Court are 
 extremely limited in all cases involving any question 
 of doctrine, faith, or worship. 
 
 Accordingly, the methods of presenting an offend- 
 ing Clergyman, or of bringing a complaint against him, 
 as well as the methods of conducting the trial, adopted 
 in the various Dioceses, vary in detail and sometimes 
 in principle. As the consideration of this subject does 
 not properly fall within the scope of this work, refer- 
 ence to these varying details and principles is un- 
 necessary. 
 
 I have already said that, in my judgment, the mode 
 of procedure in the trial of a clergyman is tinfortunately 
 left to the regulation of the respective Dioceses. 
 
 I call it unfortunate, because it renders the depart- 
 ment of the Judiciary the weakest and most defective 
 part of our whole Ecclesiastical system, in fact deprives 
 the Church of any judicial system having aught of 
 practical value. 
 
 Uniformity of judicial proceeding, judicial interpre- 
 tation, and judicial decision, so vitally important to the 
 
THE RECTOR. s 53 
 
 peace and prosperity of the Church, are impossible of 
 attainment under our present Constitution and Can- 
 ons. If the members of the American branch of the 
 Catholic Church are to be kept together with one 
 mind and one heart, in her various Diocesan parts, 
 then must the Church supply the need of clergy and 
 people alike, a settled court of justice. 
 
 To-day, a rubric or Canon of the Church may receive 
 one interpretation in one Diocese and a contrary inter- 
 pretation in another. In the one Diocese, under one 
 interpretation of some rubric or Canon of the Church, 
 a Clergyman may be convicted and punished for a vio- 
 lation of such rubric or Canon. Convicted in the one 
 Diocese, he knows that in the other he would be ac- 
 quitted of the same offence. Doubting, as he well 
 might, the propriety, if not the legality of the punish- 
 ment inflicted upon him, he would fain appeal to some 
 tribunal competent to decide between these conflict- 
 ing interpretations, but the Church has no final tribu- 
 nal to which such an appeal can be made concerning 
 any question of doctrine, or faith, or worship. 
 
 The Courts of Review, established in 1904, to hear 
 and determine appeals from decisions of Trial Courts, 
 have no powers, under the proviso of Canon 30, Section 
 v., to determine any question wherein the doctrine, or 
 faith, or worship of the Church is involved, " until after 
 the establishment of an ultimate Court of Appeal." They 
 presuppose, and depend for their efficiency, on a Court of 
 Appeal as permitted by Article IX. of the Constitution. 
 
 These two things, the Church, in my judgment, sadly 
 needs to-day, a uniform mode of procedure for the con- 
 stituting of courts and the conducting of trials in every 
 Diocese, and a " Court of Appeals, with power authori- 
 
254 LAW OF THE CHURCH. 
 
 tatively and finally to settle the true interpretation of 
 Constitutions and Canons, ut sit finis litium." 
 
 THE RECTOR AN INTEGRAL PART OF THE VESTRY. 
 
 It has already been shown that the Vestry is com- 
 posed of three integral parts — the Rector, the Wardens, 
 and the Vestrymen ; and that each part personally, as in 
 the case of the Rector, or by representation, as in the 
 case of the Wardens and Vestrymen, must attend, to 
 constitute a legal meeting of the Vestry. This is the 
 law of the Church, except in such States or Dioceses 
 where the Statute or Canon Law provides otherwise. 
 These exceptions have already been sufficiently noted 
 in the chapter relating to " The Vestry." 
 
 RIGHT TO CALL PARISH AND VESTRY MEETINGS. 
 
 The Rector has the right, in the first instance, to 
 call all meetings of the Parish and Vestry. In some 
 Dioceses, as already noted, this right is shared by the 
 Wardens, and in a few Dioceses by a certain specified 
 number of the Vestrymen. It may also be said that it 
 is not only the right, but the duty, of the Rector to call 
 such meetings when necessary. 
 
 In many of the Dioceses, the Canon Law, or the law 
 of the State, provides that the Rector "shall call" 
 meetings of the Vestry, and, in some cases, special 
 meetings of the Parish, when so requested by the War- 
 dens, or a certain number of the Vestrymen, or both. 
 The courts have held that when the law so provides, a 
 writ of mandamus will lie to compel him to call a meet- 
 ing when so requested. 
 
 (For a fuller discussion of this subject, see Chapter 
 IV.) 
 
THE RECTOR. 255 
 
 PRESIDING OFFICER AT PARISH AND VESTRY 
 MEETINGS. 
 
 It may be stated as a rule with but very few excep- 
 tions, that the Rector, when present, presides at all 
 meetings of the Parish, and of the Vestry. 
 
 From the earliest times of the Christian Church the 
 Rector of the Parish, virtute officii, presided at all meet- 
 ings thereof. The very word Rector implies govern- 
 ing in matters concerning the Parish. The courts 
 have decided that the right of a Rector to preside 
 at such meetings is a "Common Law right," he being 
 " the functionary who is at the head of the Parish for 
 all Ecclesiastical purposes." 
 
 RIGHT TO VOTE AND GIVE THE CASTING VOTE IN 
 CASE OF A TIE. 
 
 The Rector has a Common Law right to vote at all 
 Parish meetings. " He has a right of sitting from his 
 freehold in the church." — {Baker & Downing v. Wood, 
 1 Cur ten' Rep., 507.) 
 
 The Rector has also the right to vote upon all ques- 
 tions presented at a Vestry meeting. He also has the 
 right to a casting vote in case of a tie, except in those 
 Dioceses where the Statute or Canon Law expressly 
 deprives him of that right. — {People v. Rector, etc., 
 48 Barb. [N. K], 603; R. v. DOyly, 12 Adolp. & Ellis, 
 139; Blunt' s u Book of Church Law" p. 302.) 
 
 (For exceptions to this rule, see discussion of this 
 question in the preceding chapter.) 
 
 Except in those Dioceses where the Statute or Canon 
 Law provides otherwise, the Rector when present has 
 the right to decide all questions relating to the quali- 
 fications of voters, at all meetings of the Parish. The 
 
256 LA W OF THE CHURCH. 
 
 right of presiding involves also the right of deciding 
 upon the qualifications of voters. — {Hoffman's "Law 
 of the Church" p. 244; Blunfs " Book of Church Law" 
 p. 302; Hoffman s " Ecc. Latv" p. 66.) 
 
 RIGHT TO THE KEYS AND CONTROL OF THE 
 CHURCH BUILDINGS. 
 
 The Rector of a Parish has the exclusive right to the 
 keys of the church. He also has possession of and ex- 
 clusive control over the church edifice and all other 
 Parish buildings used for Ecclesiastical purposes. The 
 law of the English Church on this subject is well stated 
 by Blunt in his "Book of Church Lazv" {page 273, jth 
 Ed.). He says: "The whole church and churchyard 
 being vested in the Rector or Vicar, as his freehold, ac- 
 cess to either is entirely under his control. He alone 
 has any legal right to the keys of the churchyard, bel- 
 fry, nave, vestry and chancel ; and no one can legally 
 use them for entrance thereto, except by his permis- 
 sion. ' The Minister,' said Sir John Nicholl, ' has, in 
 the first instance, the right to the possession of the key, 
 and the Church Wardens have only the custody of the 
 church under him. If the Minister refuses access to 
 the church on fitting occasions, he will be set right on 
 application and complaint to higher authorities.' " — 
 {Lee v. Matthews, 3 Hagg.Ecc, 169.) 
 
 In another place he says {Idem, pp. 322, 323) : " The 
 site and fabric of the church, with all that is perma- 
 nently attached to that fabric, are thus, in the eye of 
 the law, the property of the incumbent for the time 
 being. The rights thus acquired carry with them the 
 exclusive right of access to the church, and also (sav- 
 ing any established right of way) to the churchyard ; 
 
THE RECTOR. 257 
 
 so that none can lawfully exclude him from any part of 
 them, nor any enter them of their own right, but only 
 by his permission, so long as he is incumbent. When 
 he is inducted, the keys of the church are assigned to 
 him, by the ceremony of laying his hand upon some of 
 them, and all of them are henceforth his property." — 
 {Redhead v. Wait et a/., 6 Law Times \_N. 5.], 580; 
 Marshall v. Andrew, Ecc. Gas., Aug., 1871 ; Harward 
 v.Arden, Ecc. Gas., 1867 ; Ritchins v. Cording ly, Law 
 Rep., 3 A dm. and Ecc, 113 ; Sir R. Pltillimores " Ecc. 
 Judg." p. 134 ; Dewdnyv. Good ct al., jjur. [N. S.] 637.) 
 
 In the case last cited the Court held that "the 
 church is the Rector's freehold The key of the 
 church is the property of the Rector, as was long ago 
 decided by Lord Stowell, and must be delivered up by 
 the Church Wardens." 
 
 This is unquestionably the English Law on the sub- 
 ject. It is also the general Ecclesiastical Law, and the 
 Law of the American Church to-day. The mind of the 
 Church on this subject, as shown in the earlier part of 
 this chapter, is plainly evidenced in the " Office of In- 
 stitution," which she set forth as the best substitute 
 that circumstances would permit for the ceremonies of 
 presentation, institution and induction of the English 
 Church. 
 
 This Office is analogous to the English " Office of 
 Induction," and the Church, in so framing it, intended 
 thereby to confer upon her Ministers all the advan- 
 tages and rights granted by the English Office, so far as 
 the circumstances of the country would permit; and by 
 the formal delivery of the keys, as provided for in that 
 Office, she intended to confer the exclusive control of 
 the church, as to its uses, upon the Rector thereof. 
 
258 LA W OF THE CHURCH. 
 
 The courts have held that the American " Office of 
 Induction," which, as we have shown, is identical with 
 the present " Office of Institution," was intended by 
 the Church as a substitute for the English "Office of 
 Induction," and that she intended therein to confer, so 
 far as was possible, the same rights upon a Rector that 
 are conferred by the English office. — (See Humbert v. 
 St. Stephens Church, i Edzvard's Ch. Rep., 308.) 
 
 In the "Office of Institution," the Church re- 
 quires the chosen representative of the Wardens and 
 Vestrymen, in whom, when there is no Rector, is 
 vested the fee and the control of the church edifice, to 
 
 say : " In the name and behalf of Parish {or 
 
 Church), I do receive and acknowledge you, the Rev. 
 
 , as Priest and Rector {or Assistant Minister) of 
 
 the same ; and, in token thereof, give into your hands 
 the keys of this church." 
 
 This formal presentation of the keys is an act of the 
 deepest significance. They are given absolutely, 
 without any reservation whatever, either express or 
 implied, to the Rector, by the Trustees of the property. 
 And in receiving the keys of the church, the Rector 
 receives the power of exclusive control over the 
 church — " the power of entrance, occupancy and con- 
 trol, of opening and shutting. Where is there any 
 power to take them back, or to impose any limitation 
 upon their use? If there is any existing limitation to 
 this grant of power, if there are any parts of the build- 
 ing which he cannot enter and control at will, the 
 whole solemnity is travestied in this act of delivering 
 the keys." — (Bishop Wilmer's Decision in the Case of 
 Rector v. Vestry of St. John's Church, Mobile, A la., p. y6.) 
 
 While there can be no doubt about the propriety 
 
THE RECTOR. 259 
 
 and advisability of using the "Office of Institution" 
 throughout the Church, it is to be remembered that 
 this Office confers no powers upon the Rector not al- 
 ready possessed by him before Institution, it is only 
 declaratory of those powers. The delivery of the keys 
 to the Rector is a token of acknowledgment by the 
 Vestry of the Parish or Church, that they have re- 
 ceived him as their Priest and Rector, and a formal 
 recognition of his right, virtnte officii, to the exclusive 
 control of the church buildings. Judge Hoffman 
 ("Law of the Church" p. 293), in commenting on the 
 effect of the " Institution Office " upon the contracts 
 between Vestries and Rectors, states certain results, 
 which he says " are deducible upon the whole matter.'* 
 Among these are the following : " That the Institu- 
 tion Office is not essential to give to a Minister any 
 right to the emoluments attending the cure ; but such 
 (in the absence of express stipulation) are as recover- 
 able in the civil tribunals without as with it. 
 
 " Neither is it necessary, in order to vest the incum- 
 bent with that use of, and power over, the church 
 building and precincts which is attendant upon his 
 office, and requisite for its proper performance ; that 
 what such power is, may be ascertained from the law 
 of the Church, judicial decisions, and the reason of the 
 thing — that the delivery of the keys has no more legal 
 effect upon this question than the call and an occupa- 
 tion pursuant to it." — (See Idem, p. 265.) 
 
 He also states (" Ecc. Law," p. 86)" that the call, ac- 
 ceptance and entering upon the duties of a Rector 
 (without any special restrictions agreed upon), as fully 
 establishes the relation between a Rector and the Par- 
 ish as the Institution Office does.'* 
 
260 LA W OF THE CHURCH. 
 
 The courts have uniformly adopted this view. 
 
 In Youngs v. Ransom (31 Barb., 49) the Supreme 
 Court of the State of New York cited and approved 
 the opinion expressed by Judge Hoffman, regarding 
 the use of the Institution Office, as above cited 
 {"Law of the Church" p. 293). Justice Emmott, in 
 delivering the opinion of the Court, said : " Upon a 
 careful consideration of Judge Hoffman's argument and 
 of his authorities, I entirely concur in his views of the 
 effect of the use or neglect of this particular service." 
 
 The conclusions of Judge Hoffman, that the control 
 and possession of the church edifice appertains exclu- 
 sively to the Rector, and also the English Ecclesiasti- 
 cal Law on this subject, were cited and approved in 
 the important case of Lynd v. Menzies et al. (33 N.J. 
 L. Rep., 162). This was an action on the case for for- 
 cibly preventing the Rev. William J. Lynd, Rector of 
 St. Barnabas' Church in the city of Newark, N. J., 
 from preaching in the church, and occupying the paro- 
 chial school-house. 
 
 In the statement of the case it appears that the 
 Rev. Mr. Lynd accepted a call to the rectorship of the 
 Parish in December, 1861, and in the month of June, 
 1862, was duly instituted. On the 27th of April, 1867, 
 he received a note from the two Wardens of the 
 Church, notifying him that on Easter Day, which was 
 then past, his connection as Rector of the Church 
 had ceased. On the next day, which was Sunday, 
 when he went to the church to officiate, he found the 
 church closed, and the doors so fastened as to prevent 
 his entering. In a few days afterward he was in a 
 similar manner excluded from the parochial school- 
 house. It was proved, on the trial of the case, that 
 
THE RECTOR. 261 
 
 such expulsions were the acts of the Wardens and 
 Vestrymen of the Church. The jury returned a ver- 
 dict in favor of the Rector, for one thousand dollars. 
 The case came before the Supreme Court on a motion 
 for a new trial. Chief-Justice Beasley, in delivering 
 the opinion of the Court, says: "What, then, is the 
 agreement into which a congregation of this denomi- 
 nation of Christians enters upon the call of a Rector? 
 So far as touches the matter in controversy, it plainly 
 appears to be this : They offer to the Minister receiv- 
 ing the call such rights in their temporalities as, by 
 the Ecclesiastical Law of their sect, belong to the of- 
 fice which is tendered, one of such rights being that of 
 preaching on Sundays in the church provided by the 
 congregation. Such an offer, therefore, can have 
 nothing to do with the title to the church edifice. No 
 matter in whom the title may reside, if the congrega- 
 tion has the use of the building, the Rector must, of 
 necessity, have the right to partake in such use. . . . 
 But there was a second objection taken on the argu- 
 ment, which was, that on the assumption of the exist- 
 ence of the right of the Rector to the privileges 
 claimed by him, still, it was said an invasion or dis- 
 turbance of such rights would not constitute the 
 ground of a suit at law. 
 
 " I cannot yield my assent to this proposition. The 
 nature of the right in question forbids such a result. 
 I think it is clear that, in right of his office, a Rec- 
 tor, by force of the law of this Church, has either the 
 possession of the church edifice, or has a privilege 
 which enables him to enter into it — such privilege be- 
 ing in the nature of an easement. Mr. Murray Hoff- 
 man, in his learned and interesting treatise on the Law 
 
262 LA W OF THE CHURCH. 
 
 of the Protestant Episcopal Church in the United 
 States, page 266, in remarking on the effect of the in- 
 corporation of Churches, states his views in these 
 terms, viz., ' The title, then, to the church and all 
 Church property is in the trustees, collectively, for all 
 corporate purposes; but there is another class of pur- 
 poses purely Ecclesiastical, as to which the statute did 
 not mean to interfere or prescribe any rule. These 
 are to be controlled by the Law of the Church.' And 
 the conclusion to which he comes is thus stated: 
 4 That the control and possession of the church edi- 
 fice upon Sundays, and at all times when open for Di- 
 vine services, appertains exclusively to the Rector.' I 
 have no doubt with regard to the correctness of this 
 view. 
 
 " By the English Ecclesiastical Law,which, although 
 somewhat modified by new circumstances and by 
 American usages and statutes, constitutes the sub- 
 stantial basis of the law controlling the affairs of this 
 particular Church, the possession of the church and 
 churchyard is in the incumbent. Nor does it make 
 any difference, in this respect, in whose hands the title 
 to the religious property is lodged, as, for example, in 
 case the freehold to the church and churchyard is in 
 the Rector, nevertheless, the Curate will be deemed in 
 possession for all Ecclesiastical purposes. 
 
 " In exemplification of this rule, I refer to an inter- 
 esting discussion of the question in Grecnslade v. 
 Darby, decided during the present year by the Court 
 of Queen's Bench (L. R., 3 Q. B., 421). 'I quite 
 agree with the former decisions,' such is the declara- 
 tion of Chief-Justice Cockburn, ' that an incumbent 
 has possession of the churchyard, as well as of the 
 
THE RECTOR. 263 
 
 church, for all spiritual purposes; therefore, for burials 
 and for all purposes attached to his office, he has un- 
 doubtedly uncontrolled possession of the churchyard.' 
 To the same purpose is the rule laid down by Cripps, 
 in his treatise on the ' Church and Clergy,' p. 158; see 
 also 1 Burns ' Ecc. Lazu,' 377; Stocks v. Booth, 1 
 T. R., 428. If, then, we adopt this theory — and I per- 
 ceive no reason for rejecting - it — that for the purposes of 
 the exercise of his sacerdotal functions, the Rector be- 
 comes possessed of the church buildings and grounds, 
 it will be difficult to devise any pretext in denial of 
 the right of such officer to a civil remedy if such pos- 
 session be invaded." 
 
 The Rector's right of action was sustained, and the 
 appeal dismissed. This decision of Chief-Justice Beas- 
 ley was cited and approved in Livingston v. Rector et 
 al. (45 N. J. L. Rep., 230), in which the Court held: 
 " The English Ecclesiastical Law forms the basis of 
 the law regulating the affairs of the Episcopal Church 
 in this country, and is in force except so far as it has 
 been modified and changed by statute and by the 
 usages and Canons of the Church." 
 
 In Jennings v. Scarborough et al. (56 N. J. L. Rep., 
 401), the Court, after citing and approving this case of 
 Lynd v. Mtnzies et al., says: "These contractural 
 and property rights are vested in a Rector so long as 
 the Rectorship continues." 
 
 In Batter son et al. v. Thompson et al. (8 Phil. Rep., 
 251), the Court says: " I quite concur with Chief-Jus- 
 tice Beasley in the remark made by him in the case 
 heretofore cited {Lynd v. Menzies), when he said: ' No 
 matter in whom the title may reside, if the congrega- 
 tion has the use of the building, the Rector must, of 
 
264 LA W OF THE CHURCH. 
 
 necessity, have the right to partake in such use '; and, 
 I may add, not only that he may have possession of the 
 building, but that he may of right perform his duties 
 there in that place, and not elsewhere, unless at his 
 own option." — (See also Humbert v. St. Stephen's 
 Church, I Edw. Ch. Rep. [N. Y.], 308 ; Runkelv. Wine- 
 miller, 4 H. & McH. [Md.~], 429; Tetrett et al. v. Taylor 
 et al., 9 Cranch, 43; Cargill v. Sewall, 19 Me., 288.) 
 
 The conclusion deducible from these authorities and 
 decisions of the Courts above cited is irresistible, that 
 the possession and control of the church edifice apper- 
 tains exclusively to the Rector. 
 
 The conclusion is also equally clear that the Rector 
 has the exclusive possession and control of all other 
 buildings used by the Church for Ecclesiastical pur- 
 poses. — {Humphrey's " Law of the ChurcJi" p. 34.) 
 
 EXCLUSIVE CONTROL OVER THE SERVICES OF THE 
 CHURCH. 
 
 The Rector of necessity, and in the very fitness of 
 things, has entire and exclusive control over, and the 
 ordering of, the Divine service of the Church, subject 
 only to the laws of the Church, and to those who " are 
 over him in the Lord/' The Wardens and Vestrymen 
 have no control whatever in the matter. The English 
 Ecclesiastical Law is thus stated by Blunt in his 
 " Book of Church Law," p. 330 : 
 
 " The arrangements for Divine service are under the 
 absolute control of the incumbent, subject, of course, 
 to the laws laid down in the Prayer Book and else- 
 where. It is for him to decide whether there shall be any 
 services beyond the morning and evening, and whether 
 the Holy Communion shall be celebrated at the same 
 
THE RECTOR. 265 
 
 time when Morning Prayer is said, or whether they 
 shall form separate services. The hours of Divine ser- 
 vice are also to be fixed by the incumbent. But, above 
 all, it rests with the incumbent to control all those 
 parts of Divine service which are not actually per- 
 formed by the Clergy." That this is also the law of the 
 American Church will not, I think, be seriously ques- 
 tioned. 
 
 A review of the laws governing Parishes, going 
 back to the first authentic records thereof, clearly evi- 
 dences that at no time, and by no law, has there ever 
 been given to the Wardens and Vestrymen of a Parish, 
 or to any layman, expressly or by implication, the 
 slightest right to interfere in any manner whatever 
 with a Priest-Rector in the "due and lawful exercise 
 of his holy office." He is responsible for the proper 
 discharge of his official duties to the Ecclesiastical 
 Authority of the Diocese alone. The mind and intent 
 of the Church on this subject is clearly set forth in the 
 " Office of Institution," in which she charges the insti- 
 tuted Minister, that he is " faithfully to feed that por- 
 tion of the flock of Christ " which is entrusted to his 
 care ; not as a pleaser of men, nor of the Wardens and 
 Vestrymen of the Parish, but to continually bear in 
 mind that he is accountable to the Ecclesiastical Au- 
 thority of the Church here, " and to the Chief Bishop 
 and Sovereign Judge of all, hereafter." Upon the 
 Rector is imposed by the Church the sacred trust and 
 bounden duty of bringing all the members of the Par- 
 ish committed to his care " into that agreement in the 
 faith and knowledge of God, and to that ripeness and 
 perfectness of age in Christ, that there be no place left 
 in them for error in religion or for viciousness of life." 
 
266 LA W OF THE CHURCH. 
 
 He is possessed of full power to perform " every act 
 of sacerdotal function among his people," and with 
 the performance of those functions no one may inter- 
 fere in any manner whatsoever, save only the Bishop, 
 and other chief Ministers, who, according to the Can- 
 ons of the Church, may have the charge and govern- 
 ment over him and whom, in the solemn moment of his 
 ordination, he promised " reverently to obey, follow- 
 ing with a glad mind and will their godly admonitions, 
 and submitting himself to their godly judgments." 
 
 If a Warden or Vestryman, or any layman be 
 tempted to criticise or oppose the ministrations of his 
 Priest and Rector, let him read carefully the Office for 
 the " Ordering of Priests," and the " Office of Institu- 
 tion " ; then will he learn, that to the Rector alone has 
 been committed by " the imposition of divinely con- 
 stituted hands," "authority to execute the office of a 
 Priest in the Church of God," " and to preach the 
 Word, and to minister the holy Sacraments in the con- 
 gregation, where he shall be lawfully appointed there- 
 unto " ; and that no mere distaste for his methods, nor 
 preference for other agencies, will justify him in any 
 course of inaction, or of opposition to the ministrations 
 of the Rector, provided those ministrations be in ac- 
 cordance with the doctrine, discipline and worship of 
 the Church. 
 
 The Rector has exclusive direction and control of 
 the Sunday-school of the Parish, the appointment 01 
 its officers and teachers, who are his assistants in the 
 work. He is also the head of all Guilds and other 
 educational and charitable associations within the 
 Parish, and which can be formed only with his consent, 
 and are subject to his control. 
 
THE RECTOR. 267 
 
 The right to allow any other Clergyman of the 
 Church, not his Bishop, to officiate in the church edi- 
 fice, or to minister any office of the Church within the 
 limits of his Parish, belongs exclusively to the Rector. 
 Canon 20 expressly forbids the officiating therein of 
 any person who has not been duly licensed or or- 
 dained ; but provision is made that the Bishop may 
 permit "Christian men, who are not Ministers of this 
 Church, to make addresses in the Church, on special 
 occasions." This power belongs only to the Bishop, 
 and not to the Rector. 
 
 CONTROL OVER THE MUSIC OF THE CHURCH. 
 
 The Rector, by virtue of his responsibility for, and 
 control over, the services of the Church, has also exclu- 
 sive control over, and direction of, the music of the 
 Church. 
 
 The English Ecclesiastical Law on the subject is 
 stated by Dr. Blunt {"Book of Church Law," pp. 330, 
 331) as follows : 
 
 "Above all, it rests with the incumbent to control all 
 those parts of Divine service which are not actually per- 
 formed by the Clergy. Thus Lord Stowell decided — in 
 a case where the Church Wardens instituted a suit 
 against their Clergyman for obstructing the singing of 
 the school children by introducing the accompaniment 
 of an organ — that ' the Minister has the right of di- 
 recting the service ; e. g., when the organ shall and 
 shall not play, and when the children shall and shall 
 not chant, though the organist is paid and the chil- 
 dren managed by the Church Wardens ' {Hutchins v. 
 Denziloe, 1 Hagg., 170). 'They must complain to the 
 
2 68 LA W OF THE CHURCH. 
 
 Ordinary if he introduces irregularities into the ser- 
 vice/— {Wilson v. M'Math, 3B.& A., 250.) 
 
 "In the case of. St. George's-in-the-East, the Bishop 
 of London declared: ' The law allows an incumbent to 
 have a choral rather than a read service, if he pleases; 
 and though I may highly disapprove, as I do, of for- 
 cing a choral service on an unwilling Parish, I can only 
 remonstrate; I have by law no power of forbidding, or, 
 if I forbid, of enforcing obedience to my mandate.' — 
 ("Ecc. Gaz.," Sept., 1859.) 
 
 " Similar language was uttered at a later date by the 
 Bishop of Lichfield in the case of St. George's, Wol- 
 verhampton." — {"Ecc. Gas." Jan., 1870.) 
 
 That this is also the law of the American Church, is 
 clearly evidenced by Canon 45, " Of the Music of the 
 Church," which reads as follows : " It shall be the duty 
 of every Minister to appoint for use in his Congrega- 
 tion hymns or anthems from those authorized by the 
 Rubric, and, with such assistance as he may see fit to 
 employ from persons skilled in music, to give order 
 concerning the tunes to be sung in his Church. It 
 shall be his especial duty to suppress all light and 
 unseemly music, and all irreverence in the perform- 
 ance." 
 
 This Canon was not enacted for the purpose of im- 
 parting authority to the Clergy over the music of the 
 Church ; that authority they already possessed, and 
 such possession was in no way questioned. Its pur- 
 pose was to make mandatory upon the Clergy the ex- 
 ercise of the power which was inherent in their office, 
 viz., to " give order" for the regulation of the music of 
 the Church. 
 
 It clearly follows that the Rector alone has the 
 
THE RECTOR. 269 
 
 right to say what anthems and tunes shall be sung, 
 when the organ shall and shall not play, when the 
 choir shall and shall not chant or sing, and what parts 
 of the service shall be read and what parts sung. The 
 Wardens and Vestrymen have no authority whatever 
 in the matter. Should the Rector introduce any ir- 
 regularities into the service, they have no right to in- 
 terfere, they can only complain to the Bishop. 
 
 The custom prevalent in some Parishes, of having a 
 " Committee on Music," appointed by the Vestry, if such 
 committee is given any authority whatever over the 
 music of the Church, is an unlawful infringement upon 
 the rights of the Rector, and is as illogical and as much 
 out of place as the appointment of a committee on ser- 
 mons would be. 
 
 The words of Bishop Wilmer, on this subject, in 
 rendering his decision in the case of "Rector v. Vestry 
 of St. Johns Church, Mobile, Ala." are so well chosen, 
 and so true, as to deserve their being read by the War- 
 dens and Vestrymen of every Church in the land. 
 In speaking of the relation of the Rector to the Wor- 
 ship of the Sanctuary, he says : " He is, by virtue of 
 his office, the Celebrant of Divine worship. That is 
 one of his special functions, conferred upon him in his 
 ordination. That is a part of his inherent preroga- 
 tive, not to be questioned nor invaded. 
 
 " Then, again, we come to consider what relation the 
 musical part of the service bears to the Worship of the 
 Sanctuary. It is, beyond question, with its Anthems 
 and Hymns of Praise and Adoration, together with 
 the accompaniment of Instruments and Choristers, 
 brought in to enliven and stimulate devotion, an in- 
 tegral part of Divine Worship — as essentially so as 
 
270 LA TV OF THE CHURCH. 
 
 the offering of Collects and Litanies. In right views 
 of the musical part of Divine Service, as only a varied 
 part of Worship, will be found the solution of the 
 main question embraced in this present ' Contention.' 
 The bringing in of Organ and Choir alters not a whit 
 the relation of the Clergy to the musical parts of the 
 Worship. All these accessories and accompaniments 
 are brought in to aid and enliven devotion, but the 
 Minister officiating is virtually the Celebrant, and is 
 the one leading and responsible person worshipping, in 
 accordance with the recognized principle, ' Qui facit 
 per alium facit per se.' " 
 
 HIS RIGHT TO APPOINT THE ORGANIST AND MEMBERS 
 OF THE CHOIR. 
 
 While the Vestry have the right to determine the 
 amount of salary, if any, to be paid to the Organist 
 and members of the Choir, the Rector has the right of 
 appointment. Under the English Ecclesiastical Law 
 " The incumbent, by virtue of his responsibility for, 
 and control over, the services, has the right of saying 
 whether the organ shall or shall not play, and who 
 shall play on it. — ( Wyndham v. Cole, L. R., I P. D., 130.) 
 
 " The Organist is, in fact, in the same position with 
 regard to the incumbent as are the Choirmen and the 
 Choristers. If there was, as there probably some- 
 times is, a special endowment for an Organist, the 
 electors, whoever they were, could confer upon their 
 nominee the right to the stipend ; but they could not, 
 as against the will of the incumbent, enable him to 
 play the organ." — {Blunts "Book of Church Law" p. 
 297. See also, 1 Burns " Ecc. Law" [Ed. 1842], 
 374 a. b.) 
 
THE RECTOR. 271 
 
 The provision of the Canon of the American Church, 
 (Canon 45), " That it shall be the duty of every Minister 
 . . . with such assistance as he may see fit to em- 
 ploy from persons skilled in music, to give order," etc., 
 is a direct incorporation of the principles of the Eng- 
 lish Ecclesiastical Law upon this subject, and clearly 
 recognizes the right of the Rector to the appointment 
 of the Organist and Choristers, the " persons who are 
 skilled in music." As has before been stated, this 
 Canon was not enacted for the purpose of conferring 
 authority in the matter upon the Clergy ; only to com- 
 pel them to exercise the prerogative they already pos- 
 sessed, virtute officii. The history of the Canon is, in 
 brief, as follows : In order to "suppress all light and 
 unseemly music, and all indecency and irreverence," 
 in the performance of the services of the Church, 
 which, as early as 1832, seemed to have become only 
 too common, the General Convention of that year 
 passed a " resolution " calling upon the Clergy, not the 
 Vestry, as Bishop Wilmer well says, "to give order" 
 for the regulation of the music of the Church. This 
 " resolution " was ordered to be prefixed to the " Col- 
 lection of Psalms and Hymns," which at that time 
 formed the hymnology of the Church. The " resolu- 
 tion " not having accomplished the desired purpose, 
 the General Convention in 1874 changed the " resolu- 
 tion " to a Canon, making it mandatory upon the Rec- 
 tor of every Parish to exercise his inherent right, and 
 with such assistance as he, the Rector, might " see fit 
 to employ, from persons skilled in music, to give 
 order," etc. 
 
 Bishop Wilmer, in his " decision " before cited, 
 comments most clearly upon this Canon, and his con- 
 
272 LA W OF THE CHURCH. 
 
 elusions seem irresistible. He says : u The parties 
 designated as ' skilled in imtsic ' cannot be reasonably 
 supposed to be an unknown and haphazard set of peo- 
 ple — legislation takes note of known and recognized 
 parties — but are most assuredly the Choir, and the 
 Organist the chief member thereof. There is no other 
 collection of people in a congregation known as ' skilled 
 in music' but the Choir, and no other collection was in 
 the minds of the Legislators who framed the Canon. 
 This is without doubt the only reasonable interpreta- 
 tion of the language of the Canon." 
 
 " The Minister, then, is to employ the assistance 
 needed, and it must be such assistance ' as he may see 
 fit' In a word, he must select the Organist and the 
 Choir. Any other interpretation, by which the Vestry 
 or any other party should have the selection of ' the 
 persons skilled in music,' would introduce an element 
 of conflicting authority, likely to thwart or be sub- 
 versive of the authority of the Minister, and tending 
 inevitably to endless discord and confusion." 
 
 This testimony of Bishop Wilmer, as to what was 
 the "minds of the Legislators who framed the Canon," 
 is the more important and valuable, as the Bishop was 
 himself one of the " Legislators." Bishop Wilmer also 
 quotes the opinion of the Bishop of Maryland, which is 
 to the same effect. " As to the appointment of the 
 Choristers or Organist, the Canon of the General Con- 
 vention seems to settle that." [Citing Title I., 
 Canon 25 {now Canon 45), of the Digest^ " This places 
 the choice of the persons entirely under his [the Rec- 
 tor's] control and judgment ; and the latter part of the 
 same clause seems to give him power even to dismiss. 
 I have always felt that this was absolutely clear." 
 
THE RECTOR. 273 
 
 The late Bishop Stevens of Pennsylvania, who was 
 afterwards also one of the "Legislators" who framed 
 the Canon in question, in giving his decision in a case 
 in his Diocese in 1869, said: "The Rector has the 
 full right to select the Choir." 
 
 I submit that the only interpretation of the Canon 
 that is consonant with the well-settled principles of 
 Ecclesiastical Law is the interpretation that has been 
 given by the Bishops of the Church, as above cited, 
 and which recognizes the inherent right of the Rector 
 to appoint the Organist and the members of the Choir. 
 It is the only interpretation which, in my judgment, 
 the courts would place upon the Canon. For it is a 
 well-settled rule of interpretation, as before shown, that 
 such construction must, if possible, be given to a 
 statute as will not be in conflict with the general prin- 
 ciples of law; also, that language susceptible of more 
 than one construction must receive that construction 
 which will bring it into harmony with the legislative 
 purpose aimed at, rather than that which will tend to 
 neutralize and subvert the very purp se for which the 
 law was enacted. 
 
 It is difficult to see how the right of the Rector to 
 appoint the Organist and members of the Choir, to de- 
 cide as to the personnel of his assistants in rendering 
 the Divine service of the Church, can well be ques- 
 tioned. It is the Law of the English Church; it is gen- 
 eral Ecclesiastical Law, and therefore the Law of the 
 American Church. That it is the Law of the Church, is 
 also clearly deducible from our Canons and Offices. — 
 (Hoffman's "Ecc. Law" pp. 88, 89; Humphrey 's "Law 
 of the Church" p. 35.) 
 
 It is also clear, that to the Rector belongs the right 
 
274 LAW OF THE CHURCH. 
 
 to determine as to the character of the Choir; whether 
 it shall be a quartette, or chorus, or vested Choir. 
 
 CONTROL OF THE ORGAN. 
 
 To the Rector belongs, exclusively, the right to 
 control the organ and to direct its use, at all times and 
 for all purposes. 
 
 This right follows, of necessity, from the right of the 
 Rector to the possession and control of the tempor- 
 alities of the Church. 
 
 The English Ecclesiastical Law on this point is ex- 
 plicit. The control of the organ rests with the Rec- 
 tor, and he may direct its use at such times as he sees 
 proper. 
 
 In Wyndham v. Cole (L. R., i P. D., 130), Sir Robert 
 Phillimore issued a monition against an Organist for in- 
 terfering with the Rector's right to control and direct 
 the use and management of the organ, and condemn- 
 ing him in costs. 
 
 In Eyre v. Jones (Ecc. Gaz., Jan., 1870), the Court 
 held, that if " the organ is locked up to hinder it from 
 being used in Divine service, the incumbent has 
 authority to break it open, having entire control over 
 it, whether for use or disuse in any service, at any time, 
 and by whomsoever the Organist may be paid." — 
 {Blunts "Book of Church Lazu," p. 331.) 
 
 The direct question of the Rector's right to the con- 
 trol of the organ came before Bishop Wilmer of Ala- 
 bama, in the case before cited. {Rector v. Vestry of St. 
 John's Church, Mobile, Ala.) It seems that a differ- 
 ence had arisen in the said Parish between the Rector 
 on the one hand, and the Wardens and Vestrymen of 
 the Parish on the other, as to their respective rights to 
 
THE RECTOR. 275 
 
 the control and use of the organ, on other and all oc- 
 casions, than for the " public services, burials and 
 weddings." 
 
 The question was submitted by the said parties to 
 the Bishop for his determination in the matter. Be- 
 fore rendering his decision thereon, the Bishop re- 
 ferred the question to the Standing Committee of the 
 Diocese for their advice and judgment. The question 
 received a most exhaustive consideration at the hands 
 of the said Standing Committee, but they were not able 
 to agree as to the respective rights of the parties. 
 
 Written arguments on both sides of the question 
 were submitted to the Bishop by several members of 
 the said Committee. 
 
 The Bishop, after a due consideration of the ques- 
 tion, and of the arguments thus submitted, rendered 
 his decision, which was, in part, as follows: "My de- 
 termination, therefore, in this contention is this — that 
 there is no reason to be found in Canon Law, or in 
 the alleged absence of Canon Law, in precedent, in 
 usage, or in the general propriety and fitness of things, 
 for limiting the control of the Rector over the Organ, 
 the Organist or the Choir and any of its accompani- 
 ments and accessories — all of which enter into the 
 worship of which he is virtually, constructively, and 
 for the most part actually, and by virtue of his office, 
 'The Celebrant /' According to the principle already 
 cited — 'Qui facit per alium facit per se.' " 
 
 CONTROL OVER THE ORNAMENTS OF THE CHURCH. 
 
 In the absence of any Canon of our own, we must 
 be guided by the Law of the English Church, the gen- 
 eral Ecclesiastical Law, in determining who may set up 
 
276 LA W OF THE CHURCH. 
 
 or place lawful ornaments and decorations in a church, 
 and who may remove any of the same. Dr. Blunt 
 says {"Book of Church Law? p. 281): " Equally strict 
 is the rule that the Church Wardens have no authority 
 to interfere with any of the ornaments of the church 
 or with any temporary decorations set up there with 
 the consent of the Minister. If they consider any of 
 these to be contrary to Ecclesiastical Law, they may 
 report them to the Bishop in the form of a present- 
 ment ; but can in no way interfere with them without 
 being liable to a suit in the Ecclesiastical courts, in 
 which proof of such interference (unless, perhaps, in 
 the case of glaringly indecent and irreverent ornaments 
 or decorations which must be removed at once to 
 avoid scandal) would bring condemnation with costs." 
 In Church Wardens of St. John's Church, etc., v. Par- 
 ishioners, etc. (1 Hagg. Con. Rep., 198), the Court held: 
 " The law respecting Church ornaments is now gener- 
 ally understood and settled. The consent of the 
 parishioners is not indispensably necessary unless to 
 charge the Parish with any expense for the support of 
 the ornament after it has been put up. But if there is 
 no such charge incurred, the approbation of the ma- 
 jority of the parishioners is not necessary, nor their 
 disapprobation binding on the Ordinary." 
 
 In Dewdneyv. Good (7 Jur. [N.S.],637), the statement 
 of the case shows that the Church Wardens of a Parish, 
 acting upon a resolution of the Vestry, but against the 
 prohibition of the Rector, broke open the door of the 
 church and proceeded to arrange certain of the seats, 
 and to alter portions of the pulpit. The Court held 
 that " all who had taken part in these proceedings 
 had been guilty of a grave offence. . . . The law 
 
THE RECTOR. 277 
 
 on this subject is beyond all doubt or dispute. No 
 man, whoever he may be, has any right to make any 
 changes in the church except the Ordinary and those 
 legally deputed by him.' 
 
 The case of Ritchings v. Cordingley {Law Rep., 3 
 Adm. and Ecc, 113) is a most important one. From 
 the statement of the case it appears that a ledge or 
 retable had been placed on the Altar of the Parish 
 Church by the order of the incumbent, without the 
 consent of the Ordinary. After the lapse of several 
 months a Vestry meeting was held and a resolution 
 then adopted that the Church Wardens should take 
 steps for removing the retable. On the day after 
 the Vestry meeting one of the Church Wardens for- 
 cibly entered the church, pulled down the retable 
 and removed the altar cloth from the Altar. The Court 
 held that the conduct of the Church Warden was 
 clearly illegal, and condemned him in certain costs. 
 
 To the same effect are Marshall v. Andrew, Ecc. 
 Gaz., 1 871; Blake v. The Church Wardens of Wetheral y 
 Ecc. Gaz., May, 1874; Evans v. Dodson, Ecc. Gaz., Dec. , 
 
 1874. 
 
 The law of the Church regarding the right to place 
 ornaments and temporary decorations in a church, and 
 to remove them therefrom, as deduced from the English 
 authorities and decisions on this subject, would seem 
 to be as follows: 
 
 First. That the Rector has the exclusive right and 
 control over the placing of temporary decorations in 
 the church or removing them therefrom. 
 
 Second. That the Rector, acting with the advice 
 and consent of the Bishop, may place such other law- 
 ful decorations and ornaments in the church as he 
 
278 LA W OF THE CHURCH. 
 
 may deem advisable, without the consent of the War- 
 dens and Vestrymen, or of the parishioners, provided 
 the Parish be not chargeable with the expense of 
 placing them in the church, or maintenance of the 
 same. 
 
 Third. That the Wardens and Vestrymen, or any of 
 the parishioners, have no right to place any decora- 
 tions or ornaments in the church without the consent 
 of the Rector. 
 
 Fourth. That decorations, other than temporary 
 decorations and ornaments, once placed or set up in a 
 church, may not be removed therefrom except with 
 the joint consent of the Rector, Wardens, and Vestry- 
 men, or by order of the Bishop of the Diocese. It 
 seems to be the better opinion that the Bishop's con- 
 sent is also necessary to the removal of any perma- 
 nent ornaments, or, at least, that they may not be law- 
 fully removed against his express objection.. 
 
 As the church edifice and all its appurtenances are de- 
 signed for promoting the spiritual welfare of the Parish, 
 that the Rector, subject to the Canons, rubrics and or- 
 dinances of the Church, and the godly admonitions 
 and judgments of his Bishop, should have complete 
 control over, and the right to direct the management 
 thereof, in such ways as may seem to him best suited 
 to subserve the spiritual welfare of those committed 
 to his care, is, in my judgment, clear and uncontro- 
 vertible. 
 
 It may also be stated, as a rule of law, that things 
 once given to a church, or placed therein for permanent 
 use or ornamentation, thereby become church goods, 
 and may not be removed by the donor. — (i Bum's "Ecc. 
 Law;' p. 376.) 
 
THE RECTOR. 279 
 
 RIGHT OF RECTOR TO REPEL FROM THE HOLY 
 COMMUNION. 
 
 Canon 40, Section ii., of the Digest, provides that when 
 a person who has been repelled from the Holy Com- 
 munion under the rubrics, shall appeal to the Bishop, 
 it shall be his duty to restore him, or cause an inquiry 
 to be made. 
 
 The Rubric herein referred to is prefixed to the 
 Order for the Holy Communion, and reads as follows: 
 "If among those who come to be partakers of the 
 Holy Communion, the Minister shall know any to be 
 an open and notorious evil liver, or to have done any 
 wrong to his neighbours by word or deed, so that the 
 Congregation be thereby offended; he shall advertise 
 him, that he presume not to come to the Lord's Table, 
 until he have openly declared himself to have truly 
 repented and amended his former evil life, that the 
 Congregation may thereby be satisfied; and that he 
 hath recompensed the parties to whom he hath done 
 wrong; or at least declare himself to be in full purpose 
 so to do, as soon as he conveniently may. 
 
 "The same order shall the Minister use with those 
 betwixt whom he perceiveth malice and hatred to 
 reign; not suffering them to be partakers of the Lord's 
 Table, until he know them to be reconciled. And if 
 one of the parties, so at variance, be content to forgive 
 from the bottom of his heart all that the other hath 
 trespassed against him, and to make amends for that 
 wherein he himself hath offended, and the other party 
 will not be persuaded to a godly unity, but remain 
 still in his frowardness and malice, the Minister in 
 that case ought to admit the penitent person to the 
 Holv Communion, and not him that is obstinate. 
 
280 LAW OF THE CHURCH. 
 
 "Provided, that every Minister so repelling any, as is 
 herein specified, shall be obliged to give an account of 
 the same to the Ordinary, within fourteen days after, 
 at the farthest." 
 
 The Canon above cited (Canon 40) also provides 
 that when the Minister shall have laid information 
 before the Bishop according to the provisions of the 
 Rubric (the Rubric above cited), the Bishop need not 
 necessarily institute an inquiry, unless the party re- 
 pelled lodge a complaint with him ; in which case, it is 
 made the duty of the Bishop either to restore him, if 
 he deem the cause assigned by the Minister for such 
 repulsion to be insufficient, or to institute an inquiry, 
 as may be directed by the Canons of the Diocese, or, in 
 the absence of any such Canons, to proceed according 
 to such principles of law and equity as will insure an 
 impartial decision. 
 
 The Canon also provides that no Minister shall be 
 required to admit to the Sacraments a person so 
 refused or repelled, without the written direction of 
 the Bishop. 
 
 It further provides that the Sacraments shall not be 
 refused in any case to a penitent person at the point 
 to die. 
 
 The Rubric of our Prayer Book regarding repulsion 
 from the Holy Communion is almost a literal repro- 
 duction of that in the English Office, which is a part 
 of the Statutes 2 and 5 Edward VI., and 13th, 14th, 
 Charles II. 
 
 The 26th, 27th, and 109th Canons of 1603 are obvi- 
 ously founded upon the rubric, and require the present- 
 ment of the offenders. In the 27th Canon it is pro- 
 vided " that every Minister so repelling any, as is sped- 
 
THE RECTOR. 281 
 
 fied either in this or in the next precedent Constitu- 
 tion, shall, upon complaint, or being required by the 
 Ordinary, signify the cause thereof unto him, and 
 therein obey his order and direction." 
 
 Statute 13, 14 Charles II., added a passage to the 
 rubric, making it mandatory upon the Minister within 
 fourteen days, to make the presentment required by 
 rubric to the Ordinary, who was required to proceed to 
 punish as directed by the Canon. The 109th Canon 
 provided that such offenders were to be presented to 
 the Ordinaries "to the intent that they, and every 
 of them, may be punished by the severity of the laws, 
 according to their deserts ; and such notorious offenders 
 shall not be admitted to the Holy Communion till they 
 be reformed." 
 
 Dr. Wheatly (" On the Common Prayer" pp. 269, 
 270) states the law in the English Church. After 
 showing that the law clearly distinguishes between 
 absolutely excluding a person from the Holy Com- 
 munion as a judicial act, and merely repelling or sus- 
 pending a person until the Minister can lay the case 
 before the Bishop for his decision, and that the rubric 
 cannot be understood as giving any power to the Min- 
 ister to act judicially in the matter, he quotes St. 
 Augustine as to the practice of the Church, which 
 quotation is, in part, as follows : 
 
 " We cannot repel any man from the Communion 
 unless he has freely confessed his offence, or hath been 
 accused and convicted in some Ecclesiastical consis- 
 tory or secular court." 
 
 " That all this plainly refers to the power of seclusion 
 from the Communion judicially, and with authority ; 
 whereas the design of this rubric is only to enable the 
 
282 LA W OF THE CHURCH. 
 
 Curate to refuse to administer to any of his congrega- 
 tion (of whose ill life and behaviour he has received 
 sudden notice) till he can have an opportunity of laying 
 his case before the Ordinary. 
 
 '■ Whom, in the meanwhile, the Curate is empowered 
 by this rubric (which is itself a law, being established 
 by the Act of Uniformity) to refuse the Communion 
 if, after due admonition to keep away, he obstinately 
 offers himself to receive. That this is no novel power 
 is plain from the practice of the ancient Church; in 
 which, though all open offenders as soon as known were 
 put under censure, yet if before censure they offered 
 themselves at the Communion, they were repelled." 
 
 The Law of the English Church relative to the 
 power of the Minister to repel persons from the Holy 
 Communion seems clear and beyond controversy. His 
 power is only suspensory, and in every case, when 
 he repels a person from the Holy Communion, he 
 must, within fourteen days, give notice to the Bishop, 
 who alone can act judicially and with authority in the 
 matter. 
 
 As Judge Hoffman says (" Law of the Church" p. 
 438), in commenting on the English rubric and Canons : 
 " This power is vested in the first instance in the 
 Minister, but only to be exercised in the cases speci- 
 fied, and subject to the Bishop's revision; and the 
 understood construction of the English rubric is, that 
 admonition must be first resorted to." 
 
 That this is also the Law of the American Church 
 cannot, I think, be questioned. 
 
 Under the Rubric prefixed to the Order for the Holy 
 Communion in the American Prayer Book, which, as 
 has before been shown, is substantially identical with 
 
THE RECTOR. 23 3 
 
 the English Rubric, u Minister repelling - a person, as 
 specified in the Rubric, ^ shall be obliged to give an ac- 
 count of the same to the Ordinary, within fourteen 
 days after, at the farthest." 
 
 It is difficult to understand how clearer and more 
 explicit language could possibly have been used. It 
 leaves no discretion whatever in the matter to the Min- 
 ister. If he repels any one from the Holy Communion, 
 he must, " within fourteen days after, at the farthest," 
 report such repulsion to the Bishop. His power, as 
 Judge Hoffman well says, is only suspensory, and his 
 rectorial jurisdiction limited. He cannot pass judgment 
 upon the offender ; he can only, like a committing 
 magistrate,make a presentment of him to a higher Court, 
 the Bishop of the Diocese, who, virtute officii, alone can 
 act judicially and with authority in the matter. 
 
 Nor can a Minister set up qualifications of his own 
 dictation, such as the refraining from certain amuse- 
 ments, or the neglect to do certain things enjoined by 
 the Minister, but not made compulsory by the Church. 
 The grounds of repulsion are set forth in the Rubric, 
 the first of which is, " to be an open and notorious evil 
 liver." 
 
 Wheatly, in the passage before referred to, defines 
 as notorious evil livers, "such as the sentence of the 
 law hath, either upon their own confession or full con- 
 viction, declared so to be." 
 
 The next ground of repulsion is, when any " have 
 done any wrong to his neighbours by word or deed, so 
 that the Congregation be thereby offended." The 
 Rubric also provides that the Minister shall use the 
 same order with those '" betwixt whom he perceiveth 
 malice and hatred to reign." 
 
284 LA W OF THE CHURCH. 
 
 The Rubric further provides that if one of the parties, 
 so at variance, is willing to forgive and make amends, 
 and the other is not, then the Minister ought to admit 
 the penitent person to the Holy Communion, and not 
 him that is obstinate. 
 
 Should a minister so far violate the law as to repel 
 any one from the Holy Communion for causes obviously 
 other than those that are determined by Rubric, it 
 would be the duty of the Bishop to restore the person 
 so repelled, either upon the presentment of the Minis- 
 ter, or upon the complaint of the party repelled, and 
 also to admonish the Minister so repelling. And should 
 a Minister repelling any from the Holy Communion, 
 neglect or refuse to give an account of the same to the 
 Bishop, as provided by the Rubric, it would undoubtedly 
 be such a violation of the Law of the Church as to 
 subject him to discipline. 
 
 The power of a Minister to repel a person from the 
 Holy Communion in a case where the " wrong done to 
 a neighbour by word or deed " was a personal wrong 
 to the Minister himself (assuming the congregation to 
 be offended), as, for instance, in the case of a slander 
 uttered against himself, has been questioned. In a 
 case occurring in the Diocese of New York in 1833, 
 cited by Dr. Hawks (" Con. and Can." p. 369), Bishop 
 Onderdonk decided that Ministers could not exercise 
 the power of repulsion " in cases of differences or dis- 
 putes in which themselves or families are parties," and 
 he restored the communicant who had been so repelled. 
 
 In commenting on this case, Judge Hoffman ("Law 
 of the Church" p. 454) doubts the correctness of the 
 Bishop's judgment, and says with great force: "The 
 rejection is warranted by the language of that clause 
 
THE RECTOR. 285 
 
 of the Rubric, 'doing wrong to a neighbour by word or 
 deed.' There is no other redress open to an assailed 
 and calumniated Minister within the discipline of the 
 Church; and if he may not repel, the shocking scene 
 may be exhibited of the reviler receiving the emblems 
 from one he has slandered, and the reviled administer- 
 ing them, while the feelings of resentment and dislike 
 are struggling for sway in his bosom." 
 
 I do not see how the conclusion of Judge Hoffman 
 can well be controverted. 
 
 While it seems clear that the Minister has the power 
 to repel in such a case, he should exercise it only in 
 extreme cases, and undoubtedly, as Judge Hoffman 
 says, there should be some restriction placed upon the 
 exercise of the right in such a case, and a canonical 
 regulation of the matter might be advisable. 
 
 RIGHT TO APPOINT ASSISTANT MINISTER. 
 
 To the Rector alone belongs the right of appointing 
 an Assistant Minister. 
 
 It is the right of the Vestry to determine the amount 
 of salary that shall be paid to the Assistant Minister 
 and for what term he shall be employed; it is the right 
 of the Rector to choose and appoint such Assistant. 
 
 An Assistant Minister in the American Church an- 
 swers, in general, to a Curate in the English Church, 
 who is appointed by the incumbent, and nominated to 
 the Bishop, who, if satisfied that he is properly quali- 
 fied, grants him a license and authority to perform the 
 office of Curate in the Parish to which he has been ap- 
 pointed. — {Blunts " Book of Church Laiv" pp. 217, 222.) 
 
 That the Vestry have no power to appoint as As- 
 sistant Minister any Minister whom they may choose, 
 
266 LA W OF THE CHURCH. 
 
 is very clearly shown by Section iv. of Canon 16 
 of the Digest, which forbids any Minister of the 
 Church to officiate in any manner within the paro- 
 chial cure of another Clergyman, unless he have 
 received express permission for that purpose from 
 the Minister of the Parish. The Church does not 
 permit the Wardens and Vestrymen to say a word 
 authoritatively on the matter, unless the Rector be 
 absent from the Parish. She recognizes as sacred 
 the principle that the Clergyman in charge of a cure is 
 responsible to God for the fidelity with which he in- 
 structs the people of his cure, and that as man cannot 
 release him from this responsibility, man should not 
 interfere to prevent him in acting up to his responsi- 
 bility. Therefore she declares that he " shall not be 
 interfered with in the discharge of his spiritual func- 
 tions among his people." She will not permit her 
 Clergy to interfere ; much more will she not permit her 
 laity to interfere. — {Hawks* " Con. and Can." p. 281.) 
 
 It has already been shown that the Rector has the 
 sole and exclusive right to appoint his lay assistants, 
 and the principles involved therein apply with equal 
 force to his right to appoint his clerical assistants. 
 
 An Assistant Minister has no right, virtute officii, to 
 be present at meetings of the Vestry, or to preside at 
 such meetings in the absence of the Rector, except 
 where special provision to the contrary is made in the 
 Church Charter. 
 
 THE RECTOR'S DUTIES. 
 
 The duties of a Rector are well expressed in the 
 Office of " Ordering of Priests," wherein he solemnly 
 promises that he will give " faithful diligence always so 
 
THE RECTOR. 287 
 
 to minister the Doctrine and Sacraments, and the Disci- 
 pline of Christ, as this Church hath received the same, 
 according to the Commandments of God." 
 
 As Judge Hoffman well says ( u £cc. Lazv," p. 87), 
 "The vow of the Rector becomes the right of the con- 
 gregation." They would never have called him to be 
 their Rector, save for the promises and vows he made 
 upon his ordination to the Priesthood. So far as he for- 
 gets, or proves recreant to those promises and vows, so 
 far does he violate the rights of his congregation. At 
 the time of his call, he was believed to be "a devout 
 man, called of God to his office, sufficiently learned for 
 his work, under willing obligations as to belief and 
 public ministrations, solemnly set apart to certain 
 duties, and clothed with certain spiritual powers and 
 rights, and with Divine authority." He ceases not 
 to be a Priest by becoming a Rector, nor can any 
 Parish, by calling him to be their Rector, exonerate 
 him from his covenant vows and obligations. To the 
 Church of Christ he is bounden " to make full proof of 
 his ministry, according to his covenant, and, to that 
 one Parish in particular, to make that proof just there." 
 
 Not only is he to give faithful diligence to the min- 
 istration of the Doctrine, Sacraments and Discipline 
 of the Church, according as she hath received the 
 same; not only to teach the people committed to his 
 care to keep and observe the same; not only to main- 
 tain and set forward, so far as he may be able, quiet- 
 ness, peace and love among his people; but also with 
 all faithful diligence to drive away from the Church all 
 erroneous and strange doctrines that are contrary to 
 God's Word, and to remember the duty of honorable 
 deference to the Bishop, submitting to his godly 
 
288 LA W OF THE CHURCH. 
 
 admonitions and judgments in all things where he may 
 lawfully counsel. 
 
 " And when, under changed convictions, he can no 
 longer live according to his covenant, a good con- 
 science and the law of honor will lead him to make 
 the sacrifice which every honest man has to make 
 towards societies, brotherhoods, guilds, and churches, 
 whose obedient officer or member he can no longer 
 remain, viz., to go out by the door ever open to honest 
 convictions and to courage sufficiently noble to act 
 up to them." 
 
CHAPTER VI. 
 
 OF WARDENS AND VESTRYMEN. 
 
 THE Canons of the General Convention repeat- 
 edly refer to Wardens, and in every Diocese 
 they are recognized as forming a necessary 
 constituent part of the Church organization; but we 
 must look to the English Ecclesiastical Law if we would 
 rightly understand the duties of Wardens, or Church 
 Wardens as they are called in the English Law, and also 
 in some Dioceses in this country. 
 
 By the 18th, 19th, 85th, 88th, 90th, 109th, noth, 
 1 nth and 112th of the Canons of 1603, the Church 
 Wardens or questmen are to enforce reverence and 
 attention during Divine Service, to prevent loiterers or 
 idle persons from frequenting the churchyard or porch 
 during such service, to keep peace during any meeting 
 of the congregation, to take care that excommunicated 
 persons be kept out of the church, to see that the 
 churches be kept from profanation, and, in the visita- 
 tions of Bishops and Archdeacons, to present the names 
 of persons so offending, as well as the names of all 
 schismatics, non-communicants at Easter, and all per- 
 sons guilty of notorious crimes and scandals. 
 
 Canons 80, 81, 82, 83, 84 (1603), make it the duty of 
 the ChurchWardens to provide "Things Appertaining 
 to Churches," such as the " Great Bible " and Book of 
 Common Prayer, a Font of stone for Baptism, a decent 
 Communion Table, a Pulpit and a Chest for Alms, in 
 every church. 
 
290 LA W OF THE CHURCH. 
 
 Canon 85 makes it the duty of the Church Wardens 
 to see that the churches are kept well and sufficiently 
 repaired. 
 
 Canon 20 makes it the duty of the Church Wardens 
 of every Parish, with the advice and direction of the 
 Minister, to provide the bread and wine for the cele- 
 bration of the Holy Communion. 
 
 Canon 28 makes it the duty of the Church Wardens, 
 a* well as of the Minister, to mark whether the Com- 
 municants of the Parish come to the Holy Communion 
 at least three times in each year, of which Easter shall 
 be one. 
 
 Canon 50 makes it the duty of the Church Wardens, 
 as well as the Ministers, to see that strangers are not 
 admitted to preach without showing their license. 
 
 Blunt, in speaking of the " Office of Church Warden," 
 says (" Book of Church Law," pp. 254, 255) : 
 
 " The name of these Parochial Officers is derived 
 from one of their duties, that which was originally the 
 only duty belonging to the office — i. e., the custody or 
 guardianship of the church property belonging to each 
 Parish. In later times, other duties accumulated upon 
 Church Wardens, so that they have become ex-officio 
 synodsmen or 'sidesmen' — the proper lay represen- 
 tatives of their parishes at Synods or visitations." 
 
 In a note he cites Ayliffe (Par ego n, p. 516) as au- 
 thority for the statement that " The office of Church 
 Warden, as guardian of the goods of the church, 
 dates from the later part of the middle ages, when 
 the duty of providing for the repairs of the nave and 
 of furnishing the utensils for Divine Service finally 
 settled on the parishioners. The synodsmen are of 
 much more ancient date, being derived from the custom 
 
WARDENS AND VESTRYMEN. 291 
 
 observed at Episcopal Synods of calling upon certain 
 grave laymen of the Diocese to report on oath to the 
 Bishop respecting its moral condition." 
 
 In speaking of the " Duties of Church Wardens," he 
 says {Idem, pp. 263, 264, 265): "It has already been 
 mentioned that the office of Church Warden compre- 
 hends two distinct classes of functions and responsi- 
 bilities. The first of these relates to the material 
 fabric and goods of the church, of which those appointed 
 to the office are guardians; the second relates to the 
 oversight of the clergy and laity of the Parish in respect 
 to their observance of, and obedience to, the Eccles- 
 iastical Laws. It should be remembered that only in 
 certain specified cases have they authority to act, and 
 that in all others they have only authority to present, 
 i e., make a formal report to the Ordinary, leaving to 
 him the responsibility of acting or not acting upon 
 their presentments. The distinction between these 
 two classes of functions requires to be carefully kept in 
 view, as the neglect of it has involved Church Wardens 
 in heavy pecuniary penalties in the shape of costs in- 
 flicted by the Ecclesiastical Courts. 
 
 " The active duties of the office are chiefly those of 
 providing necessaries for Divine Service, maintaining 
 order during its performance, keeping the church and 
 its accessories in proper condition, and taking charge 
 of the benefice during vacancies. This last duty is not, 
 however, thrown on them by the mere fact of their 
 appointment, but by the act of the Ordinary, who 
 usually chooses them for this office, and commits it to 
 them by a formal instrument of sequestration. 
 
 ** Whatever is needed for use in the services of the 
 Church was, by the old Ecclesiastical Law, to be pro- 
 
2 92 LA W OF THE CHURCH. 
 
 vided, at the cost of the parishioners, by the Church 
 Wardens. When a church is once erected and prop- 
 erly furnished, these current necessaries are, indeed, 
 very few. They may be stated as chiefly consisting 
 of the vestments of the officiating clergy, the bread 
 and wine required for use in the Holy Communion, the 
 lights necessary for Evening Service, together with 
 the salary of the parish clerk, the organist (when there 
 is one), and the attendant or attendants required for 
 the orderly use of the church by the Minister and the 
 congregation." 
 
 In speaking of the "Duties during Divine Service " of 
 Church Wardens, he says {Idem, pp. 2^5, 266) : "The 
 only act by which Church Wardens officially take part 
 in Divine Service is that of collecting the alms of the 
 congregation, and bringing them to the Priest for 
 presentation upon the Altar. Even this is not essen- 
 tially their duty, as the rubric names ' the Deacons, 
 Church Wardens, or other fit persons appointed for 
 that purpose'; but where the Deacons do not collect 
 them, no fitter persons can be found than the repre- 
 sentative men of the lay parishioners, especially as 
 they have authority in their distribution; for by the 
 rubric at the end of the Communion Service, 'After the 
 Divine Service is ended, the money given at the Offer- 
 tory shall be disposed of to such pious and charitable 
 uses as the Minister and Church Wardens shall think fit. 
 Wherein if they disagree, it shall be disposed of as the 
 Ordinary shall appoint.' " 
 
 He also refers to the Canons making it the duty of 
 the Church Wardens, personally, or by their deputies, 
 to maintain order during Divine service, and says 
 {Idem, p. 266): "It has been repeatedly ruled that 
 
WARDENS AND VESTRYMEN. 293 
 
 Church Wardens are authorized, ex-officio, to carry out 
 the principles set forth in these Canons, by doing what 
 they can to prevent disorder or interruption of Divine 
 Service; and that if no other means avail, they are 
 empowered to turn the offender out of the church, 
 provided they use no unnecessary violence in doing 
 so." — {Reynolds v. Monkton, 2 M. & R , 384; Williams 
 v. Glenister, 2 Barn. & Cress., 699; Burton v. Henson 
 et a I., 10 Meison & Welsby, 104.) 
 
 In regard to the assignment of seats to parishioners, 
 he says (Idem, pp. 268, 269): "Associated with the 
 duty of keeping order in church is that of seeing that 
 the parishioners are provided with seats in an orderly 
 manner. This duty devolves upon the Church War- 
 dens as officers of the Ordinary, whose authority in the 
 matter is final. By the Common Law every parish- 
 ioner is entitled to a seat in his Parish Church, and in 
 1841 Baron Rolfe expressed his opinion 'that the 
 Church Wardens have a right to exercise a reasonable 
 discretion in directing where the congregation shall 
 sit,' — even to the extent of removing a person from one 
 seat to another if thought more convenient, and done 
 without unnecessary force." — {Reynolds v. Monkton, 2 
 M.&R., 384.) 
 
 "In 1887, Mr. Justice A. L.Smith held that in a 
 Church where all the seats were free, it was ' well 
 within the scope, power, and authority of Church War- 
 dens to direct where a certain class shall go, and a 
 certain class shall not go.' In that case the Church 
 Wardens were seeking to prevent all the young men 
 from sitting together. {As her v. Caleraft, L. R. 18 Q. 
 B. D., 607.) In Taylor v. Timson (Z. R. 20 Q. B. D., 
 671), Mr. Justice Stephen held that a Church Warden 
 
294 LA W OF THE CHURCH. 
 
 had no right to exclude any parishioner from church 
 on the ground that there was not sitting room for him. 
 Whether the assignment of seats is made as a yearly 
 arrangement, whether it is made at the time when 
 Divine Service is about to be or is being celebrated, 
 or whether the power to make it is only used in dis- 
 puted cases — the seats being ordinarily considered free, 
 and open to the first comer — are matters entirely 
 within the discretion of the Church Wardens, subject 
 to the control of the Ordinary." 
 
 In regard to " The Care and Repair of the Church and 
 its Accessories " he says {Idem, pp. 270-72) : " The mov- 
 able goods of the Church are, by the Common Law, 
 vested in the Church Wardens, as a quasi corporation 
 (for the benefit of the parishioners at large), whose con- 
 tinuity is preserved notwithstanding the annual change 
 in the persons constituting it. (Rex v. Martin Rice, 
 1 Lord Raym., 138 ; Jackson v. Adams, 2 Bingh. N. C, 
 402.) ... In the same capacity, they are respons- 
 ible for the good preservation of the church fabric, the 
 churchyard, and the church goods ; the chancel being 
 mostly excepted, as the responsibility for its preserva- 
 tion and repair rests upon the Rector. As regards the 
 church and churchyard, these duties are laid down in 
 the 85th Canon of 1603, which enacts that ' The Church 
 Wardens or questmen shall take care and provide that 
 the churches be well and sufficiently repaired, and so 
 from time to time kept and maintained, that the win- 
 dows be well glazed, and that the floors be kept paved, 
 plain, and even, and all things there in such an orderly 
 and decent sort, without dust, or anythingthat may be 
 either noisome or unseemly, as best becometh the house 
 of God, and is prescribed in an homily to that effect. 
 
WARDENS AND VESTRYMEN. 295 
 
 The like care they shall take that the churchyards be 
 well and sufficiently repaired, fenced, and maintained 
 with walls, rails, or pales, as have been in each place 
 accustomed, at their charges unto whom by law the 
 same appertaineth ; but especially they shall see that 
 in every meeting of the congregation peace be well 
 kept, and that all persons excommunicated, and so de- 
 nounced, be kept out of the church.' 
 
 " This will include whatever is permanently affixed 
 to the freehold — such as walls, fences, windows, gates 
 and doors, roof, floor, drains, stoves and flues, etc.; 
 and also the font, pulpit, and seats, together with every- 
 thing that can be reasonably considered as substan- 
 tially part of the building and its appurtenances. . . . 
 The movable goods of the church, which the Church 
 Wardens are bound, on behalf of the parishioners, to 
 preserve and repair, consist of such things as are abso- 
 lutely enjoined for use in Divine Service, and of other 
 things which have been in use from time immemorial, 
 or have been accepted by them for the use of the 
 church. Of the first class are the vestments of the 
 Ministers, the sacred vessels and other furniture of the 
 altar, with the books used in Divine Service. Of the 
 second class are the organ, the bells, the bier, the 
 clock, the vestry furniture, and such like — all of which 
 are used for the advantage of the parishioners, and 
 ought therefore to be kept in order by them." 
 
 Such in brief is the law regulating the rights and du- 
 ties of Church Wardens in the English Church, and 
 such, I apprehend, with the exception of property 
 rights, which here belong to the Vestry in their cor- 
 porate capacity, constitutes the basis of the law regu- 
 lating the rights and duties of Church Wardens and 
 
296 LAW OF THE CHURCH. 
 
 Wardens in the American Church, on the principle 
 that the law of the English Church continues to be the 
 law of the American Church, so far as it is applicable 
 to our circumstances, and not superseded by enact- 
 ments of our own. 
 
 The Church has never yet legislated upon this sub- 
 ject (with the exception of a few Dioceses, which have 
 simply recognized by canonical enactment some of 
 the principles of the Canons of 1603), and her neglect 
 or refusal to so legislate evidences the mind of the 
 Church that the rights and duties of Church Wardens 
 and Wardens should remain the same as in the English 
 Church, so far, of course, as they are applicable to 
 our condition and not in conflict with the Statute Law 
 of the land. 
 
 A further evidence that such was the mind of the 
 Church is the report made by the Rev. Dr. Croes — 
 afterwards Bishop of New Jersey — in conjunction with 
 the Rev. Andrew Fowler, to the Convention of that 
 Diocese in 1804, which went very thoroughly into the 
 subject; so much so that Bishop Doane, his successor 
 in the Bishopric of New Jersey, spoke of it " as 
 embodying the whole practical wisdom on the sub- 
 ject." 
 
 This report received the endorsement of Judge Hoff- 
 man in his "Law of the Church" {pp. 267, 270), and was 
 cited by The Joint Committee on tlie Function of Rector, 
 Wardens, arid Vestrymen, etc., in their report to the 
 General Convention of 1880, as presenting "the duties 
 of Church Wardens in a clear manner." They also 
 remark that while some of the requirements have be- 
 come inoperative and useless, yet " the general drift 
 of them still remains in force." 
 
WARDENS AND VESTRYMEN. 297 
 
 The report to the New Jersey Convention of 1804 is 
 as follows : 
 
 " The duties of Church Wardens are : 
 
 1. To provide for the churches of which they have the 
 
 care a Prayer Book and Bible of suitable size, at 
 the expense of the Parish. 
 
 2. To make the collections which are usual in the 
 
 Parishes. 
 
 3. To provide, at the expense of the congregation, a 
 
 sufficient quantity of fine white bread, and good, 
 wholesome wine, for the celebration of the Lord's 
 Supper. 
 
 4. To provide a proper book, at the charge of the Par- 
 
 ish, in which shall be written by the Rector, or in 
 case of vacancy, by one of the Wardens, the name 
 of every person baptized, married and buried in 
 the church, and the time when such baptism, 
 marriage and burial took place. 
 
 5. To present to the Bishop of the Diocese, or, if there 
 
 is no Bishop, to the Chairman of the Standing 
 Committee of the Church in the State, every Priest 
 and Deacon residing in the Parish to which they 
 belong, who has voluntarily relinquished his sa- 
 cerdotal office, and uses such employments as be- 
 long to laymen. 
 
 6. To take care that the church of which they have 
 
 the charge be kept in good repair, well glazed and 
 free from dirt and dust, as becomes the House of 
 God; that the churchyard be decently fenced, and 
 to cause that order be preserved during Divine 
 Service. 
 
 7. To diligently see that the parishioners resort to 
 
 church on Sundays, and there continue the whole 
 
298 LA W OF THE CHURCH. 
 
 time of Divine Service; and to gently admonish 
 them when they are negligent. 
 
 8. To prevent any idle persons continuing in the 
 
 churchyard or porch during Divine Service, by 
 causing them either to enter the church or depart 
 — and to prohibit the sale of anything in the yard. 
 
 9. To give an account to the Corporation of the Church, 
 
 if it has no Treasurer, at the expiration of each 
 year, of the money they have received, and what 
 they have expended in repairs, etc.; and when 
 they go out of office, to give a fair account of all 
 their money transactions relative to the Church, 
 and deliver up to their successors the church 
 property in their possession." 
 This report most obviously embodies the main pro- 
 visions, either in whole or in part, of the 18th, 19th, 
 20th, 76th, 80th, 85th, 88th, and 90th, of the Canons 
 of 1603. 
 
 Dr. Richey, in " The CJiurcJimans Handbook" {pp. 
 28, 29), says: 
 
 " The 'Church Wardens,' as their name indicates, are 
 the guardians and keepers of the church, under the 
 Rector, and representatives of the body of the Parish. 
 They are to see to the church being kept in good re- 
 pair, and are to preserve order and decorum in and 
 around the church building during the time of Divine 
 Service. It is made their duty to provide a proper 
 Record Book for the Parish, and to cause to be copied 
 therein all documents bearing on the organization and 
 history of the Parish ; they are to collect and present 
 the alms and contributions made in the church. In 
 the event of a vacancy in the Rectorship, the Wardens 
 are the keepers of the Record Book, and they are to 
 
WARDENS AND VESTRYMEN. 399 
 
 present to the Bishop the report called for by Canon 
 at the time of the Annual Convention." — (See also 
 Hoffmarfs "Ecc. Law" pp. 90-92.) 
 
 In the absence of any law, statutory or canonical, 
 regulating the duties of Wardens, it seems clear that 
 the provisions of the Canons of 1603, except where they 
 are obviously inoperative or useless, are still of force 
 in the American Church. 
 
 The General Convention has also made it the duty 
 of the Wardens to give notice to the Bishop of the 
 election of a Minister to the Rectorship of a Parish; to 
 give a certificate of transfer to a communicant of the 
 Church removing from the Parish, in case there be no 
 Rector thereof; and to collect, or cause to be collected, 
 the alms of the congregation in time of Divine service; 
 it is also made the duty of the Senior Warden, at the 
 time of the institution of a Rector of the Parish, to 
 present the keys of the church to the new incumbent, 
 and to receive and acknowledge him in the name and 
 behalf of the Parish, as its Rector. 
 
 QUALIFICATIONS OF WARDENS. 
 The qualifications required for the office of Warden 
 have already been sufficiently commented upon in a 
 previous chapter. With very few exceptions the vari- 
 ous Dioceses require that a person must be a commun- 
 icant to be eligible for the office of Warden. The 
 grave and responsible duties devolving upon a Warden 
 should certainly never be committed to one who is not 
 a communicant of the Church. 
 
 HOW APPOINTED. 
 The mode of election or appointment of Wardens 
 varies in the different Dioceses, and is governed by 
 
3 oo LA IV OF THE CHURCH. 
 
 the Statute Law of the State, or the Canon Law of the 
 Diocese. 
 
 In some Dioceses both Wardens are elected by the 
 qualified voters of the Parish ; in others by the Vestry, 
 from among their own number ; in others, the Rector 
 has the right to appoint one Warden, and the Parish 
 or Vestry, as the law may provide, elects the other; in 
 still others, the Rector nominates one Warden, and 
 the Vestry elect both Wardens. 
 
 In the English Church, the ordinary law by which 
 the appointment of Church Wardens is regulated is 
 that of the 89th Canon (1603): "All Church Wardens or 
 questmen in every Parish shall be chosen by the joint 
 consent of the Minister and the parishioners, if it may 
 be; but if they cannot agree upon such a choice, then 
 the Minister shall choose one, and the parishioners 
 another, and without such a joint or several choice, 
 none shall take upon them to be Church Wardens ; 
 neither shall they continue any longer than one year 
 in that office, except perhaps they be chosen again in 
 like manner." 
 
 The common custom is for the incumbent to choose 
 one Warden, and the parishioners the other. — (Blunfs 
 " Book of Church Law" p. 258.) 
 
 The joint Committee on the Functions of Rector, 
 Wardens, and Vestrymen, etc., in their report to the Gen- 
 eral Convention of 18 So, recommended the enactment 
 of the following amendment to the Canon "Of Con- 
 gregations and Parishes." 
 
 " (2) In every Parish, at the Annual Election, War- 
 dens and Vestrymen shall be chosen as follows : — 
 
 The Rector, or Minister in charge, shall choose one 
 Warden, and the Congregation the other. 
 
WARDENS AND VESTRYMEN. 301 
 
 Vestrymen shall be chosen by the Congregation. 
 
 Both Wardens, and a majority of the Vestrymen, 
 shall be recognized Communicants of the Parish. 
 
 The qualifications of voters shall be as prescribed by 
 the Conventions of the several Dioceses." 
 
 It is certainly more consonant with the long estab- 
 lished usages of the Church, and with the general prin- 
 ciples of Ecclesiastical Law, for the Rector to appoint 
 one Warden, and the Parish to elect the other. War- 
 dens are usually denominated in the different Dioceses 
 as Senior and Junior Wardens, when both Wardens 
 are chosen by the Parish or Vestry; or Rector's War- 
 den and Parish or Accounting Warden, when one 
 Warden is appointed by the Rector, and the other by 
 the Parish or Vestry. 
 
 While the Church has recognized the title of Senior 
 Warden in the " Institution Office," and in the Canons 
 of most of the Dioceses, the name has in it, usually, 
 more of honor than of practical import. 
 
 Unless the Statute or Canon Law of a Diocese gives 
 him such right, the Senior Warden has no legal pri- 
 ority of right to preside at a Vestry meeting in the 
 absence of the Rector, although that courtesy is 
 usually extended toliim. Under the English Eccles- 
 iastical Law there is no one who is ex-officio entitled 
 to preside at a Vestry meeting, in the absence of the 
 Rector, but a Chairman must be elected by those 
 present. — (Blunt* s " Book of Church Law,"' p. 300.) 
 
 While many of the Dioceses provide by Canon for 
 the appointment or election of a Senior Warden, others, 
 though recognizing in their Canons the title of Senior 
 Warden, simply provide for the election of two War- 
 dens, without designating which of such Wardens shall 
 
3 o2 LA IV OF THE CHURCH. 
 
 be called the Senior Warden. In such cases it is the 
 general custom to denominate the Warden first chosen, 
 or whose name stands first on the ticket or ballot, as 
 the Senior Warden, but there is no other authority, 
 save custom, for such designation in those Dioceses 
 where no provision is made for the appointment or 
 election of a Senior Warden. 
 
 BOTH WARDENS MUST ACT. 
 
 Unless the Wardens are expressly authorized to act 
 separately, they must act together, in order to perform 
 a valid act. This is also the English rule. {Blunfs 
 "Book of Church Law" p. 270, note, citing 1 Rol. Abr. 
 Chev., 393; Star key v. Barton, Cro.Jac., 24. See also 
 Prideauxs "Church Wardens Guide," p. 335.) This, of 
 course, does not prevent a Warden from exercising 
 such powers as may be specially delegated to him by 
 the Rector, or by the Vestry, or as may be consented 
 to by the other Warden. In many of the Dioceses the 
 Canons provide that the Senior Warden shall pre- 
 side at meetings of the Vestry in the absence of the 
 Rector. 
 
 In the Dioceses of Delaware, Ohio, and Southern 
 Ohio, the Canons provide that in the absence of the 
 Rector, the Senior Warden may call meetings of the 
 Vestry. 
 
 In the Diocese of Alabama, the Canons, after speci- 
 fying that there shall be two Wardens in each organized 
 Parish, who shall always be communicants, not under 
 repulsion, provide that " they shall be distinguished as 
 Senior and Junior, although all duties belong equally 
 to both ; for every duty which may be assigned to the 
 Senior Warden, devolves, in his absence or disability, 
 
WARDENS AND VESTRYMEN. 303 
 
 on the Junior, and both shall be held responsible for 
 the performance of the duty." 
 
 In the Diocese of Springfield it is made the duty, by 
 Canon, of the Rector's Warden <: to look after the per- 
 sonal interests of the Rector, to see that his salary is 
 promptly and fully paid, that provision is made for 
 supplying his place in case of his necessary absence, 
 and generally to do all things that may be necessary to 
 promote his efficiency in the discharge of his duties." 
 
 It has already been shown that, in the absence of 
 any express provision in the Statute or Canon Law to 
 the contrary, the presence of one Warden is necessary 
 to constitute a legal meeting of the Vestry. 
 
 In the State of New York, the Statute Law {Chap. 
 723 of the Laws of 1895) provides that, in order to con- 
 stitute a quorum of the Vestry, there must be present 
 the Rector, at least one of the Church Wardens, and 
 a majority of the Vestrymen, or the Rector, both 
 Church Wardens and one less than a majority of the 
 Vestrymen. Before the enactment of the Act of 1895, 
 making the above provision for a quorum in case of 
 the presence of both Wardens at a Vestry meeting, 
 the Chancellor of the Diocese of Western New York 
 gave as his opinion in a case submitted to him, that 
 when both Wardens were present at a Vestry meeting, 
 one of the Wardens could be counted as a Vestryman 
 for the purpose of making a quorum. 
 
 This rule would doubtless be held to be valid in 
 those Dioceses where the Statute or Canon Law sim- 
 ply provides that the majority, or the " major part" of 
 the whole number composing the Vestry shall consti- 
 tute a quorum; as, for instance, if a Vestry consisted 
 of a Rector, two Wardens and seven Vestrymen, the 
 
3 04 LA W OF THE CHURCH. 
 
 presence of six of such members would be necessary 
 to constitute a quorum of such Vestry. This require- 
 ment would be fulfilled by the presence of the Rector, 
 one Warden and four Vestrymen, or the Rector, both 
 Wardens and three Vestrymen. 
 
 WARDENS HAVE THE CUSTODY OF THE CHURCH 
 UNDER THE RECTOR. 
 
 In order to fulfil their duties relating to the preserva- 
 tion and repair of the church, and in providing the 
 necessaries of Divine Service, it is obvious that the 
 Wardens must have access to the church, but the 
 possession and control of the church being in the 
 Rector, they can have access thereto only with the con- 
 sent of the Rector. While they have the custody of 
 the church and of its goods, they have such custody 
 only under the Rector. 
 
 This is a well settled principle of the English Eccles- 
 iastical Law, and is also the law of the American 
 Church. Blunt {"Book of Church Lazu," pp. 273, 274) 
 lays down the rule as follows : " The whole church 
 and churchyard being vested in the Rector or Vicar, 
 as his freehold, access to either is entirely under his 
 control. ... In cases where Church Wardens 
 have possessed themselves of duplicate keys, or in any 
 way obtained access to the church, chancel, or belfry, 
 without the permission of the incumbent, they have 
 been severely censured by the judges, ordered to de- 
 liver up the keys, and condemned in costs. — (Citing 
 Redhead v. Wait and others, 6 Law Times \N. 5.], 580; 
 Dewdny v. Good&r Ford, 7 Jur. \N. 5.], 637; Harwardv. 
 Arden,Ecc. Gaz., May and Sept., 1867; Ritchingsv. Cor- 
 
WARDENS AND VESTR YMEN. 
 
 305 
 
 dingley, Law Rep. 3 A dm. and Ecc. p.ny, Sir R. Philli- 
 more's "Ecc/. Judgments" p. 133; Marshall v. Andrew, 
 Ecc. Gas., Aug., 1871.) 
 
 " In all that is done by Church Wardens this plain 
 principle of law should therefore be strictly recog- 
 nized, and access to the church obtained, by them- 
 selves or their deputies, only by the expressed or im- 
 plied permission of the incumbent. If he refuses it, so 
 as to prevent them from doing their duty, they must 
 complain to the Ordinary." 
 
 In the case of Lee v. Mathews (3 Hagg. Ecc. Rep., 169), 
 Sir John Nicoll says : " The Minister has, in the first 
 instance, the right to the possession of the key, and 
 the Church Wardens have only the custody of the 
 church under him. If the Minister refuses access to 
 the church on fitting occasions, he will be set right on 
 application and complaint to higher authorities." 
 
 "A spiritual Rector has, when inducted, the cor- 
 poral possession of the church for the use of the 
 parishioners, subject to the control of the Ordi- 
 nary." — {Griffith v. Dighton & Davis, 33 L. J., C. L. 
 \N. S.], 29.) 
 
 While the possession and control of the church 
 buildings belong to the Rector, yet are they confided 
 to him for certain well defined purposes ; and for these 
 purposes he is bound to give access. 
 
 He must give access to the church for such duties 
 as devolve upon the Wardens, with respect to the 
 care thereof, and the providing of the necessaries for 
 Divine service. — (Blunt's " Book of Church Law," pp. 
 327, 328.) 
 
 The relative rights of Rector and Wardens to the 
 custody and control of Church buildings are more 
 
3 o6 LA W OF THE CHURCH. 
 
 fully considered in the preceding chapter, under the 
 Rector's " Right to the Keys and Control of the Church 
 and other Parish Buildings," to which reference may be 
 had for the decisions of the American Courts on this 
 subject. 
 
 VESTRYMEN. 
 
 In England, except in cases of special customs, 
 there was formerly no separate body of the parish- 
 ioners known as a Vestry. All the parishioners when 
 duly convened for Parish purposes were described as 
 assembled in Vestry. In a few Parishes, especially in 
 the city of London, there existed, by custom, a repre- 
 sentative body called a " Select Vestry." " These Se- 
 lect Vestries, as a general rule, entirely supersede the 
 ordinary Vestry. In large towns select Vestries may 
 be appointed under the Act I and 2, Will. IV., ch. 60." 
 — (B/unt's "Book of Church Law" p. 303.) 
 
 The name Vestry is derived from the former cus- 
 tom of the parishioners to meet for the transaction of 
 parochial business in the room where the Clergyman 
 put on his vestments, called the Vestry. In the Col- 
 onies the method of the parishioners acting through a 
 select delegated body was used from a very early date. 
 In New York, for example, by the Duke of York's 
 laws of 1664, it was provided that eight of the most able 
 men of each Parish should be chosen by the major part 
 of the householders as overseers for the orderly man- 
 agement of the parochial affairs of the Parish, out of 
 which numbers should yearly be chosen the two Church 
 Wardens. So in Virginia, Vestries were part of the 
 Church organization at a very early date. — {Hoffman's 
 "Law of the Church? pp. 271, 272.) 
 
WARDENS AND VESTRYMEN. 307 
 
 In Maryland, by an Act of 1692, the freeholders of 
 each Parish were to meet and appoint six Vestrymen. 
 The Vestrymen were also made bodies corporate to 
 receive and hold property, with power to fill all va- 
 cancies. {Hawks' "Eccl. Cont." Vol. II., pp. 71, 72.) 
 In nearly all of the Charters granted to Colonial 
 Churches provision is made for the election of a certain 
 number of Vestrymen. 
 
 It is obvious that the Vestry system of the Colonial 
 Church, and hence of the American Church, was 
 modelled after the Select Vestries of the English 
 Church. 
 
 QUALIFICATIONS OF VESTRYMEN. 
 
 The qualifications of Vestrymen have already been 
 commented upon in a previous chapter, and, as was 
 then stated, they differ very materially in the different 
 Dioceses. In some States the qualifications for the 
 office of Vestryman are prescribed by Statute, in 
 others, the Statute is silent in the matter, or else 
 provides that they shall be conformable to the re- 
 quirements of the Church or of the Convention of 
 the Diocese to which the Parish choosing them be- 
 longs. 
 
 Vestrymen have no separate or individual power, and 
 can only act in Vestry assembled. {Appeal of Ritten- 
 house, etc., 21 At. Rep., 254; Peoples Bank v. St. Anthonys 
 Church, logN. Y., 512; United Brethren, etc.,v Vandu- 
 sen,n Wis., 5451 Morawitz on Corp., Sec. 531; 1 Water- 
 man on Corp., Sec. 70.) One exception to the above 
 rule should, however, be noted. It has been decided 
 {Beckett v. Lawrence, 7 Abb. Pr. Rep. [N. S.], 403) that 
 
3 o8 LA W OF THE CHURCH. 
 
 Vestrymen have power to preserve order, and to re- 
 move disturbers during times of Divine Service in the 
 church. 
 
 THEIR DUTIES. 
 
 The duties of Vestrymen have been well set forth in 
 the report of the Rev. Dr. Croes to the Convention of 
 New Jersey before referred to. 
 
 The report in so far as it relates to the duties of 
 Vestrymen is as follows : 
 
 " The duties of Vestrymen, or Trustees, are : 
 
 " To transact all the temporal business of their re- 
 spective churches — to collect the moneys stipulated to 
 be paid to the Minister; and, at the expiration of any 
 year, if there be a deficiency of the sum requisite, to 
 give information thereof to the congregation, convened * 
 for that purpose, and, if necessary, to enforce the pay- 
 ment of the sum deficient ; also, in the absence of the 
 Wardens, to do the several duties which are more par- 
 ticularly assigned to them." It may also be stated, 
 that it is the duty of a Vestryman to attend all meet- 
 ings of the Vestry duly called; should he intentionally 
 absent himself from such meetings, a writ of manda- 
 mus will lie to compel him to attend. — {People ex re/. 
 Kenney v. Winans et al. t 29 State Rep. \_N. K], 651.) 
 
 Wardens and Vestrymen should ever bear in mind 
 that to the Rector alone, under the Bishop, belongs 
 the administration of the Sacraments, Ordinances, 
 Worship, and all other matters of a purely spiritual 
 character, and that for these duties he was ordained, 
 and by them chosen. They are his lay assistants, and 
 can aid him most effectually in the performance of those 
 duties. As the late Bishop De Lancey, of Western 
 
WARDENS AND VESTRYMEN. 309 
 
 New York, in a Pastoral Letter well said: "The 
 whole body — Wardens, Vestrymen, and people — may 
 strengthen the hands of the Rector by punctuality in 
 attendance at the sanctuary, by full responses in the 
 services, by devout attention to the instructions of the 
 pulpit, by regularly communicating, by observance of 
 festivals and fasts, by interest in the ordinances admin- 
 istered, and by presenting the uniform example of 
 earnest, devout, holy, and consistent members of the 
 Parish." 
 
SUPPLEMENT. 
 •Rules of ©rfcer. 
 
RULES OF ORDER. 
 
 IT is not the author's purpose to set forth herein a complete 
 manual of parliamentary law, only to give such " Rules of 
 Order " as may be necessary for the proper conduct of Parish 
 and Vestry meetings, with a concise statement of their object, 
 effect, and order of precedence. 
 
 If no regular order of business has been adopted for the conduct 
 of Vestry meetings, the following would be a proper order therefor : 
 
 i. Reading of the Minutes of the previous meeting, and ap- 
 proval of the same. 
 
 2. Report of the Treasurer. 
 
 3. Reports of Standing Committees. 
 
 4. Reports of Special Committees. 
 
 5 . Unfinished Business . 
 
 6. New Business. 
 
 If, for any reason, it should be desired to transact business out of 
 the regular order, a motion should first be made to suspend the 
 rules or order of business, which can only be done by a two-thirds 
 vote. 
 
 While all business should be brought before the meeting on the 
 motion of a member thereof, no motion is necessary to receive the 
 report of a committee, unless objection is made to its reception. 
 
 Before a subject is properly open to debate, a motion should be 
 made and seconded, and then stated by the Chairman. 
 
 The member who offers the motion may modify or withdraw his 
 motion before it has been stated by the Chair, but after it has been 
 so stated he cannot withdraw it, except by unanimous consent, or 
 on a motion for that purpose ; nor can he then modify it except by 
 moving an amendment. 
 
 After a motion has been stated by the Chairman it is in the pos- 
 session of the meeting, and may be disposed of, besides being 
 directly adopted or rejected, as follows, and in this order of pre- 
 cedence : 
 
3 I4 LA W OF THE CHURCH. 
 
 i. By Objection made to its Consideration. 
 
 2. By Leave granted to Withdraw the Motion. 
 
 3. By Being Laid on the Table. 
 
 4. By Postponement to a Certain Hour or Day. 
 
 5. By being Committed or Referred. 
 
 6. By Amendment. 
 
 7. By being Postponed Indefinitely. 
 
 (1) Objection to the consideration of a motion must be made 
 immediately after the motion has been stated by the Chairman, 
 and before any debate thereon has been had. 
 
 It does not require to be seconded and cannot be debated or 
 amended. If sustained by a two-thirds vote, the original motion is 
 disposed of and can receive no further consideration by the meet- 
 ing. The object of such objection is to prevent any consideration 
 of a question, when such consideration is deemed inadvisable. 
 
 (2) Should the mover of a motion desire to Withdraw or Amend 
 his motion, or offer a substitute therefor, he may do so by unani- 
 mous consent, or, if that be not granted, by a motion made for 
 that purpose, which must also be put without debate or amend- 
 ment. 
 
 If the motion to Withdraw receive a majority vote, it effects a 
 complete withdrawal of the original motion from the consideration 
 of the meeting. 
 
 (3) A motion to Lay on the Table is not debatable, nor subject 
 to amendment in any way, but when made and seconded must be 
 immediately put by the Chairman, unless a motion of a higher 
 order be made, while this motion is pending. 
 
 If this motion be carried, the question must lie on the table 
 until a motion be made and adopted by a majority vote to take 
 it from the table. 
 
 A motion to Lay on the Table is always in order, so long as the 
 question is before the meeting. The object of this motion is usu- 
 ally for the purpose of defeating the question under consideration, 
 although it may also be made for the purpose of postponing the 
 consideration of the question to some more opportune time, and is 
 so far preferable to a motion to postpone for a definite or indefinite 
 time, in that it allows the question to be considered at any time 
 during either that meeting or a subsequent meeting, whenever a 
 
RULES OF ORDER. 315 
 
 majority may vote to take it from the table. The effect of the 
 motion is to prevent any further consideration of the whole question 
 until duly taken from the table. 
 
 (4) A motion to Postpone to a Certain Time may be made at 
 any time while the question is under consideration, except that it 
 cannot be made while any motion or question of a higher order is 
 being considered ; but any one of these motions may be made 
 during the consideration of a motion to Postpone. 
 
 The motion to Postpone to a Certain Time may be amended by 
 altering the time to which it is proposed to postpone the question, 
 which time must not be beyond the next regular or adjourned 
 meeting of the Vestry. Only a limited debate is allowed on this 
 motion, and must be confined to the motion itself. The merits of 
 the main question cannot be debated under this motion. The ob- 
 ject and effect of this motion is to defer action on the question 
 until the time specified therein, and the question cannot be con- 
 sidered before the time so specified except by a two-thirds vote. 
 
 (5) The next motion, in order of precedence, that may be made is 
 a motion to Refer or to Commit, or, if the question has before 
 been committed, to Recommit. This motion is subject to amend- 
 ment, and the whole question which it is proposed to refer, com- 
 mit, or recommit to a committee may be debated. The object of 
 this motion is to secure at the hands of a select committee a more 
 careful consideration of the question than is possible to be given to 
 it by the meeting. Its effect is to remove the consideration of the 
 question from the meeting until such time as the committee to 
 whom it was committed or referred report back to the meeting. 
 
 (6) The Main Question before the meeting, as well as motions 
 to Postpone to a Certain Time, to Commit or Refer, and to Fix 
 the Time to which to Adjourn, may be amended, and a motion 
 to Amend is debatable. 
 
 An Amendment may also be amended, but an " amendment of 
 an amendment " cannot be amended. A Substitute for the origi- 
 nal motion may be made, even after a motion to amend an amend- 
 ment has been offered, and takes precedence over the original mo- 
 tion and the motions to amend. 
 
 The question first occurs on the motion to Substitute. If this 
 motion be carried, the substitute takes the place of the original 
 
3 i6 LA W OF THE CHURCH. 
 
 motion, and the amendments before made or offered to it. If the 
 motion to substitute be not carried, the question then occurs on 
 the amendment to the amendment. If the amendment to the 
 amendment be lost, the question next occurs on the first amend- 
 ment, or if the amendment to the amendment be carried, on the 
 amendment so amended. 
 
 After the substitute and the amendments have been disposed of. 
 the consideration of the main question is in order. If the amend- 
 ment to the main question be carried, the question must be put by 
 the Chairman, as so amended. 
 
 Motions to Amend should always be put and considered in the 
 reverse order in which they are offered, i.e., the motion last made 
 (relating to the subject matter) must be the first to be considered 
 and disposed of. 
 
 (7) A motion to Postpone Indefinitely is debatable, but cannot 
 be amended. Its object, usually, is to suppress the question before 
 the meeting and prevent a vote being taken thereon. 
 
 Its effect is to prevent any further consideration of the question 
 at that meeting, unless a motion to reconsider the vote of indefinite 
 postponement be made and carried. 
 
 A motion to Reconsider a vote already taken is always in order, 
 although it cannot be considered while any other question is being 
 considered ; but the mover of the motion to Reconsider — which 
 must always be made, except when the vote was by ballot, by one 
 who voted against the motion — may have such motion entered on 
 the minutes, and can then call it up for consideration at any time 
 during the meeting when there is no question before the meeting. 
 
 While there are several Incidental and Privileged Questions, that 
 sometimes arise in large assemblies, the following five Questions, 
 arranged in their order of precedence, are the only ones that will 
 often arise in either Parish or Vestry meetings : 
 
 1. To Fix the Time to which the Meeting shall Adjourn. 
 
 2. To Adjourn. 
 
 3. To Appeal. 
 
 4. To Suspend the Rules. 
 
 5. The Previous Question. 
 
 (1) A motion to Fix the Time to which to Adjourn can be 
 
RULES OF ORDER. 317 
 
 amended, but is not subject to debate, unless no other question 
 is under consideration at the time when such motion is offered. 
 It takes precedence over all other motions, and may be made at 
 any time before the Chairman has announced the vote on a motion 
 to Adjourn, 
 
 (2) A motion to Adjourn, when unqualified, is always in order 
 except when a member has the floor, or while a vote is being taken. 
 If a motion to Adjourn be voted down, it can be renewed at any 
 time, provided any business or debate intervene between the mak- 
 ing of such motions. A motion to Adjourn, when unqualified, can- 
 not be debated, nor can it be amended in any way, and takes pre- 
 cedence over all other motions, except a motion to Fix the Time to 
 which the meeting shall Adjourn. If a motion to Adjourn be made 
 while any question is under consideration, its effect is to place 
 such question in the list of Unfinished Business for the next meet- 
 ing of the Vestry. 
 
 (3) Any member has a right to Appeal from the decision of the 
 Chair, but such Appeal must be made at the time of the decision. 
 An Appeal takes precedence over all other motions and questions 
 named, except a motion to Fix the Time to which to Adjourn, and a 
 motion to Adjourn. Being a Question of Order, it cannot be 
 amended, and is not usually subject to debate. 
 
 (4) A motion to Suspend the " Rules of Order " may be made 
 only once for the same purpose during a meeting. This motion is 
 not subject to debate, and cannot be amended in any way, and 
 must be carried by a two-thirds vote in order to effect a suspen- 
 sion of the rules. 
 
 (5) The Previous Question is not debatable nor subject to amend- 
 ment of any kind, and requires a two-thirds vote for its adoption. It 
 takes precedence over all debatable questions, except a motion to 
 Fix the Time to which to Adjourn. The vote by which it was 
 adopted or rejected may be reconsidered. The object of the Pre- 
 vious Question and its effect, if adopted, is to prevent further debate, 
 and bring the pending question to an immediate vote. 
 
 The following " Order of Precedence cf Motions " is taken from 
 " Roberts' Rules of Order," to which the author is greatly indebted, 
 in his treatment of the subject, and to which reference should be 
 had, for a clear and complete discussion of all questions relating to 
 
3 i 8 LA W OF THE CHURCH. 
 
 "Rules of Order." The author has taken the liberty of omitting 
 " For the Orders of the Day " from the following table, as such 
 " Orders " are intended for meetings of other character than Parish 
 or Vestry meetings, and, therefore, for the purposes of this work, 
 require no consideration. 
 
 " ORDER OF PRECEDENCE OF MOTIONS." 
 " The ordinary motions rank as follows, and any of them (ex- 
 cept to amend) can be made while one of a lower order is pending, 
 but none can supersede one of a higher order ; the Previous 
 Question requires a two-thirds vote, the others only a majority. 
 
 UNDEBATABLE. 
 
 To Fix the Time to Which to Adjourn. 
 To Adjourn (when unqualified). 1 Cannot be 
 
 To Lay on the Table. \ Amended 
 
 The Previous Question (two-thirds vote). 
 
 DEBATABLE. 
 
 To Postpone to a Certain Time. | 
 To Commit or Refer. \ Can be Amended. 
 
 To Amend. 
 
 To Postpone Indefinitely." 
 To the above motions should be added the following questions, 
 which take precedence in the order named, and which are of prior 
 rank to all the motions above named, excepting the two motions 
 first stated, viz., a motion To Fix the Time to Which to Ad- 
 journ, and a motion To Adjourn : 
 
 To Appeal. ~\ 
 
 Objection to the Consideration of the Question. I Cannot be 
 Leave to Withdraw the Motion. f Amended. 
 
 To Suspend the Rules. 
 
 " The motion to Reconsider can be made when any other ques- 
 tion is before the assembly, but cannot be acted upon until the 
 business then before the assembly is disposed of, when, if called 
 up, it takes precedence of all other motions, except to adjourn, 
 and to fix the time to which to adjourn." — (Roberts' Rules of Order, 
 p. 10.) 
 
APPENDICES 
 TOitb forms. 
 
AS the Statute Laws and the mode of procedure in the Courts 
 of the several States are so variant, it is deemed unwise 
 to attempt to set forth any forms of a purely legal nature. 
 Statutory requirements must, in all cases, be strictly complied 
 with, and the services of one learned in the law should always be 
 secured in the preparation of legal forms and instruments. Neg- 
 lect to do so is one of the most fruitful sources of legal complica- 
 tions. 
 
 The Canons of the various Dioceses also differ so widely as to 
 make it impossible to set forth any prescribed series of Canonical 
 forms that will in every case fulfil the requirements of the variant 
 Canons. In the following appendices the author has endeavored 
 to set forth certain forms conlaining the maximum of requirements 
 in each case. It will be necessary in many Dioceses to vary these 
 several forms, in order to make them conform to the requirements 
 of the Canon or Statute Law, or both, as the case may be, and 
 which must be fully complied with. 
 
APPENDIX A. 
 
 FORMS FOR THE INCORPORATION OF CHURCHES. 
 
 FORM OF NOTICE OF MEETING TO INCORPORATE A CHURCH. 
 
 NOTICE is hereby given that a meeting of the male persons 
 (or the persons) of full age, belonging to this Church will be 
 held on the day of , 19 — , at — o'clock in the 
 
 , in this place (the usual place of worship), for the purpose of 
 
 incorporating themselves under the Acts of the Legislature in such 
 case made and provided ; todetermine the corporate name or title by 
 
 which such Church shall be known in law ; on what day in week 
 
 an annual election of Wardens (or Church Wardens) and Vestry- 
 men shall thereafter take place ; what number of Vestrymen, not 
 
 less than nor more than , shall annually be elected 
 
 to constitute, together with the Rector (if there be one), and the 
 two Wardens (or Church Wardens), the Vestry of said Church ; 
 and, by a majority of votes, to elect two Wardens (or Church 
 Wardens), and the number of Vestrymen determined to be 
 elected, to serve until the next annual election. 
 
 Dated, etc. 
 
 [This notice should be signed by the Minister in charge, if there 
 be one, or by the Wardens, or, if there be no Wardens, by any 
 member or members of the congregation, and conspicuously posted 
 on the outer door of the church, or usual place of worship, unless 
 the law provides that it shall be posted elsewhere. 
 
 In some States the Statute requires that the notice shall be read 
 during the time of Divine Service, and in others that it shall both 
 be so read and so posted as before noted. 
 
 In some States, Articles of Association or Agreement, or a Con- 
 stitution, must be adopted at such meeting. In such States the 
 notice should state accordingly. Care should be taken that the 
 notice gives intention of proposed action on every requirement of 
 the Statute or Canon, or both. 
 
 In New York State the last two clauses of the form above given 
 should be altered to read as follows :] 
 
3 22 LA W OF THE CHURCH. 
 
 What number of Vestrymen, not less than three nor more than 
 nine, shall be elected to constitute, together with the Rector {if 
 there be one), and the two Church Wardens, the Vestry of the 
 Church ; and, by a majority of votes, to elect one Church Warden 
 to hold office until the next annual election, and one Church War- 
 den to hold office until one year after such annual election, and 
 one-third of the number of Vestrymen, so determined, to hold office 
 until the first annual election, one-third of such number to hold 
 office until one year after such annual election, and one-third of 
 such number to hold office until two years after such annual elec- 
 tion. 
 
 [In the State of New Jersey the following notice is a sufficient 
 compliance with the statutory requirements:] 
 
 Notice is hereby given to the congregation of Church, in 
 
 , that a meeting of the duly qualified voters cf said Church 
 
 will be held in , on , the day of , at 
 
 o'clock in the noon, for the purpose of taking such 
 
 measures as may be necessary to incorporate the said congregation 
 in accordance with the provisions of chapter sixty-two of the laws 
 of nineteen hundred and one of the State of New Jersey, approved 
 March 20, 1901, and entitled "A Supplement to an Act, entitled 
 l An Act to Incorporate Trustees of Religious Societies ' (Revision), 
 Approved April 9, 1875, etc." 
 
 Dated, etc. 
 
 [To be signed by the Minister and five male members of full age.] 
 
 [In some Dioceses " Articles of Association " must first be 
 adopted and signed by the persons of legal age, so adopting them, 
 and officers be elected. These requirements having been com- 
 plied with, a petition may then be presented to the proper Court, 
 praying for a decree whereby the Church may become incorpor- 
 ated.] 
 
APPENDIX B. 
 
 FORMS OF NOTICE OF ANNUAL ELECTION. 
 
 N' OTICE is hereby given that an election for two Wardens (or 
 Church Wardens) and — Vestrymen, will be held in this 
 church (or parish house, or such other suitable place as 
 
 may be determined upon) on the day of , 19, — , at — 
 
 o'clock in the noon (or evening). 
 
 (If the law requires the polls to remain open a certain specified 
 time, these words should be added to the notice: The polls to re- 
 main open hour [or hours], or longer if necessary.) 
 
 [In New York State, in such Parishes as have become incorpor- 
 ated under the Religious Corporation Act of 1909, being Chapter 
 LI. of the General Laws of that State, or in such Parishes be- 
 fore incorporated as may have duly adopted the provisions of the 
 said Act, the notice of the annual election may read substan- 
 tially as follows :] 
 
 Notice is hereby given, that an election for one Church War- 
 den, to succeed , elected for two years, whose term ot 
 
 office will then expire, and for Vestrymen to succeed 
 
 (naming the Vestryman), elected for three 
 
 years, whose terms (or term) of office will then expire, will be held 
 
 in this church (or place of worship, or parish house), on , 
 
 the — day of 19 — , immediately after morning service, 
 
 which will be held at — o'clock A.M., the polls to remain open one 
 hour, or longer if required. 
 
 [Should any other business than the election of Wardens and 
 Vestrymen be purposed at such meeting, it should be specified in 
 the notice. If an election also be had to fill a vacancy, or for a 
 successor to a Church Warden or Vestryman chosen by the Vestry 
 to fill a vacancy, such fact should be stated in the notice.] 
 
APPENDIX C. 
 
 FORMS RELATING TO ELECTION OF WARDENS AND 
 
 VESTRYMEN. 
 
 FORM OF CERTIFICATE OF ELECTION OF WARDENS AND 
 VESTRYMEN. 
 
 T 
 
 HIS is to certify that at the stated annual election of War- 
 dens (or Church Wardens) and Vestrymen, for Church, 
 
 , held, in pursuance to notice duly given, at 
 
 church (or, at the usual place of worship of said Church), on the 
 day of 19 — , at — o'clock a.m. (or p.m.), the fol- 
 lowing persons were duly elected by a majority of the votes cast by 
 
 the persons present and qualified so to vote : , and , 
 
 as Wardens (or Church Wardens, or as Senior Warden, 
 
 and , as Junior Warden), and — (naming the per- 
 sons), as Vestrymen for the ensuing year. 
 
 [In those States or Dioceses where the law requires that the cer- 
 tificate of the election of Wardens and Vestrymen shall be filed 
 for record with some designated civil officer, it should be duly ac- 
 knowledged.] 
 
 FORM OF ENTRY OF ELECTION IN BOOK OF MINUTES. 
 
 Church, , the day of , 19 — . 
 
 At a meeting of the qualified electors of said Church, of which 
 
 notice was duly given according to law, held at the , on 
 
 , the ■ day of , 19 — , at a.m. (or p.m.), 
 
 to elect Wardens (or Churchwardens), and Vestrymen, I, the Rev. 
 
 , Rector (or , one of the Wardens, or Church 
 
 Wardens) of said Church, presided at such meeting, and (unless the 
 law provides otherwise) received the votes of the said electors. 
 I do also affirm that the polls were kept open for one hour (if the 
 law so requires) ; that the following named persons, having each 
 received a majority of the whole number of votes cast, were de- 
 clared elected Wardens and Vestrymen of said Church for the 
 
 ensuing year: and Wardens (or Church Wardens, or 
 
 Senior Warden, and Junior Warden), and 
 
 {naming the persons). Vestrymen. 
 
APPENDICES. 325 
 
 [This should be signed by the Presiding Officer and the Secretary 
 of the meeting or by such other persons as the law may direct. If 
 the election be to fill a vacancy, the same form, with obvious 
 changes, may be used. If any other business than the election of 
 Wardens and Vestrymen be transacted at such meeting it should 
 also be recorded in the " Book of Minutes." In New York State 
 in such Parishes as may hold their elections under the provisions 
 of the Religious Corporations Law of 1909, the terms for which the 
 Churchwarden and Vestrymen were elected, and the names of the 
 Church Warden and Vestrymen whom they succeed, should also 
 be entered in the " Book of Minutes," and the above form varied 
 accordingly.] 
 
APPENDIX D. 
 
 FORM OF CERTIFICATE OF LAY DEPUTIES TO DIO- 
 CESAN CONVENTIONS. 
 
 {Name of Church and Placed) 
 {Date.) 
 
 THIS is to certify that at a regular meeting of the Vestry of 
 this Church {or at the annual meeting of the Parish for 
 the election of Church officers and Deputies to the Conven- 
 tion), held according to law on the day of , 19 — , 
 
 in {naming the place), {giving the names of the 
 
 Persons ififull), were duly elected Lay Deputies {or Delegates) for 
 the ensuing year, to the Convention {or Council) of the Church in 
 the Diocese of , and that each of said Deputies {or Dele- 
 gates) so elected, is a communicant of the Church in this Parish. 
 {[/other qualifications are required by the Canons, state that each 
 is so qualified. ) 
 
 [This certificate must be signed by the Rector and such other officer 
 as the Canons may direct. If there be no Rector, it should be so 
 stated in the certificate, and the certificate signed by the Warden 
 who presided at such meeting, or by both Wardens, according as 
 the Canons may require. 
 
 In most of the Dioceses, the form of the certificate is prescribed 
 by the Canons or by the Convention or Council of the Diocese, and 
 where so prescribed should be strictly followed. The above form 
 is given simply as a guide to Parishes, in those Dioceses where no 
 particular form is prescribed by the Canons or the Convention. 
 Where alternates ate chosen, their names may be included in one 
 certificate, the language being varied accordingly.] 
 
APPENDIX E. 
 
 FORMS RELATING TO THE TRANSFER OF REAL CHURCH 
 PROPERTY. 
 
 FORM OF PETITION TO THE BISHOP AND STANDING COMMIT- 
 TEE OF THE DIOCESE FOR PERMISSION TO ALIENATE 
 REAL CHURCH PROPERTY. 
 
 To the Bishop and Standing Committee of the Diocese of : 
 
 THE petition of the Rector, Wardens {or Church Wardens) 
 and Vestrymen of Church in , respectfully 
 
 showeth : 
 
 That they are seized in fee of certain premises, consisting of one 
 
 tract of land, situated in said , bounded and described as 
 
 follows : {Here describe the premises in full. If any buildings 
 are situated on such premises, so state.) That the said Corpora- 
 tion have incurred a debt of dollars by reason of 
 
 {stating the reason, or that they desire to erect a church or parish 
 house or rectory, as the case may be, stating concisely the reason 
 for desiring to alienate the property described, and that the ?noney 
 to be derived from the sale or mortgage of such property is neces- 
 sary for the purpose stated). That said premises are valued in the 
 sum of dollars. 
 
 That at a meeting of the Vestry of said Church, duly called, 
 
 and held on the day of , 19—, at which meeting were 
 
 present the Rector, two Wardens {or Church Wardens) and 
 
 Vestrymen, being a majority of the same, the following 
 
 resolution was adopted by a majority vote {or unanimous vote) of 
 those present at said meeting, to wit : {Insert the resolution?) 
 
 That a meeting of the qualified voters of said Church was held 
 in the church {or usual place of worship) of said corporation, 
 
 on , the day of , 19 — , pursuant to a notice 
 
 duly given, which notice contained the aforesaid resolution, and 
 
328 LA W OF THE CHURCH. 
 
 stated that said resolution would be then and there submitted to 
 the qualified voters of said Church for their approval or rejection ; 
 and that at said meeting a vote was taken for that purpose, and said 
 resolution was adopted by an unanimous vote {or by the vote of a 
 majority of the qualified voters present thereat). 
 
 Your petitioners therefore pray that the consent of the Bishop 
 and Standing Committee may be given to the sale {or mortgage, 
 or otherwise as may be desired} of the said premises herein de- 
 scribed. 
 
 The Rector, Wardens {or Church Wardens), and Ves- 
 trymen of Church in . 
 
 Per , Rector. 
 
 Dated, etc. 
 
APPENDIX F. 
 
 FORMS FOR ORGANIZING MISSIONS AND PARISHES. 
 
 FORM OF APPLICATION TO THE BISHOP FOR HIS CONSENT 
 TO ESTABLISH A MISSION. 
 
 IN many of the Dioceses the Canons prescribe the form of the 
 application to be sent to the Bishop, asking his consent to the 
 establishment of a Mission. In those Dioceses where no form 
 is so prescribed, the application may be made substantially as 
 follows : 
 To the Right Reverend , Pishop of the Diocese of .• 
 
 We, the undersigned, residents of (or in or near) the of 
 
 , County of , in this Diocese, being desirous of ob- 
 taining the ministrations of the Protestant Episcopal Church for 
 ourselves and for our families, do hereby request the Bishop that 
 he will provide the same for us, in such wise as he may deem ex- 
 pedient (or do hereby unite in the organization of a " Mission " 
 of said Church). 
 
 And for these benefits, we do hereby place ourselves under the 
 jurisdiction of the Bishop (or Ecclesiastical Authority) of this Dio- 
 cese, and do recognize and promise obedience and conformity to 
 the Constitutions and Canons of the General Convention, and of 
 the Church in this Diocese ; and we desire to be organized as a 
 " Mission" (or we ask to be received as an " Organized Mission "), 
 
 in accordance therewith, under the name of " Mission, 
 
 in ." 
 
 And furthermore, we do hereby agree to pay monthly (or for 
 this year), from this Mission and for its support, to the Treasurer 
 of the Board of Missions (or to the Treasurer of the Mission), the 
 
 sum of $ .until , 19 — , and thereafter a sum to be 
 
 stated to the Bishop at each Convention of the Diocese. 
 
 [This application, or a like application, must be signed by those 
 who desire the services of the Church, and purpose to be members 
 of the Mission.] 
 
330 LA W OF THE CHURCH. 
 
 FORM OF APPLICATION TO THE BISHOP FOR HIS CONSENT TO 
 ORGANIZE A NEW PARISH. 
 
 To the Right Reverend , Bishop of : 
 
 We, whose names are here underwritten, respectfully show that 
 we are each (stating every requirement of the Canon in such 
 
 case made and provided), that we are residents of — , 
 
 County of , in this Diocese, and being deeply sensible of the 
 
 Truth of the Christian Religion, and conscientiously attached to 
 the Doctrine, Discipline and Worship of the Protestant Episcopal 
 Church in the United States, and being earnestly desirous of estab- 
 lishing its authority, and securing its holy influences, for ourselves, 
 our families, and neighbors, and those to come after us, do here- 
 by respectfully ask the permission of the Bishop of the Diocese to 
 associate and organize ourselves and others, as a Parish of the 
 
 said Church, in the Diocese of , under the name and title of 
 
 , in said place herein designated ; and we hereby solemnly 
 
 promise and declare that the said Parish shall be forever held and 
 incorporated under the Ecclesiastical Authority of the Bishop of 
 
 , and of his successors in office, and in conformity with the 
 
 Constitution and Canons of the Protestant Episcopal Church in the 
 United States of America, and the Constitution and Canons of the 
 
 Diocese of , the authority of which we do hereby recognize, 
 
 and to whose Liturgy, Doctrine, Discipline, Rites and Usages, we 
 promise at all times, for ourselves and our successors, corporate 
 obedience and conformity. Furthermore, we solemnly engage and 
 stipulate that all real estate of which the said Parish may become 
 possessed shall be secured forever against alienation from the 
 Church, now known as the " Protestant Episcopal Church in the 
 United States of America," unless with the consent of the Bishop 
 and Standing Committee of this Diocese, or, in case of a division of 
 this Diocese, of that Diocese within whose jurisdiction we may 
 come. We, your petitioners, would further state that our place of 
 
 worship (or intended place of worship) is distant from 
 
 church in , from church in , 
 
 from church in ; and we do hereby promise and 
 
 stipulate that we will not erect any church edifice or place»of 
 
APPENDICES. 33 x 
 
 worship within a distance of from any existing church. 
 
 chapel, or place of worship of any congregation in communion with 
 the said Protestant Episcopal Church. We do also promise and 
 engage that the said Parish will apply so soon as possible after its 
 incorporation, for admission into union with the Convention of the 
 
 Diocese of , and will become subject to the Constitution and 
 
 Canons thereof. 
 
 Dated day of , 19 — . 
 
 [If any other facts are required by the Canons of the Diocese, 
 they should also be stated therein. This petition must be signed 
 by the full number of persons determined by the Canons of the 
 Diocese, and possessing the qualifications therein required. 
 
 Owing to the varying requirements of the Canons of the several 
 Dioceses in the matter of the petition to the Bishop for consent to 
 establish a new Parish, it is impossible to set forth a form that will 
 fulfil the requirements in every Diocese. The above form is given 
 as a model, which may be varied more or less materially, to com- 
 ply with the varying requirements in those Dioceses where the pre- 
 cise form of the petition is not prescribed by the Canons or by 
 the Convention.] 
 
 FORM OF CONSENT. 
 
 The petition of certain persons desiring the formation of a 
 
 new Parish in the of , County of , to be 
 
 known as Church, having been duly considered {insert the 
 
 words, by the Standing Committee and by them approved, if the 
 Canons require such consent), I do hereby give my canonical con- 
 sent to the formation of said Parish, in agreement with the prom- 
 ises, engagements, and stipulations contained in the said petition. 
 
 Given under my hand this day of , in the year of 
 
 our Lord one thousand nine hundred and . 
 
 , Bishop of . 
 
 Attest : , Secretary of the Standing Committee. 
 
 FORM OF NOTICE OF ORGANIZATION. 
 
 Notice is hereby given that we, whose names are here under- 
 written, and who signed the application made to the Bishop for 
 
332 LA W OF THE CHURCH. 
 
 his consent to the formation of a Parish in , to be known 
 
 as the Rector, Wardens (or Church Wardens) and Vestrymen of 
 
 Church, in , , will assemble at , for the 
 
 purpose of organizing said Parish of the Protestant Episcopal 
 
 Church in -, County of , and State of , in the 
 
 Diocese of , on , the day of , A.D. 19 — , 
 
 at the hour of o'clock in the . 
 
 Dated . 
 
 [This notice should be signed by the same persons, and by all of 
 them, who signed the application to the Bishop. The meeting 
 assembled in pursuance of such notice duly given should adopt 
 Articles of Association or Agreement, or a Constitution, as the 
 Canons may require. The requirements of the Canons of the sev- 
 eral Dioceses regarding such Articles or Constitution are so vari- 
 ant as to render it impossible to set forth any prescribed form 
 for general use. In many of the Dioceses a form is set forth by 
 the Convention, and in most of those Dioceses where no form is 
 so set forth, the necessary requirements are prescribed in the Con- 
 stitution and Canons of the Diocese, and, in some cases, by the 
 Statute Law of the State. In many cases it will be found advisable 
 to embody in such Articles or Constitution the main facts set 
 forth in the petition to the Bishop.] 
 
APPENDIX G. 
 
 FORMS FOR POSTULANTS AND CANDIDATES FOR HOLY 
 ORDERS. 
 
 [The forms following denominated " Canonical," are those act- 
 ually prescribed by the general Canons, and must be strictly fol- 
 lowed.] 
 
 NOTICE OF INTENTION TO BECOME A POSTULANT. 
 
 To the Right Reverend , Bishop of : 
 
 Right Reverend and Dear Sir: 
 
 Having resolved to devote myself to the Sacred Ministry of the 
 Church, and believing myself to be inwardly moved thereto by the 
 Holy Spirit, I hereby, with the approval of my Pastor {or if he has 
 
 no Pastor, of the Rev. , a Presbyter of the Church to whom 
 
 I am personally known), and whose letter I herewith inclose, give 
 the notice required by Canon I, "Of Postulants ," and respectfully 
 ask to be admitted as a Postulant in your Diocese. 
 
 My full name is ; I was born in , on the 
 
 day of , A.D. ; I have been a resident in this 
 
 Diocese (or Missionary District) for years (or months); I 
 
 was baptized on the day of , A.D. , by the Rev. 
 
 ; confirmed in Church, , on the 
 
 day of , A.D. , by the Right Reverend , , 
 
 Bishop of ; was admitted to the Holy Communion in 
 
 Church, , on the day of , A.D. . 
 
 I have never before applied for admission as a Postulant or Can- 
 didate for Holy Orders. (If, however, he has before so applied, he 
 must state the fact, with an explanation of the same.) 
 
 I am moved to seek the Sacred Ministry (here state the grounds, 
 
 etc.). 
 
 [Signed] 
 
334 LA W OF THE CHURCH. 
 
 FORM OF POSTULANT'S APPLICATION TO THE STANDING 
 COMMITTEE FOR RECOMMENDATION AS A CANDI- 
 DATE FOR HOLY ORDERS. 
 
 71? the Standing Committee of the Diocese of „■ 
 
 {Place) 
 {Date) 
 
 I, , being years of age, and having been duly re- 
 ceived as a Postulant in this Diocese, do hereby make application 
 to be by you recommended to the Bishop of , for admis- 
 sion as a Candidate for Holy Orders. 
 
 I enclose herewith the Bishop's Certificate of my admission as a 
 Postulant, and the Canonical certificate of the Minister and a 
 majority of the Vestry of the Parish to which I belong. 
 
 [Signed] . 
 
 CANONICAL CERTIFICATE OF MINISTER AND VESTRY. 
 
 To the Standing Committee of : 
 
 Place, Date, 
 
 We, whose names are hereunder written, testify to our belief 
 (based on personal knowledge or on evidence satisfactory to us) 
 
 that is sober, honest, and godly, and that he is a 
 
 communicant of this Church in good standing. We do further- 
 more declare that, in our opinion, he possesses such qualifications 
 as fit him to be admitted a candidate for Koly Orders. 
 
 [Signed] . 
 
 [This certificate must be signed by the Minister of the Parish to 
 which the applicant belongs, and by a majority of the whole Ves- 
 try, and must be attested by the Minister, or by the Secretary of 
 the Vestry, as follows :] 
 
 I hereby certify that the foregoing certificate was signed at a 
 
 meeting of the Vestry of Parish, duly convened at , 
 
 on the day of , and that the names attached are those 
 
 of all (or a majority of all) the members of the Vestry. 
 
 [Signed] — , 
 
 Minister or Secretary. 
 
APPENDICES. 335 
 
 [Care should be taken to have the above certificate signed by 
 the members of the Vestry during the meeting of the Vestry. 
 Signing the certificate after the meeting had adjourned would not 
 be a sufficient compliance with the Canon, which requires that the 
 attestation to the certificate must state that it was signed " at a meet- 
 ing duly convened" {See Canon 2, Section i., of the Digest.) 
 If the Parish to which the applicant belongs be without a Minis- 
 ter, the certificate may be signed by any Presbyter of the Diocese 
 in good standing, the reason therefor being stated in the attesting 
 clause. If there be no Parish at the place of residence of the ap- 
 plicant, the certificate may be signed by any Presbyter of the Dio- 
 cese in good standing, and by four Laymen, communicants of the 
 Church, in good standing, in which case the reasons for departing 
 from the regular f^rm must be stated in the attesting clause, which 
 shall be signed by the same, or some other Presbyter of the 
 Church, and shall be in the following words, viz.] : 
 
 I hereby certify that th~ Laymen whose names are attached to 
 the foregoing certificate are communicants of this Church in good 
 standing, and that this form of certificate was used for no reasons 
 affecting the moral or religious character cf the candidate, but be- 
 cause {here give the reasons for departing from the regular form). 
 [Signed] 
 
 Presbyter of the Diocese, or Missionary District of . 
 
 [In case the applicant should have been a Minister or Licentiate 
 in some other body of Christians, the certificate to the Standing 
 Committee may be signed by eight Adult Laymen, members in good 
 standing of the denomination from which the applicant has come, 
 or members of the Church, or in part members of the Church, and 
 in part members of the said denomination. These signatures and 
 the good standing of the signers must be attested by some person 
 or persons known to a member of the Standing Committee, or else 
 under the seal of a Notary Public in the following words, viz. :] 
 
 I do hereby certify that the names attached to the foregoing cer- 
 tificate are genuine, and are those of persons in good standing, 
 members of {as the case may be). 
 
 [Signed] 
 
336 LA W OF THE CHURCH. 
 
 CANONICAL CERTIFICATE TO BE LAID BEFORE THE STANDING 
 
 COMMITTEE IF THE APPLICANT BE A MINISTER 
 
 OF ANOTHER CHRISTIAN BODY. 
 
 To the Standing Committee of .- 
 
 Place, Date, 
 
 We do hereby certify that we are personally acquainted with 
 
 ; that he has become a communicant of this Church, 
 
 and that we believe him to be sober, honest, and godly. Further- 
 more, we are satisfied after personal examination and due inquiry 
 concerning him as to his former religious relations, that he accepts 
 the Doctrine, Discipline and Worship of this Church, and that his 
 change of relations has not arisen from any circumstances unfav- 
 orable to his moral or Christian character, or on account of which 
 it may not be expedient to admit him to the Ministry of this 
 Church. 
 
 [Signed] 
 
 [This certificate must be signed by two Presbyters of the Church 
 known to the Committee.] 
 
 CANONICAL TESTIMONIAL OF RECOMMENDATION BY THE 
 STANDING COMMITTEE. 
 
 To the Right Reverend , Bishop of: 
 
 We, being a majority of all the members of the Standing Com- 
 mittee of , and having been duly convened at , 
 
 do testify that from personal knowledge or from certificates laid 
 
 before us, we are well assured that is sober, honest 
 
 and godly ; and that he is a communicant of this Church in good 
 standing ; and we do furthermore declare that, in our opinion, he 
 possesses qualifications which fit him to be admitted a Candidate 
 for Holy Orders. 
 
APPENDICES. 337 
 
 In witness whereof, we have hereunto set our hands this 
 
 day of , in the year of our Lord . 
 
 [Signed] 
 
 FORM OF CANDIDATE'S APPLICATION TO THE STANDING COM- 
 MITTEE FOR RECOMMENDATION TO THE BISHOP FOR 
 ORDINATION TO THE SACRED ORDER OF DEACONS. 
 
 To the Standing Committee of the Diocese of : 
 
 {Place) 
 (Date) 
 
 I, , a Candidate for Holy Orders in this Diocese, do 
 
 hereby make application to be by you recommended to the Bishop 
 of ths Diocese, for ordination to the Sacred Order of Deacons. I 
 was born in , on the day of ~, 18 — . 
 
 I inclose herewith, as required by Canon, the certificate of the 
 Bishop, as to the date of my admission as a Candidate, and the 
 
 character of my candidateship; the certificate of the Rev. , a 
 
 Presbyter of the Church ; and a certificate from the Minister and 
 Vestry of the Parish of which I am a member. 
 [Signed] 
 
 CANONICAL CERTIFICATE OF A PRESBYTER. 
 
 To the Standing Committee of ; 
 
 {Place) 
 (Dale) 
 
 I hereby certify that I am personally acquainted with , 
 
 and that I believe him to be well qualified to minister 'n the Office 
 of Deacon to the glory of God and the edification of His Church. 
 [Signed] 
 
 CANONICAL CERTIFICATE OF MINISTER AND VESTRY. 
 
 To the Standing Committee of ; 
 
 Place, Date, 
 We do certify that, after due inquiry, we are well assured and be- 
 lieve that , for the space of three years last past, hath 
 
 lived a sober, honest and godly life, and that he is loyal to the Doc- 
 
338 LA W OF THE CHURCH. 
 
 trine, Discipline and Worship of this Church, and does not hold 
 anything contrary thereto. And, moreover, we think him a person 
 worthy to be admitted to the Sacred Order of Deacons. 
 
 [Signed] Minister of Parish. 
 
 Vestry of . 
 
 [This certificate must be attested by the Minister of the 
 Parish, or by the Clerk or Secretary of the Vestry, as fol- 
 lows, viz.:] 
 
 I hereby certify that is a member of Parish in 
 
 , and a communicant in the same ; that the foregoing cer- 
 tificate was signed at a meeting of the Vestry duly convened at 
 
 on the day of , and that all the names 
 
 attached are those of all (or a majority of all) of the members 
 of the Vestry. 
 
 [Signed] Minister of , 
 
 or Clerk or Secretary of Vestry. 
 
 [Care should be taken to have this certificate signed by the 
 members of the Vestry, during the meeting, and before the ad- 
 journment thereof. 
 
 If the Parish be without a Minister, the certificate may be signed 
 by the Vestry and any Presbyter of the Diocese in good standing. 
 The reason for so departing from the regular form must be stated 
 in the attesting clause. If there be no Parish at the place of resi- 
 dence of the Candidate, the certificate may be signed by any Pres- 
 byter of the Church in good standing, and six Laymen, communi- 
 cants of this Church in good standing. 
 
 In such case, the reasons for departing from the regular form 
 must be given in the attesting clause, which shall be signed by a 
 Presbyter in good standing in the following words, viz. :] 
 
 I hereby certify that the laymen whose names are attached to 
 the foregoing certificate are communicants of this Church in good 
 standing, and that this form of certificate was used for no reasons 
 affecting the moral or religious character of the Candidate, but 
 
APPENDICES 339 
 
 because (here give the reasons for departing from the regular 
 form.) 
 
 [Signed] 
 
 CANONICAL TESTIMONIAL OF THE STANDING COMMITTEE. 
 (DEACON'S ORDERS.) 
 
 To the Right Reverend , Bishop of .• 
 
 We, being a majority of all the members of the Standing Com- 
 mittee of , and having been duly convened at , do 
 
 testify that , desiring to be ordered Deacon, hath 
 
 laid before us satisfactory certificates that for the space of three 
 years last past he hath lived a sober, honest, and godly life, and 
 that he is loyal to the Doctrine, Discipline, and Worship of this 
 Church, and does not hold anything contrary thereto. And we 
 hereby recommend him for ordination to the Diaconate. 
 
 In witness whereof, we have hereunto set our hands, this 
 
 day of , in the year of our Lord . 
 
 [Signed] 
 
 FORM OF CANDIDATE S APPLICATION FOR ORDINATION TO 
 THE PRIESTHOOD. 
 
 To the Standing Committee of the Diocese of .• 
 
 {Place) 
 {Date) 
 
 I, , a Candidate for Priest's Orders in this Diocese, do 
 
 hereby make application to be by you recommended to the Bishop 
 of this Diocese for ordination to the Sacred Order of Priests. I 
 
 was born on the day of , a.d. . I inclose 
 
 herewith the certificate of the Bishop declaring that the term of my 
 candidateship and the term of my service in the Diaconate have 
 been completed ; also the certificate of the Minister and Vestry of 
 the Parish where I reside. 
 
 [Signed] . 
 
34 o LA W OF THE CHURCH. 
 
 CANONICAL CERTIFICATE OF THE MINISTER AND VESTRY 
 OF THE PARISH. 
 
 To the Standing Committee of 
 
 Place, Date, 
 
 We do certify that, after due inquiry, we are well assured and 
 
 believe that the Reverend . Deacon, since the 
 
 day of in the year , being the date of his ordination 
 
 to the Diaconate [or for the space of three years last passed], hath 
 lived a sober, honest, and godly life, and hath not written, taught, 
 or held anything contrary to the Doctrine, Discipline, or Worship 
 of this Church. And, moreover, we think him a person worthy to 
 be admitted to the Sacred Order of Priests. 
 
 [Signed] 
 
 [The Canon requires that this certificate must be attested by the 
 Minister of the Parish, or by the Clerk or Secretary of the Vestry, as 
 follows :] 
 
 I hereby certify that the Reverend is a resident of 
 
 Parish in ; that the foregoing certificate was signed 
 
 at a meeting of the Vestry duly convened at on the 
 
 day of , and that the names attached are those of all (or a 
 
 majority of all) the members of the Vestry. 
 
 [Signed] 
 
 The Minister of , 
 
 or Clerk or Secretary of Vestry. 
 
 [The Canon provides that if the Parish be without a Minister, it 
 shall suffice that in his place the certificate be signed by some 
 Presbyter of the Diocese or Missionary District in good standing, 
 the reason for the substitution being stated in the attesting clause. 
 
 The Canon also provides that if there be no Parish where the 
 Candidate resides, the Standing Committee may accept a certifi- 
 cate in the same words, signed by one Presbyter of the Church in 
 good standing, and six Laymen, communicants of the Church in 
 good standing, and the said Presbyter, or some other Presbyter 
 
APPENDICES. 341 
 
 of this Church in good standing, shall attest the certificate, and 
 in the following words :] 
 
 I hereby certify that the laymen whose names are attached to 
 the foregoing certificate are communicants of this Church in good 
 standing, and that this form of certificate was used for no reasons 
 affecting the moral or religious character of the candidate, but 
 because (here give the reasons for departing from the regular 
 form). 
 
 [Signed] 
 Presbyter of the Diocese, or Missionary District of . 
 
 CANONICAL TESTIMONIAL OF THE STANDING COMMITTEE. 
 (PRIEST'S ORDERS.) 
 
 To the Right Reverend , Bishop of ; 
 
 We, being a majority of all the members of the Standing Com- 
 mittee of , and having been duly convened at , do 
 
 testify that the Rev. , Deacon, desiring to be ordered 
 
 Priest, hath laid before us satisfactory certificates that since the 
 day of in the year , being the date of his or- 
 dination to the Diaconate [or for the space of three years last past], 
 he hath lived a sober, honest, and godly life, and hath not written, 
 taught, or held anything contrary to the Doctrine, Discipline, or 
 Worship of this Church ; and we hereby recommend him for ordi- 
 nation to the Priesthood. 
 
 In witness whereof we have hereunto set our hands, this 
 
 day of , in the year of our Lord . 
 
 [Signed] 
 
 [While the several certificates for Priest's Orders are substan- 
 tially in the same words as the corresponding certificates for 
 Deacon's Orders, yet it has been deemed advisable to set forth the 
 required certificates in each case, as the Canons state that " No 
 certificate or testimonial, the form of which is supplied by Canon, 
 shall be valid, unless it be in the words prescribed." — (Canon 8, 
 Section ii., of the Digest.) 
 
 All the foregoing forms, designated as "Canonical " certificates 
 or testimonials, are those so supplied by Canon, and must be strictly 
 followed. The Canons also provide that "No Postulant or Can- 
 
342 LA W OF THE CHURCH. 
 
 didate for Holy Orders shall sign any of the certificates prescribed 
 in the foregoing Canons of Ordination." 
 
 Whenever a dated certificate or testimonial is required, the 
 omission of the date shall render such certificate or testimonial li- 
 able to rejection. — {Canon 8, Section ii., of the Digest.') 
 
 Whenever the certificate of a Vestry is required, such certifi- 
 cate must be signed by a majority of the whole Vestry, at a meet- 
 ing duly convened, and the fact must be attested by the Secretary 
 of the said Vestry or by the Minister. — {Canon 8, Section ii., of 
 the Digest.) 
 
 It should be noted, as has before been remarked, that "at a 
 meeting duly convened" means while the meeting is still convened, 
 and not after the meeting has adjourned. A certificate signed by 
 the Vestry after the meeting had adjourned would be invalid, and 
 the Secretary or Minister could not attest that it was signed " at 
 a meeting duly convened," as the Canon explicitly requires. 
 
 Too great care cannot be taken to comply strictly with every re- 
 quirement of the Canons relating to Ordination.] 
 
APPENDIX H. 
 
 MISCELLANEOUS FORMS. 
 
 NOTICE TO THE BISHOP OF THE ELECTION OF A RECTOR OR 
 
 ASSISTANT MINISTER. 
 
 TO the Right Reverend , Bishop of : 
 We, the Church Wardens [or, in case of an Assistant 
 Minister, We, the Rector and Church Wardens], do certify- 
 to the Right Rev. {naming the Bishrp], or to the Rev. [naming 
 the President of the Standing Committee], that [naming the per- 
 son] has been duly chosen Rector [or Assistant Minister, as the 
 case may be] of [naming the Parish or Church], 
 
 [Signed] , Church Wardens. 
 
 Dated at , the day of , A.D. 19 — . 
 
 [In case of the election of an Assistant Minister, the Rector 
 must also sign this notice. — {Canon 15, Section v., of the 
 Digest.)] 
 
 CANONICAL LETTER DIMISSORY. 
 
 To the Right Reverend , Bishop of .• 
 
 I hereby certify that , who has signified to me his desire 
 
 to be transferred to the Ecclesiastical Authority of , is a 
 
 Presbyter (or Deacon), of , in good standing, and has not, 
 
 so far as I know or believe, been justly liable to evil report, for 
 error in religion or viciousness of life, for three years last past. 
 
 [Signed] , Bishop of . 
 
 Dated at , the day of , A.D. 19—. 
 
 CANONICAL CERTIFICATE OF TRANSFER. 
 
 I hereby certify that the Rev. has been canonically 
 
 transferred to my jurisdiction, and is a Minister in good standing. 
 
 [Signed] , Bishop of . 
 
 Dated at , the — day of , A.D. 19—. 
 
344 APPENDICES. 
 
 FORMS FOR COMMENDATORY LETTERS. 
 
 {Place.) , Date . 
 
 In the name of the Father, and of the Son, and of the Holy 
 Ghost. Amen. 
 
 I certify that the bearer of this letter, , is a Communicant 
 
 in good standing of the Parish {or Mission) of , and upon 
 
 his {or her) request is hereby dismissed from our pastoral care, 
 
 and commended to the pastoral care of . 
 
 [Signed] , 
 
 Rector {or Warden). 
 
 I hereby certify that , who has signified to me his {or 
 
 her) desire to be transferred to the Parish of , is a member 
 
 of the Church, and has been a communicant in good standing for 
 years past in the Parish of , and as such is affection- 
 ately commended to the charge of , as his {or her) Pastor 
 
 in the Church of God. 
 
 This certificate, if not presented in six months from date, may be 
 held to be void, and it is not to be used as a general testimonial. 
 
 [Signed] . 
 
 Dated, . 
 
 [It is made the duty of every communicant, by the Canon of the 
 General Convention, to apply, on removal from the Parish, for a 
 letter testimonial of his or her standing. {Canon 40, Section i., of 
 the Digest.) In many of our Parishes this Canon is practically a 
 dead letter, thus rendering the statistics of the Church relating to 
 the communicants thereof less reliable than they ought to be. More 
 positive legislation on this question by the General Convention of 
 the Church is sadly needed.] 
 
TABLE OF CASES. 
 
TABLE OF CASES. 
 
 [THE NUMBERS REFER TO THE PAGES.] 
 
 Alston v. Attlay 33 
 
 Appeal of Ritenhouse. . 161,307 
 
 Asher v. Calcraft 293 
 
 Avery v. Tyringham 243 
 
 Bailey v. M. E. Church 155 
 
 Baker et al. v. Wood. 
 
 137,196,198,255 
 Bartlett et al. v. Hipkins 
 
 41,45,241 
 
 Batterson et al. -v. Thompson 
 
 et al. . . .41,106,110,243,263 
 
 Baxter v. McDonald 176 
 
 Beal v . Fox 34 
 
 Beck v. Hanscom 202 
 
 Beckett v. Lawrence 307 
 
 Berryman v. Perkins 191 
 
 Bird v. Smith . .172 
 
 v. St Mark's Church 
 
 179. 2 43 
 Blake v. Church Wardens, etc. 
 277 
 
 Boehm v. Engle 23 
 
 Bogardus v. Trinity Church 
 
 23, 42, 104 
 Brick Pres. Church v. Mayor. 168 
 
 Brown v Langdon 63 
 
 Burder v. Mayor 33 
 
 Burton v. Henson 293 
 
 Cammeyer v. The Churches.etc. 
 
 161 
 
 Canal Appraisers v. People 
 
 et al 23,42 
 
 Cargill v. Sewall 264 
 
 Caudry's Case 31 
 
 Chase v. Cheney. 
 
 93, no, 166, 171, 177 
 Christ Church v. Phillips. 
 
 93,171,176 
 
 Church v. Bowden 166 
 
 > v. Church 159 
 
 Church Wardens St. John's 
 Church.etc , v Parishioners, 
 
 etc 276 
 
 Commendams, Case of the. . . 31 
 
 Commonwealth v. Cain 167 
 
 v. Knowlton 23 
 
 v. Leach et al 23 
 
 Comstock v. Howd 167 
 
 Connitt et al. v. Dutch Church 
 
 et al 176,186 
 
 Constant v. Rector, etc 161 
 
 Craig v. First Pres. Church, etc. 
 
 195 
 
 Crump v. Morgan. .41, 104, no 
 
 Dahl v. Palache 121 
 
 Daniel v Wood 165 
 
 D-irtmouth College v. Wood- 
 ward 155 
 
 Deaderick v. Lampson 166 
 
 Dean v. Met. El. R. R. Co . . 2 1 8 
 DeRuyter v. Trustees, etc. 
 
 19, 23, 34, 42 
 Dewdny v. Good . . 257, 276, 304 
 Diligent Fire Co. v. Common- 
 wealth 155 
 
 Doremus v. Dutch Church.. 186 
 
 East Norway Lake Church 
 
 et al. v. Halvorson 176 
 
 Elizabeth, The 218 
 
 Evans v. Dodson 277 
 
 — v. Evans 245 
 
 Evars v Owens 39 
 
 Eyre v. Jones 274 
 
 First Bap. Church v. Bigelow 
 
 164 
 
 Church,etc.,f. Hilleryi32 
 
 Fowler v. Pierce 191 
 
 Gaff et al. v. Greer etal. .93,176 
 
348 
 
 LA W OF THE CHURCH. 
 
 Gaines v. Coates 1 54 
 
 Gaskins v. Gaskins. .41,104,110 
 Ger. Ref. Church v. Seibert. .93 
 Gorham v. Bishop of Exeter.21 2 
 Greenslade v. Darby.. . 183, 262 
 Griffith v. Dighton 305 
 
 Hallman v. Bennett 218 
 
 Hartt v. Harvey 139 
 
 Harward v- Arden 237, 304 
 
 Heeney v. St. Peter's Church 
 
 no, 165 
 
 Heiskell v. Mayor, etc 155 
 
 Hennessy v. Walsh 177 
 
 Humbert v. St. Stephen's 
 
 Church.. 23,1 10,239,258,264 
 
 Hutchins v. Denziloe 267 
 
 In re Directors L. I. R. R. Co. 
 167 
 
 Isham v. Fullager 166 
 
 v. Trustees, etc 160 
 
 J ackson v. Adams 294 
 
 James v. Dubois 218 
 
 Jennings v, Scarborough, etc. 
 
 1 10, 1 76, 240, 243, 247, 263 
 Jones, Case of Rev. Cave. . . 107 
 
 -v. Lamar 218 
 
 v. Wadsworth 1 60 
 
 Kellogg v. Dickenson 165 
 
 King v. Brower 202 
 
 v. Miller 202 
 
 Kuns v. Robertson 176 
 
 Lee v. Matthews 256, 305 
 
 Leonard v. Lent 161 
 
 Livingston v. Rector et al. 
 
 109, 1 ti, 171, 176, 251, 263 
 Lynd v. Menzies 
 109, 1 10, 163 ,183, 243, 260, 263 
 
 McCall v. The Byram Mfg. Co. 
 
 129 
 
 McDermott v. Board of Police, 
 
 etc 168 
 
 Madison Ave. Bap. Church v. 
 
 Bap. Church 1 34 
 
 Manuel v. Manuel 218 
 
 Mirshall?/. Andrew. 
 
 257.277.305 
 
 Mason et al. v. Muncaster et al. 
 
 92, no, 159 
 
 Mayor et al. of Baltimore v. 
 
 Howard 218 
 
 Miller v. Churcn 155 
 
 Montclair v. Ramsdell 218 
 
 Moore v. Rector, etc 197 
 
 Neilson's Appeal 201 
 
 Nelson v. Benson 166 
 
 O'Donovan v. Chatard 176 
 
 Oregon S. S. Co v. Otis 192 
 
 Palmer v. Stumph 218 
 
 Patterson v. Winn 23 
 
 Pendleton v. Bank of Ky. ..218 
 People v. Albany and Sus. R. R. 
 
 Co 121 
 
 v. Dfcvin 148 
 
 et al. v. Tuthill et al. 
 
 125,141, 143 
 
 ex rel. v. Chicago Live 
 
 Stock Exchange 168 
 
 Kenney v. Winans. 
 
 204,205, 308 
 
 Peck v. Conley. . 179, 221 
 
 Remington v. Rector.etc. 
 
 200,255 
 
 v. Peck 193 
 
 v. Phillips 148 
 
 —v. White 139 
 
 >. Whiteside 195, 202 
 
 People's Bank v. St. Anthony's 
 
 Church 161, 307 
 
 Pounders. Ash- 93, 171, 176 
 
 Prickett v. Wells 1 68, 1 7 1 
 
 P. R.R. Co. v. Canal Corn's. 154 
 
 Queen v. D'Oyly. 
 
 137, 190, 196,199,255 
 v. Millis 32, 39 
 
TABLE OF CASES. 
 
 349 
 
 Rector v. Vestry St. John's 
 
 Church, etc. 258, 269, 274 
 St. James' Church, etc. v. 
 
 Huntington, etc. ..178, 219 
 Redhead v. Wait etal. .257,304 
 
 Reg. v. Best 191 
 
 Rex v. Bellringer 194 
 
 v. Buller 194 
 
 v. Church Wardens of 
 
 St. Bartholomew's 205 
 
 v. Church Wardens of 
 
 St. Matthew's 205 
 
 v. Gaborian 205 
 
 v. Martin Rice 294 
 
 v. Miller 194,197 
 
 v. Morris 194, 197 
 
 v. Thornton 194, 197 
 
 Reynolds v. Monkton 293 
 
 Ritchings v. Cordingley. 
 
 257. 277, 304 
 Robertson v. Bullions et al. .1 54 
 
 Rogers, ex parte 195, 202 
 
 Runkel v. Winemiller 264 
 
 Sackett v. Sackett 23 
 
 St. George's-in-the-East, Case 
 
 of 268 
 
 St. George's, Wolverhampton, 
 
 Case of 268 
 
 St. Mary's Church, Case of. 
 
 195, 196, 202 
 
 St. Patrick's Church v. Gavelon. 
 
 161 
 
 St. Paul's Church v. Ford. . 164 
 
 St. Stephen's Church Cases. 
 
 151, 191, 205 
 Salem Mill Dam Corp. v. Ropes. 
 
 154 
 School Directors, ex parte. .191 
 Shannon et al. v. Frost et al.\j6 
 
 Shaw v. Beveridge 165 
 
 Sheldon v. Parish, etc 179 
 
 v. Vail 165 
 
 Smith v. Law 193 
 
 v. Moffat 1 54 
 
 Society et al. v. New Haven 
 
 etal 63, no 
 
 Sohier v. Trinity Church 
 
 93. 159 
 
 Stack v. O'Hara 93.176 
 
 Starkey v. Barton 302 
 
 State exrel. Dunlap v. Stewart 
 
 et al 13; 
 
 v. Kendall 206 
 
 Stavely v. Ullithorne 33 
 
 Stocks v. Booth 183, 263 
 
 Stoughton v. Reynolds 198 
 
 Taylor v. Griswold 1 67 
 
 v. Timson 293 
 
 Terrett et al. v. Taylor etal. 
 
 42, 62, 92, no, 183, 264 
 
 Thompson v. Weller 154 
 
 Town of Pawlet v. Clark et al.20 
 
 Underwood v. Waldron. ... 167 
 
 Union Colony v. Elliott 191 
 
 United Brethren, etc., 2/. Van 
 
 Dusen 161, 307 
 
 University of Maryland v 
 
 Williams 195 
 
 Vanness v. Packard 20 
 
 Vestry etal. v. Barksdale. . . .45 
 
 St. Luke's Church v. 
 
 Matthews 167 
 
 Walker v. Wainright 176 
 
 Watson v. Jones.93, 110,160.171 
 
 Wheaton v. Gates 165 
 
 White Lick Quaker Case.. . . 93 
 
 Williams v. Glenister 293 
 
 Wilson v. M'Math. 
 
 137. 197. 268, 274 
 Worrel v. First Pres. Church, 
 
 179 
 Wyndam v. Cole 270, 274 
 
 Youngs v. Ransom. .179,242, 260 
 
INDEX. 
 
INDEX. 
 
 Act of Convention of 1786, 99. 
 
 Sent to English Archbishops, 100. 
 Act of Parliament, 99. 
 Acts of Henry VIII., 28. 
 Address of the Clergy to the Archbishop of York, 59. 
 
 Convention of 1785 to the English Archbishops, 72. 
 
 Convention of 1786 to the English Archbishops, 74. 
 Reply of the Archbishops, 97. 
 Admission in the English Church, 225. 
 Alienation of real Church property, 158. 
 
 Bishop's consent when necessary, 159, 185, 204. 
 . Consent of Bishop and Standing Committee, 1 59. 
 
 Rector necessary, 182, 184. 
 
 Cannot be made in absence of Rector, 204. 
 
 When consent of members of the Parish necessary to, 1 50, 1 59. 
 
 Can only be made for Church purposes, 160. 
 Alterations in Book of Common Prayer, 71, 82. 
 American Church, Organization of, 65, 85. 
 Annual Parsh meetings. (See Parish meetings.) 
 Answer to Archbishop's letter, 98. 
 
 Antecedent Obligation of the American Church 92, 96, 103. 
 Ante- Reformation Law, Continuation of, 30. 
 Apostles' Creed, 74, 94. 
 Archbishop of Canterbury, Letter of, 99. 
 
 York, Address to, 59. 
 Archbishops of Canterbury and York, Address, to, 72, 74. 
 
 Reply of, 97. 
 Articles of Constitution as set forth by Convention of 1789, 77. 
 
 Of Religion, 88. 
 Assistant Minister, Rector to appoint, 285. 
 
 Vestry's power in appointment of, 285. 
 No right to be present at Vestry meetings, 286. 
 Athanasian Creed, 89. 
 
354 LA IV OF THE CHURCH. 
 
 Attendant, Definition of regular, 140. 
 Augustine, Arrival in Britain cf, 24. 
 
 Instructions of Pope Gregory to, 25. 
 
 B 
 
 Benefice, admission to a, 225. 
 Presentation to a, 226. 
 Institution into a, 226. 
 Induction into a, 227. 
 Bishop, the source of authority in his Diocese, 171, 184. 
 Diocesan jurisdiction in the, 118, 222. 
 Powers of a Rector descend from, 185. 
 His consent necessary to incorporation of a Church, 119. 
 
 When necessary to alienation of Church realty, 159, 
 
 185, 204. 
 When his duty to accept Letter Dimissory, 209, 211, 217. 
 When not required to accept it, 209, 216, 219. 
 To give Certificate of Transfer, 210. 
 To give notice of acceptance of Certificate, 210. 
 Minister cannot officiate as Rector without such Certificate, 210. 
 
 Cannot officiate in his Diocese without license of, 210. 
 His right to inquire into qualifications of a Minister, 211 
 
 213, 229. 
 To decline to transmit Certificate of Election of Rector 
 
 of record, 215, 222. 
 To inhibit Minister from officiating in his Diocese, 220. 
 His consent necessary to the election of a Rector, 169, 172, 
 
 177, 184, 207,213, 216, 219. 
 The ultimate arbiter in dissolution of rectorship, 242, 245. 
 His consent, when necessary, to placing ornaments in Church, 
 
 277. 
 Can alone act judicially in case of person repelled from the 
 Holy Communion, 282. 
 Bishop of London, Diocesan of Colonial Church, 47, 50, 61. 
 Bishops, House of, when organized, 79. 
 
 Synod of British, 25. 
 Book of Common Prayer, alterations in, 71. 
 
INDEX. 
 
 355 
 
 Book of Common Prayer, no material alterations from English, 82. 
 
 Preface of, 83, 92, 103. 
 
 Revision of, 80. 
 
 When set forth and established, 83, 
 Brittanic Church, 24. 
 Brockway Case, 219. 
 By-laws, Vestry may make, 167. 
 
 Call and Election of Rector, 168, 207. 
 Canon Law, Force of Foreign, 30, 33, 35. 
 When introduced into England, 32. 
 Of Church of England, 3f, 41, 94, 106, in. 
 
 A part of Common Law of the Colonists, 40. 
 Birthright of Colonists, 40. 
 Canon on Music, 180, 268. 
 Why enacted, 268. 
 Its history, 271. 
 Canon 18 of Title I. of the Digest considered, 211. 
 
 Intent of the Canon, 216. 
 Canons, Code of, adopted, 76, 80, 85. 
 
 Of 1603, 35, 94, 95, 163, 212. 289, 299, 300. 
 Construction and interpretation of, 181, 212, 216, 218. 
 Casting vote in case of a tie, 199 255. 
 Certificate of Change in Name 1 f Corporation, 151. 
 In Number of Vestiymen, 150, 188. 
 Of Election of Wardens and Vestrymen, 126, 148. 
 Of Delegates to Diocesan Convention, 149. 
 Of Rector, 208. 
 
 Form of, 208. 
 Of Incorporation of a Church, 126. 
 To be filed, 126. 
 How executed, 127. 
 What it should contain, 126, 128. 
 To be transcribed in Parish record book, 129. 
 Of Transfer of a Minister, 210. 
 Form of, 210. 
 
356 LA W OF THE CHURCH. 
 
 Certificate of Transfer of Communicants, 299. 
 Change in Number of Vestrymen, 150, 187. 
 Change of Name of Corporaiion, 151. 
 Choir, definition of, 272. 
 
 Under control of the Rector, 179, 182, 268, 275. 
 Choirmaster, when not a regular contributor, 144. 
 Church edifice in possession of Rector, 183, 236, 257. 
 Incorporation of. (See Incorporation of Churches.) 
 In the Colonies, date of, 33. 
 In Connecticut, 55, 59, 66. 
 Maryland, 45, 47, 49, 52, 66, 307. 
 Massachusetts, 56, 69. 
 New Jersey, 56, 60. 
 New York, 43, 53, 306. 
 Pennsylvania, 53, 68. 
 South Carolina, 44, 48, 53. 
 Virginia, 43, 52, 228. 
 Of England, Canon Law, when introduced into, 32. 
 
 Part of Colonial Common Law, 40. 
 Common Law of, 17, 22, 103. 
 
 Part cf Colonial Common Law, 17, 103. 
 Concordat of American Church with, 96, 105. 
 Discipline cf, retained by American Church, 89, 93, 
 
 96, 98, 101. 
 Encroachments of Roman Church on, 27. 
 Identity of Colonial Church with, 50, 55, 104, 108. 
 Church in the States with, 51, 57, 61, 64, 81, 86, 
 
 ico, 104. 
 American Church with, 86, 88, 104. 
 Induction Office of, -25, 227, 237, 239. 
 Law of, at time of emigration of Colonists, 35. 
 Laws in force in, 36. 
 Liturgy of, retained by American Church, 81, S7, 89, 
 
 94 
 
 (See also, Ecclesiastical Law of Church of Englaid.) 
 
 Church property cannot be alienated without consent of Rector, 
 
 182, 184, 256. 
 Cannot be alienated in his absence, 204. 
 
INDEX. 357 
 
 Church property, alienation of, only for Church purposes, 160, 166. 
 When Bishop's consent necessary, 159, 185, 204. 
 
 Standing Committee's consent necessary, 1 59. 
 Consent of Parish necessary, 150, 159. 
 Power of Vestry over the, 155, 157, 162. 
 Vestry to keep in good order the, 163. 
 Church Tribunals, when their authority recognized by Civil Courts, 
 
 176, 177, 221, 250. 
 Vestry have control of revenues of, 165. 
 Churchyard, in the possession of the Rector, 183, 256, 263. 
 Civil Courts, when they will interfere in Ecclesiastical matters, 
 
 176, 221, 250. 
 Clergyman, trial of a, 252. 
 Code of Canons adopted, 76, 80, 85. 
 Codes of Law in force in the American Church, 15. 
 Colonial Church, earliest date of, 33. 
 Commissaries to the, 47. 
 Diocesan of the, 47, 50, 61, 62. 
 Identity with Church of England of the, 50, 55, 104, 108. 
 
 American Church, 51, 58. 
 Induction in the, 224, 228. 
 Legislation of the, 43. 
 Colonies, Vestries in the, 306. 
 
 How modelled, 307. 
 Colonists, Law of the English Church at time of emigration of, 35. 
 English Common Law part of Common Law of, 17, 22, 103. 
 Statute Law part of Common Law of, 21. 
 Canon Law part of Common Law of, 40. 
 Subject to the laws of England, 19, 
 Commissaries to Colonial Church, 47. 
 
 Committee appointed to confer with Clergy of New England, 77. 
 Common Law, definition of, 21. 
 
 Of England, birthright of the Colonists, 19. 
 Part of the Colonial Law, 17, 22, 103. 
 What composed of, 21. 
 Ecclesiastical, 23, 36, 95, 104. 
 
 Part of Colonial Common Law, 22, 40, 103. 
 Common Prayer, alterations in Book of, 71. 
 
35* LA W OF THE CHURCH. 
 
 Common Prayer, Preface of Book of, 83, 92. 
 
 Revision of, 80. 
 
 Set forth and established, 83. 
 Common Seal, Vestry may have and use a, 1 56. 
 Communicants, Wardens to be, 126, 299. 
 
 When Wardens to give letter of transfer to, 299. 
 Communion. (See Holy Communion.) 
 
 Concordat of American Church with Church of England, 96, 105. 
 Connecticut, Church in, 55, 59, 66. 
 
 Consecration of Bishops Provoost, Seabury, and White, 74. 
 Constitution of American Church proposed, 72. 
 
 When adopted, 76, 97. 
 Constitutions, Legatine and Provincial, 27, 35. 
 Contributor, definition of a regular, 142. 
 Convention of 1784, 69. 
 
 1785. 70, 97- 
 
 1786, 73, 75, 98. 
 
 1789, 75- 
 Corporate capacity of Wardens and Vestrymen, 161. 
 Corporation, component parts of , 153. 
 When complete, 129. 
 Name, how changed, 151 
 
 Proceedings affecting title to be in, 159. 
 D 
 Delegates to Diocesan Conventions, 132. 
 How elected, 149. 
 To Special Conventions, 1 50. 
 Deputies to General Convention of 1789, powers of, 76. 
 Diocesan of Colonial Church, 47, 50, 61, 62. 
 Discipline defined, 93. 
 
 Of Church of England retained by American Church, 89, 93, 
 
 96, 98, 101. 
 Dissolution of rectorship, 241. 
 
 Divine service under exclusive control of the Rector, 264, 308. 
 Duke of York, laws of the, 43, 306. 
 
 E 
 Ecclesiastical Common Law, 23, 36, 95, 104. 
 
INDEX. 359 
 
 Ecclesiastical Common Law a part of Colonial Common Law, 22, 
 
 40, 103. 
 
 Ecclesiastical Law of England in 1607, 34, 36. 
 
 Of force in the American Church, 16, 36, 40, 45, 
 50, 58, 61, 81, 86, 89, 92, 95, 102, 105, 107, 
 no, 180, 212, 262, 263. 
 Modifications of, 36, in. 
 (See also Church of England ) 
 Election of Delegates to Diocesan Conventions, 132, 149. 
 Special Conventions, 150. 
 Wardens and Vestrymen, 125, 145, 300. 
 Notice of, 120, 131. 
 How conducted, 125, 133. 
 When by ballot, 125. 
 Qualifications of, 126, 145. 
 Qualifications of voters, 124, 139. 
 Certificate of election of, 126, 148. 
 When to be recorded, 126, 148. 
 Of Rector. (See Rector.) 
 Encroachments of Roman Church on Church of England, 27. 
 England, Church of. (See Church of England.) 
 
 Foreign Canon Law, 30, 33, 35. 
 
 Fundamental principles of Convention of 1784, 69, 71. 
 The Church, stated, 170. 
 
 General Convention of 1789, 79, 86, 88, 92, 228. 
 
 1792, 85, 8S, 92, 94. 
 
 1804, 228, 232. 
 
 1808, 94, 103, 233. 
 
 1814, 90, 96, 103, 235. 
 
 Power to enact Canon requiring Bishop's consent t* 
 election of a Rector, 178. 
 Gorham Case, 212. 
 Gregory's Reply to Augustine, 25. 
 Guilds under control cf Rector, 266. 
 
3 6o LA W OF THE CHURCH. 
 
 H 
 
 Henry VIII., Acts of, 28. 
 
 Holy Communion, Office of, altered, 83. 
 
 Right of Rector to repel from the, 279. 
 
 Rector to give notice to the Bishop, 280. 
 Not a judicial Act, 281, 283. 
 Can only repel for specified causes, 282. 
 In case of personal wrong, 284. 
 
 Identity with English Church of Colonial Church, 50, 55, 104, 108. 
 Of Church in the States, 51, 58, 61, 64, 81, 86, 104. 
 Of American Church, 86, 88, 104. 
 Illegal votes to be challenged, 125, 138. 
 If not challenged, to be received, 138. 
 When election vitiated by, 125. 
 Incorporation of Churches, 117. 
 Purpose of, 117. 
 Benefits of, 118. 
 Prerequisite to, 118. 
 Consent of Bishop necessary, 119. 
 
 Of Convention where required, 119, 
 Of Standing Committee, 119. 
 Mode of procedure, 119. 
 Notice to be g'ven, 120. 
 How given, 120. 
 Contents of notice, 120. 
 Place of meeting, 121. 
 Hour of meeting, 121. 
 Meeting to be held at hour named, 121. 
 Quorum of meeting, 121. 
 Officers of meeting, 122. 
 Presiding officer, 122. 
 
 To appoint tellers, 125. 
 To reject illegal votes if challenged, 125. 
 When election not vitiated by illegal votes, 125. 
 To declare result, 126. 
 
INDEX. 361 
 
 Incorporation of Churches. 
 
 Scope of meeting, 123. 
 Qualifications of voters, 124. 
 Conduct of meeting, 125. 
 Election by ballot, 125. 
 Polls, how long to remain open, 125. 
 Certificate of election to be made, 126. 
 What to contain, 126, 128. 
 How acknowledged, 127. 
 To be filed, 126. 
 Terms of officers elected, 129. 
 When complete, 129. 
 Induction. (See Office of Induction.) 
 Inheritance defined, 18. 
 
 Inhibition, right of Bishop to issue order of, 220. 
 Institution. (See Office of Institution.) 
 Integral parts of a Vestry, 153, 194 254. 
 
 Features when lust, 202. 
 Intent of American Church as to continuing force of English Ec- 
 clesiastical Law, 92, 96. 
 Interposition of civil tribunals in Ecclesiastical matters, 176, 221, 
 
 250. 
 
 J 
 Jennings' Case, 247. 
 
 Judges of Election, how appointed, 138. 
 Judicial authority in the Bishop, 171, 184. 
 
 System of the Church, 252. 
 Junior Warden, 301. 
 Jurisdiction in the Bishop, 118, 222. 
 
 K 
 
 Keys of the Church, Rector's right to the, 256, 304. 
 Wardens no right to the, 304. 
 
 Lands, alienation of. (See Alienation.) 
 Law, Ante- Reformation, continued after Reformation, 30. 
 A subject of inheritance, 19. 
 
362 LA W OF THE CHURCH. 
 
 Law, English Ecclesiastical. (See Ecclesiastical Law.) 
 
 Laws of the Duke of Yoi k, 43, 306. 
 
 Legatine constitutions, 27, 35. 
 
 Legislation, Colonial, 43. 
 
 Letter of Archbishop of Canterbury, 99. 
 
 Letters Dimissory, 209, 216. 
 
 Form of, 209. 
 Liturgy of Church of England retained by American Church, 81, 87. 
 
 89. 94- 
 London, Bishop of, Diocesan of Colonial Church, 47, 50, 61. 
 Lynd v. Menzies Case, 260. 
 
 M 
 
 Majority of votes necessary to elect, 148. 
 
 Of Vestrymen, what constitutes a, 197. 
 Mandamus, writ of, to compel Rector to call a Vestry meeting, 191. 
 To attend Vestry meeiing, 205. 
 
 To compel Wardens and Vestrymen to attend a Vestry 
 meeting, 203 308. 
 Marriage, English Canons on, 95. 
 Maryland, Church in, 45, 47, 49, 52, 66, 307. 
 Massachusetts, Church in, 56, 69. 
 Meetings of Parish. (See Parish meetings.) 
 
 Vestry. (See Vestry meetings.) 
 Minister, when a qualified Minister, 175, 211. 
 
 His nght to be transferred to another diocese only an Ecclesi- 
 astical right, 222. 
 Cannot officiate as Rector without certificate of transfer, 210. 
 Without license of Bishop, 210. 
 In a Parish without consent of Rector, 267. 
 Is accountable to the Ecclesiastical authority, 174. 
 Vestry cannot maintaia a deposed, 166. 
 Trial of, 252. 
 
 Election of, as Rector of a. (See Rector. ) 
 Modifications of English Ecclesiastical Law, 36, ill. 
 Music of the Church under exclusive control of the Rector, 267. 
 
 N 
 Name of Corporation, how changed, 151. 
 
INDEX. 363 
 
 Name of Induction changed to Institution, 233. 
 
 New Jersey, Church in, 56, 60. 
 
 New York, Church in, 43, 53, 306. 
 
 Nicene Creed, 74. 
 
 Notice of Annual Parish Meeting, 131. 
 
 What it must contain, 131. 
 How given, 132. 
 Object of, 132. 
 Meeting to incorporate a Church, 120. 
 What it must contain, 120. 
 How given, 120. 
 Special Parish meeting, 150, 186. 
 Vestry meetings, iqi. 
 How given, 191. 
 Object of, 193. 
 Time of, 191. 
 Number of Vestrymen, how changed, 187. 
 
 Resolution of Vestry to be submitted to Parish 
 meeting, 150, 188. 
 
 O 
 
 Oath of office of Wardens and Vestrymen, 147. 
 
 Object of notice of Parish and Vestry meetings, 132, 193. 
 
 Office of Induction in Church of England, 224, 227, 237, 239, 
 
 Colonial Church, 224, 228. 
 
 American Church, 229. 
 
 Its meaning and effect, 225, 227. 
 
 Intent of Church in setting it forth, 229. 
 
 Name changed to Institution, 233. 
 
 Intent of Church in change of name, 234. 
 Institution, 173, 184, 223. 
 
 Similar to English Office of Induction, 224, 237, 257. 
 
 Same as former Office of Induction, 233. 
 
 Consequences that follow from its use, 236. 
 
 Confers no new right on a Rector, 224, 240, 259. 
 
 Why not more generally used, 239. 
 Wardens and Vestrymen, term of, 129. 
 Officer, Presiding. (See Presiding Officer.) 
 
364 LA W OF THE CHURCH. 
 
 Officers of meeting of incorporation, 122. 
 
 Parish meetings, 122, 138. 
 Organ under control of the Rector, 274. 
 Organist, right of Rector to appoint, 270. 
 
 Vest'ies, rights in appointment of, 270. 
 
 Under control of the Rector, 267, 270. 
 Ornaments of the Church under control of Rector, 275. 
 
 When permanently placed, Church goods, 278. 
 
 The Bishop's power in the matter, 277. 
 
 The Vestry's power in the matter, 277. 
 
 Wardens have no power over the, 276. 
 
 Parish, annual meeting of, 131. 
 Notice of, 131. 
 Contents of, 131. 
 How given, 132. 
 Its object, 132. 
 Purpose of, 132. 
 Place of, 133. 
 When illegal, 131. 
 
 Questions that may be considered at, 133. 
 Quorum at, 134. 
 Presiding officer at, 135, 255. 
 
 To appoint tellers, 125, 138. 
 When to appoint judges of elections, 138. 
 When to reject illegal votes, 138. 
 The returning officer, 139. 
 Qualifications of voters at, 139. 
 Proceedings to be recorded, 139. 
 Qualifications of Wardens and Vestrymen, 126, 145. 
 Certificate of election, 148. 
 
 When to be recorded, 148. 
 Special meetings of, 149, 186. 
 Name, how changed, 151. 
 
 Meeting to incorporate. (See incorporation of Churches.) 
 Parishioners, consent to the alienation of Church realty, 150, 159. 
 Not cestuz's que it us/, 1 59. 
 
INDEX. 365 
 
 Parishioner's right to a seat in the Parish Church, 293. 
 Pennsylvania, the Church in, 53, 68. 
 Pews, title to, in corporation, 164. 
 
 Under control of the Vestry, 155, 164. 
 Pew holder has only a right of occupancy, 164. 
 May maintain action against intruder, 165. 
 Length of time rented, 164. 
 Deed necessary to pass title, 164. 
 Plurality of votes does not elect, 148. 
 Polls, how long to remain open, 125. 
 
 Powers of the Deputies to General Convention of 1789,75. 
 Rector. (See Rector.) 
 Vestry. (See Vestry.) 
 Wardens. (See Wardens.) 
 Prayer Book of Church of England, 81, 94. 
 
 Alterations of, by American Church, 71, 82. 
 Preface of, 83, 92, 103. 
 Revision of, 80. 
 Presiding Officer of Parish Meetings, the Rector, 135, 255. 
 To appoint tellers, 125, 138. 
 When to appoint judges of election, 138. 
 To decide as to qualifications of voters, 138, 255. 
 To reject illegal votes, 125, 138. 
 To declare result, 126. 
 The returning officer, 139. 
 To sign certificate, 149. 
 When a Warden may be, 138. 
 Vestry meetings. (See Vestry meetings.) 
 Principles of the Church of England, 171. 
 
 The Saxon Church, 26. 
 Property of the Church. (See Church property.) 
 Proposed Book, 71, 81, 97. 
 
 Proposition, Statement of an undeniable, 58, 104. 
 Provincial Constitutions, 27, 35. 
 Provoost, Consecration of Bishop, 74. 
 
 Q 
 
 Qualifications of Delegates to Diocesan Conventions, 149. 
 Voters, 124, 139. 
 
366 LAW OF THE CHURCH. 
 
 Qualifications of Voters, Vestry cannot alter, 167. 
 
 Vestrymen, 126, 145, 307. 
 
 Wardens, 126, 145,299. 
 Qualified Minister, What is a, 211, 213. 
 
 Right of Bishop to be satisfied that a Minister is a, 175, 
 
 211, 213, 219. 
 
 Voters eligible for office of Vestryman, 146. 
 Questions that may be considered at meeting of Incorporation, 123. 
 
 Annual Parish meeting, 133. 
 Quorum at meeting of Incorporation, 121. 
 Annual Parish meeting, 134. 
 Vestry meetings, 193, 202, 254. 
 
 Necessary for transaction of business, 161, 202. 
 Withdrawal of member cannot destroy, 198, 203. 
 
 R 
 
 Realty. (See Church property.) 
 Record Commission of 1821, 25. 
 Rector, Call and election of, 168, 207. 
 
 Vestry have the power to elect, 168, 207. 
 
 Not an exclusive power, 169 178, 207, 219. 
 To give notice of election to the Bishop, 208. 
 Notice to be recorded, 208. 
 Form of notice, 208. 
 When Bishop may decline to transmit notice for record, 215. 
 Call should be in writing, 179, 207. 
 
 When complete, 207. 
 Consent of Bishop necessary to make election and call com- 
 plete, 169, 177, 207, 213, 216, 219,221. 
 Letter Dimissory, 209. 
 Form of, 209. 
 
 Void if not presented in six months, 209. 
 Duty of Bishop to receive, 209. 
 
 Exception in case of rumors affecting character, 209. 
 Other exceptions, 211. 
 Canon relating thereto considered, 210. 
 Certificate of transfer to be given, 210. 
 
INDEX. 367 
 
 Certificate of Transfer of Rector, Form of, 210. 
 
 Cannot officiate as Rector until received, 210. 
 
 Right of transfer only an Ecclesiastical right, 222. 
 When date of canonical residence begins, 210. 
 Institution of, 223. 
 
 Its effect, 224, 236, 240. 
 
 Confers nonevv rights upon a, 224, 240, 259. 
 Receives his powers from the Bishop, 173, 184. 
 Called for l.fe, 179 240, 243. 
 
 Cannot resign without consent of Parish, 179, 236, 241, 245. 
 How dismissed, 179, 236, 241. 
 Vestry cannot dismiss, 179, 203, 240, 245. 
 
 Nor investigate charge-, 203. 
 
 Nor reduce his salary, 179, 203. 243. 
 B'shop may dismiss, 241. 
 
 Has a right to a hearing before dismissal, 245, 250. 
 Discussion of canons in re dissolution of Rectorship, 124. 
 An integral part of the Vestry, 153, 194, 254. 
 Has the right to call Parish and Vestry meetings, 190, 254. 
 
 Duty to call such meetings, 191, 254. 
 When he may be compelled to oil such meetings, 191. 
 
 Duty to attend, 205. 
 The presiding officer at all meetings, 122, 135, 197, 255. 
 Must be present to render meeting valid, 193, 196, 254. 
 
 When meeting legal without. 204. 
 Cannot destroy quorum of meeting by withdrawal, 198, 203. 
 
 Adjourn meeting on his own motion, 198. 
 His right to decide as to qualifications of voters, 255. 
 To appoint tellers, 125, 138. 
 
 Judges of election, 138. 
 The returning officer, 139. 
 Has a right to vote at Parish meetings, 255. 
 Vestry meetings, 255. 
 
 To give the casting vote in case of a tie, 199, 255. 
 To submit to the meeting all questions presented, 201. 
 
 Exceptions, 201. 
 May sue out writ of mandamus to compel a Vestryman to 
 attend Vestry meeting, 203. 308. 
 
368 LA W OF THE CHURCH. 
 
 Rector has exclusive control over spiritualities of a Parish, 
 
 i 55, 264. 
 
 Services of the Church, 264, 308. 
 
 Sunday-school, 266. 
 
 Guilds, etc., 266. 
 
 Music of the Church, 180, 267. 
 
 The organ, 267, 274. 
 
 The Church edifice, 162, 236, 238, 256, 258, 
 
 262, 304. 
 Has the right of freehold in realty of the Church, 183, 257. 
 To the keys of the Church buildings, 162, 256, 334. 
 Of control over all buildings used for Church purposes, 
 
 162, 163, 264, 304. 
 To forbid a Minister from officiating in his Parish, 
 
 267, 286. 
 To appoint organist and members of the Choir, 179, 270. 
 To determine as to character of Choir, 181, 274. 
 To control the ornaments of the Church, 275, 277. 
 To appoint assistant Minister, 285. 
 To repel from the Holy Communion, 279. 
 But must give notice to the Bishop, 280. 
 Not a judicial act, 281, 283. 
 Can only repel for specified causes, 282. 
 In case of personal wrong, 284. 
 Must give Wardens access to Church, 304. 
 Church property cannot be alienated without consent of, 182. 
 
 Nor in his absence, 204. 
 Has no power to incur debts binding on the Parish, 167. 
 No longer Rector if deposed, 176. 
 Duties of a, 286. 
 
 S 
 
 Salary of Rector cannot be reduced by the Vestry, 179, 203, 243. 
 
 A valuable property right, 179, 244. 
 Saxon Church, principles of, 26. 
 Seabury, Consecration of Bishop, 59, 74. 
 
 His assent to Constitution and Canons of 1789, 77. 
 Seal, Vestry may make and use a common, 156. 
 Select Vestry in the English Church, 306. 
 
INDEX. 369 
 
 Senior Warden, 301. 
 
 Sexton when not a regular contributor, 144. 
 Special Parish meeting, 149, 186. 
 Notice, how given, 150, 186. 
 
 What it must state, 151, 186. 
 How conducted, 151, 186. 
 S. P. G. in Foreign Parts, 46, 48. 
 South Carolina, the Church in, 44, 48, 53. 
 Spiritual affairs of a Parish under control of Rector, 155, 264. 
 Standing Committee, consent of, to alienation of Church realty, 
 
 159. 
 Consent necessary to incorporation of a Church, 118. 
 States, the Church of England in the, 51, 57, 64. 
 Identity of the Church in the, 57, 61, 86, 104. 
 Action of the Churches in the, 59, 64. 
 Statute Law of England part of Colonial Common Law, 17, 21, 
 
 40, 103. 
 Rule as to the interpretation of, 212, 218. 
 Subscriptions for religious purposes, Vestry may compel payment 
 
 of, 166. 
 Sunday schools under exclusive control of the Rector, 266. 
 Synod of British Bishops, 25. 
 
 T 
 
 Tellers of Election, to be appointed, 125, 138. 
 Terms of office of Wardens and Vestrymen, 129. 
 Time, polls to be kept open, 125. 
 Title to Church property in the Vestry, 157. 
 
 How impaired, 160. 
 Toleration Act, 44. 
 Transition period of the Church, 64. 
 Trial of a Minister, 252. 
 Trustees, Wardens and Vestrymen as, 119, 154, 237. 
 
 Must act in their corporate capacity, 161, 307. 
 
 No individual authority to bind corporation, 161, 307. 
 
 V 
 Vacancies in a Vestry, how created, 186. 
 How filled, 186. 
 
370 LA VV OF THE CHURCH. 
 
 Vestry, definition of, 153, 306. 
 Name, how derived, 306. 
 In the Colonies, 306. 
 
 American Church, 1 53. 
 
 On what modelled, 153, 306. 
 Composed of three integral parts, 153, 194, 202, 254. 
 Corporate Trustees, 154, 161. 
 Can only act in a corporate capacity, 161. 
 In meetings regularly called, i6r. 
 Their powers stated, 155. 
 
 Special powers, 1 54. 
 Title to Church property vested in the, 1 57. 
 Have custody of Church property under the Rector, 162. 
 Their power to alienate Church realty, 158, 182, 204. 
 To fix rental of pews, 164. 
 To enforce payment of subscriptions, 166. 
 To contract debts, 167. 
 To make and use a common seal, 1 56. 
 To make by-laws, 156, 167. 
 To erect Parish buildings, 155, 163. 
 To elect a Rector, 156, 168, 207. 
 
 Not an exclusive power, 169, 175, 178, 184, 207, 
 
 213, 216, 219. 
 To request institution of a Rector, 1 56, 
 In appointment of organist and choir, 179, 182. 270. 
 
 Of assistant Minister, 285. 
 Regarding the ornaments of the Church, 278. 
 Over the revenues of the Church, 165. 
 
 The disbursements of Church moneys, 166. 
 Have no control over spiritualities of the Parish, 155, 264, 269. 
 Music of the Church, 180, 269. 
 Organist and choir, 181, 270. 
 Rector integral part of, 153, 194, 202, 254. 
 Cannot remove a Rector, 179, 203, 240, 245. 
 Reduce Rector's salary, 179, 203, 243. 
 Investigate charges against a Rector, 203. 
 Maintain a deposed Minister, 166. 
 Dispose of Church realty in absence of Rector, 204. 
 
INDEX. 371 
 
 Vestry cannot divert Church property to other uses, 160, 166. 
 
 Alter qualifications of voters, 167. 
 Vacancies, how created, 186. 
 
 How filled, 149, 186, 
 Definition of a major part of, 303. 
 Duties of a, 156, 164. 
 
 To keep Chuich property in good order, 163. 
 To give notice to Bishop of election of a Rector, 208. 
 Vestry Meetings, how called, 190, 192. 
 Notice of, 191, 193. 
 How given, 192. 
 When legal without notice, 193. 
 Right of Rector to call, 190, 254. 
 To preside, 197, 255. 
 
 To vote and give the casting vote, 199, 255. 
 No right to adjourn meeting, 198. 
 When Wardens may call a, 190, 254, 302. 
 
 Vestrymen mpy call a, 190, 254. 
 Quorum at, 193. 
 
 Necessary for transaction of business, 202. 
 Presence of Rector necessary, 193, 196, 254. 
 When may be compelled, 205. 
 When legal without Rector, 204. 
 Majority of Vestrymen necessary, 197, 202. 
 Duty of president to submit questions presented, 201. 
 Of members to attend, 203, 308. 
 Mandamus will lie to compel attendance, 203, 308. 
 Conduct of business at, 202. 
 Vestrymen, election of, how conducted, 125, 132. 
 Qualifications of, 126, 146, 307. 
 Certificate of election of, 148. 
 Oath of office, where required, 147. 
 Terms of office of, 1 29. 
 May call a Vestry meeting, when, 190, 254. 
 When presiding officer at Parish meetings, 138. 
 Have no individual powers, 16 1, 307. 
 Excep'ion, 307. 
 No control over services of the Church, 265, 308. 
 
372 LA W OF THE CHURCH. 
 
 Vestrymen cannot resign without consent of Vestry, 186. 
 
 Cannot destroy quorum at meeting by withdrawal, 198, 203. 
 Number, how changed, 150, 187. 
 
 Certificate of change, to be made, 188. 
 To be filed, 188. 
 May be compelled to attend Vestry meetings, 203, 308. 
 Duties of, 308. 
 Virginia, the Church in, 43, 52, 228. 
 Vote, to be received unless challenged, 138. 
 If illegal, will not vitiate election, when, 138. 
 Majority necessary to elect, 148. 
 Voters, qualifications of, 124, 139, 144. 
 Regular attendants, 140. 
 Contributors, 142. 
 W 
 
 Wardens in the Church of England, 289. 
 Office of ancient date, 290. 
 Duties in Church of England, 291. 
 
 Same in American Church, 295, 297. 
 Qualifications of, 126, 145, 299. 
 How appointed or elected, 133, 146, 299. 
 Senior and Junior, 301. 
 Terms of office, 1 29. 
 Certificate of election, 148. 
 
 Filing of, 148. 
 When Vestry meetings may be called by, 190, 254, 302. 
 One must be present to constitute legal Vestry meeting, 
 
 194. 3°3- 
 Duty to attend Vestry meetings, 203. 
 May be compelled to attend, 203, 308. 
 Cannot destroy quorum by withdrawal, 199. 
 
 Resign without consent of Vestry, 186. 
 Have custody of the Church under the Rector, 256, 304. 
 
 No right to the keys of the Church, 257, 304. 
 
 No control over the services of the Church, 265. 
 Authority subordinate to the Rector's, 162. 
 To give Certificate to communicants where no Rector, 299. 
 
INDEX. 373 
 
 Wardens to collect the alms of the congregation, 299. 
 
 To give notice to Bishop of election of Rector, 299. 
 Form of notice, 208. 
 
 Must act together, 302. 
 
 Duties of, 297. 
 White, consecration of Bishop, 74. 
 
 York, address to the Archbishop of, 59. 
 Laws of the Duke of, 43, 306. 
 
 And Canterbury, Act of Convention of 1786 sent to the Arch- 
 bishops of, 100. 
 
 Address sent by Convention of 1785 to, 72. 
 
 Of 1786 to, 73. 
 Reply thereto by the Archbishops of, 97. 
 
INDEX TO APPENDICES. 
 
 Form of Notice of meeting to incorporate a Church 321 
 
 " Notice of annual election 323 
 
 " Certificate of election of Wardens and Vestrymen 324 
 
 " Entry of election in Book of Minutes 324 
 
 " Certificate of Lay Deputies to Diocesan Conventions. 326 
 " Petition to Bishop and Standing Committee for per- 
 mission to alienate real Church property 327 
 
 " Application to the Bishop for consent to establish a 
 
 Mission 339 
 
 " Application to the Bishop for consent to organize a 
 
 new Parish 330 
 
 " Consent of Bishop and Standing Committee to 
 
 alienation of Church property 331 
 
 " Notice of Organization 331 
 
 " Notice of intention to become a Postulant 333 
 
 " Postulant's application to the Standing Committee for 
 
 recommendation as a Candidate for Holy Orders. 334 
 
 " Certificate of Minister and Vestry 334 
 
 " Certificate to be laid before Standing Committee if the 
 
 applicant be a Minister of another Christian body 336 
 " Testimonial of recommendation by the Standing 
 
 Committee 336 
 
 " Candidate's application to the Standing Committee 
 for recommendation to the Bishop for Ordination 
 
 to the Sacred Order of Deacons 337 
 
 " Certificate of a Presbyter 337 
 
 " Certificate of Minister and Vestry 337 
 
 " Testimonial of the Standing Committee (Deacon's 
 
 Orders) 339 
 
 " Candidate's application for Ordination to the Priest- 
 hood 339 
 
 " Certificate of Minister and Vestry (Priest's Orders). .. 340 
 " Testimonial of the Standing Committee (Priest's 
 
 Orders) 341 
 
 " Notice to the Bishop of election of a Rector or Assist- 
 ant Minister 343 
 
 " Letter Dimissory 343 
 
 " Certificate of Transfer 343 
 
 Forms for Commendatory Letters 344 
 
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