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TRIAL 
 
 OP THE 
 
 Rev. CHARLES EDWARD CHENEY, 
 
 RECTOR OF CHRIST CHURCH, CHICAGO, 
 
 BEFORE AN 
 
 ecclesiastical court, 
 Convened by the Bishop of Illinois, 
 
 TOGETHER WITH THE PROCEEDINGS IN THE 
 
 SUPERIOR COURT OF CHICAGO, 
 
 AND THE 
 
 OPIIIOI OF HON. JOHN A. JAMESON, 
 
 SUSTAINING THE INJUNCTION GRANTED AGAINST 
 THE ECCLESIASTICAL TRIBUNAL. 
 
 CHICAGO, ILL.: 
 18 69. " 
 
DEACCESSIONED BY 
 CHFCAGO HISTORICAL SOCIETY 
 
 PRINTED C"^i • F.CTIONS 
 
 ADVERTISEMENT. 
 
 The following is a synopsis of the proceedings in the case of Rev. Charles E. 
 Cheney, before the Ecclesiastical tribunal and in the Superior Court of Chicago. 
 
 The pleadings in the Ecclesiastical Court are given in full, as also the original 
 bill of complaint filed on behalf of Mr. Cheney, the answer thereto, and the 
 affidavit of Bishop Whitehouse filed with the answer, and the opinion of Judge 
 Jameson, delivered on the preliminary motion to dissolve the injunction. . 
 
 The record was so voluminous that it was found impossible to give it entire. 
 
 The case in the civil court, it is understood, will be carried to the Supreme Court, 
 and the taking of the evidence therein has not up to this date been completed. 
 
 Chicago, September 11th, 1869. 
 
T R I ^ L 
 
 Rev. Charles Edward Cheney, 
 
 Chapel of the Cathedral op Saints Peter and Favl, ) 
 
 Chicago, July 21, 1369, 10 o'clock A. M. f 
 
 Present : Rev. Samuel Chase, D.D., of Jubilee College, Presiding. 
 
 Rev. Henry N. Pierce, D.D., of St. Paul's Church, Springfield. 
 Rev. John Benson, of St. John's Church, Peoria. 
 Rev. Thomas N. Benedict, St. Luke's Church, 'Wyoming. 
 Rev. A. W. Sntder, of Calvary Church, Chicago. 
 
 Rev. George F. Cushman, D.D., ) 
 
 Rev. Richard F. Sweet, B.D., [- Prescntors. 
 
 Hon. Lucius B. Otis, J 
 
 Hon. L. B. Otis, 
 
 Acting as Proctor for the Prosecution. 
 
 The Respondent, Rev. Charles E.Cheney, accompanied by Meville VV. 
 Fuller, George W. Thompson and M. Byron Rich, Esquires, his 
 Proctors and Advocates. 
 
 The Chapel was filled with a large audience, and the following clergy were present as 
 spectators : 
 
 The Bishop, Riirht Rev. H. J. Whitehouse, D.D. ; Rev. Dr. Street, Rector of St. 
 Alban's Church, Ottawa, Canada West; Rev. Wm. J. Magill, Rector of St. Mark's 
 Church, Mvstic Bridire, Conn.; Rev. Frank M. Gkegg, Rector of St. Paul's (urch, 
 Laporte, Ind. ; Rev. Dr. Hume, St. Peter's Cliurch, Redwood, Cal. ; Rev. Dudley 
 Chase, California, Chaplain U. S. Army, and pon of the late Bi-shop <if Illinois ; Rev. 
 Dean Cob, Cairo, 111. ; Rev. Dr. Judd, Allegan, Mich. ; Rev. Mr. Thayer, Louisville, 
 Kv. ; Rev. O. 11. Woodfokd, Plymouth. Wis. ; Rev. Dr. Rylance St. James' Church, 
 Cliieaco ; Rev. Dr. Cooper, Belvidere, 111. ; Rev. Charles P. Dorset, 8t. Ste|)lu'n's 
 Church, Chicago ; Rev. Mr. McNermera, LaCrosse. Wis. ; RfV. Mr. Freeman, Lyons, 
 Iowa ; Rev. Mr. Brooks, Kenosha, Wis. ; Rev. John W. Birckmore, Flint, Mich. ; 
 Rev. J. W. OsBORN, Bement, 111. ; Rev. John Harris Knowles, Canon Catlu-dral, 
 Chicago; Rev. George J. Magill, Canon Cathedral, Chicago; Rev. Dr. Jackson, 
 Church of our Saviour, Chicago ; Rev. Mr. Wilkinson, St. James' Church, Milwaukee ; 
 Rev. Mr. Wallace, Chaplain United States Navy. 
 
 ministers of other denominations. 
 
 Rev. Dr. Hatfield, Centenarv M. E. Church, Chicago ; Rev. Dr. Taylor, Union Park 
 Baptist Church, Chicago ; Rev. Mr. Wilkins, Old Sehool Presbyterian, Waukegaa, 111. 
 
4 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 The Pkesidixg Officer— This is an Ecclesiastical Court, assembled under Canon 20 of 
 the Diocese of Illinois, for the trial of the Rev. Charles E. Cheney, under sundry charj,'e8 
 made a^^ainst him in the presentment. I may remark, in this connection, and at this 
 time, that it is usual that such proceedings should be opened by prayer, but for the 
 present time the usual prayers of the Cathedral will be accepted instead, and which will 
 take place on to-day, as well as hereafter, at 9 o'clock A. M., and at 2 P. M. 
 
 Dr. Chase then designated the area in front of the Court as the place prepared for 
 spectators, and requested them to enter by the front door of the Cathedral ; the area 
 at the right was for the clergy, and friends, and the left for the convenience of the 
 reporters for the press. He then said : 
 
 In the organization of a Court of this kind, I suppose the first step in the proceedings 
 ■will be the appointment of a Secretary. I appoint that officer within the Court itself, 
 and name the Rev. Mr. Snyder, who will act as Secretary of the Court. 
 
 Does the respondent design to be represented by counsel ? 
 
 Rev. Mr. Cheney— My Proctors and Advocates are Hon. Melville W. Fuller, 
 George W. Thompson and M. Byron Rich, Esquires. 
 
 The Presiding Officer said as certain qualifications were necessary for the counsel 
 named to act in the capacity indicated, he would ask if the several persons named 
 possessed these qualifications, namely : Were they communicants in the Protestant 
 Episcopal Church, and had they been such for the past two years ? 
 
 Mr. Fuller — That is the fact as to myself, and undoubtedly a* to my associates. 
 
 Mr. Thompson — We have our credentials here. 
 
 Judge Otis — I appear in perhaps a double relation, as one of the presentors and as 
 proctor for the presentors. I understand the court to be organized ; shall I proceed? 
 
 The Presiding Officer — You may proceed, sir. 
 
 Judge Otis— May it please the Reverend Court — 
 
 Mr. Fuller— Mr. President : If the learned proctor will allow me, I had supposed 
 the course pursued in trials of this character was lor the presentors in the first instance 
 to present the commission under which they claim to have acted, and the presentment 
 which they have found. 
 
 Judge Otis — I was simply anticipated by Mr. Fuller. We appear here in the dis- 
 charge of an official duty imposed upon us, in some sense, by the whole church. In the 
 discharge of this official duty, we shall try to do it divested of everything like passion 
 or prejudice. We have lived long enough as men, and have had experience enough to 
 believe we can appear here as Christian gentlemen, and discharge our official duty 
 under the laws of the Church. This Court is organized under the Canons of the Church 
 to enforce discipline. Discipline, or an enforcement of Ecclesiastical law, is a necessity 
 in every Church, since no Church can exist Mithout it. I arise simply to announce 
 that we shall try to discharge our official duty divested of any other consideration 
 presented to us. 
 
 Judge Otis then read the presentment, which is as follows : 
 
 Presentment.- Tb <7ie Jtiriht Reverend, the BUhop of I1Unoi<< : — The undersigned, a 
 commission appointed by the Ecclesiastical authority of the Diocese of Illinois, under 
 the provisions of Canon 'XX. of said Diocese, to examine tlv case of the Rev. Ch.vrles 
 E. Cheney, a Presbyter of said Diocese, and Rector of Christ Church, in the city of 
 Chicago, and Diocese of Illinois, who is under the imputation of having been guilty of 
 offenses and misconduct for which he is liable to be tried, having duly considered the 
 evidence produced hefore us, and examined tlie case, and there being in our opinion 
 sufficient grounds for presentment, and, acting under and according to the provisions of 
 said Canon, do hereby present tlie said Rev. Charles E. Cheney' to you for trial, upon 
 the following charges and specifications : 
 
 Charge I. Violation of article 8 of the constitution of the Protestant Episcopal 
 Church, which provides, in substance, tliat a Book of Common Prayer, administration 
 of the Sacraments, and other rites and ceremonies of the Church, when establisiied by 
 the General Convention, shall be used in the Protestant Episcopal Church, in those 
 Dioceses which shall have adopted said constitution. No alteration shall be made in 
 
TRIAL OF REV. CHARLES EDWARD CHENEY. O 
 
 the Book of Common Prayer, or otlici- offices of the Cluii-ch, unlesp the same shall be 
 proposed in one General Convention, and by a rei^olve thereof m:ide known to the 
 Convention of every Dioeese, and adopted al the subsequent General Convention. And 
 it is averred, that the General Convention of said Church has established and set forth a 
 Book of Common Prayer, Administration of the Sacramenls, and other rites and cere- 
 monies of the Church, to wit., in the year A. D., 1789 ; and it is also averred that the 
 Diocese of Illinois, has acceded to and adopted the said constitution, to wit., more than 
 thirty years prior to this date. 
 
 Specification 1 — In this, tluit the said Rev. Charles E. Chenby, a Presbyter of the 
 Diocese of Illinois, and Rector of Christ Chnrch, in the city of Chicago, in said Diocese, 
 at divers times during the two years la.»t past, and while publicly officiating in cou- 
 ductin<>- religious services in said church, did intentionally make alterations m the use 
 of the Book of Conmiou Prayer and ollkes therein set forth, contrary to the law and 
 settled order of this Church. 
 
 Speciflcntion 2— In tliis, that the said Rev. Charles E. Cheney, a Presbyter of the 
 Diocese of Illinois, and Rector of Christ Church, in the city of ChicaL;o, in said Diocese, 
 at divers times during the two years last past, in the parish of Christ Church, Chicago, 
 in the administratiim of public baptism to infants, did intentionally omit to use the word 
 "regeneration," and the word " regenerate," wherever either occurred in the office set 
 forth for that purpose in the Book of Common Prayer, Administration of the Sacra- 
 ments, and other rites and ceremonies of this Church. 
 
 Specification 3— In this, that the said Rev. Charles E. Chexey, a Presbyter of the 
 Diocese of Illinois, and Rector of Christ Church, in the city of Chicago, in said Diocese, 
 at divers times during the two years last past, in the ministration of iiaplisni to infants, 
 in said church, did intentionally neglect and omit to use the office set forth and 
 established by this Church, in the Book of Common Prayer, in manner and form as the 
 said office is set forth and established in said Book ; but, on the contrary, did omit 
 the word " regenerate" therefrom, in one or more of the places where it occurs in said 
 office. 
 
 Charge ir. Violation of his engagement to conform to the doctrines and worship 
 of the Protestant Episcopal Church, in the United States, contained in the declaration 
 which was subscribed by liim before, and as an absolute condition preliminary to, his 
 ordination as a minister in said Church, as prescribed and set forth in article 7 of the 
 constitution adopted in General Convention of said Church, and Avhich declaration is as 
 follows: " I do believe tlie Holy Seriptu'-es of the Old and New TestamenL to he the 
 word of God, and to contain all things necessary to salvation ; and I do solemnly engage 
 to conform to the doctrines and worship of the Protestant Episcopal Church in the 
 United States." 
 
 Specification 1 — In this, that the said Rev. Charles E. Cheney, a Presbyter of the 
 Diocese of Illinois, and Rector of Christ Church, in the city of Chicago, in said DioccsC, 
 at divers times during the two years last past,, and while officiating as a minister in said 
 Church, did intentionally make material alterations and omissions in the use of the 
 Book of Common Prayer, and offices therein set forth, in violation of his solemn 
 engagement to conform to the doctrines and worship of the Protestant Episcopal 
 Church in the United States. 
 
 Specification 2 — In this, that the said Rev. Charles E. Cheney, a Presbyter of th» 
 Diocese of Illinois, and rector of Christ Church, in the city of Chicago, in said Diocese, 
 at divers times during the six months last past, at the usual religious services held at 
 said Church, for the ministration of public baptism of infants, according to the office or 
 order for the same, as set forih in the Book of Common Prayer, did purposely omit to 
 read, say, or use the word " regeneration" and the word "regenerate," wherever either 
 of said words occurred in said office or order, in violation of his solemn engagement to 
 conform to the doctrines and worship of the Protestant Episcopal Church in the United 
 States. 
 
 Specification 3 — In this, that the said Rev. Charles E. Cheney, a Presbyter of the 
 Dioeese of Illinois, and liector of Christ Church, in the city of Chicago, in said Diocese, 
 at divers times during the six months last past, while in the discharge of his official 
 duties in the parish of Christ Church, aforesaid, in the administration of the Sacrament 
 of baptism to infants, did intentionally omit to use the word "regenerate" in one or 
 more of the places where said word occurs in the office set forth for that purposein the 
 Book of Common Prayer ; all of which is an unauthorized omission, and a violation of 
 his solemn engagement to conform to the doctrines and worship of this Church. 
 
 Charge III. Violation of the solemn promise and vow made by him at his ordination, 
 ■which was in substance as follows ; 
 
 Question by the BL'iJiop—"' ViiW j'ou then, give your faithful diligence, always so to 
 minister the doctrines and sacraments, and the discipline of Christ as the Lord hath 
 commanded, and as this Church hath received the same according to the commandmenta 
 
6 
 
 TRIAL OP REV. CHARLES EDWARD CHENEY. 
 
 of God, so that yoii may tench the people committed to yoitr care and charge with all 
 dilligence to kccj-i and ohscrve the same)"' 
 
 Anxwcr — " 1 will do so by tlie help of tlie Lord." 
 
 Specification 1— In this, that the Rev, Charles E. Cheney, a presbyter of the diocese of 
 Illinois and rector of Christ cliurch, in the city of Chicago, in said diocese, at divers times 
 during 'the 12 months last past, and while officiating in public religious services in said 
 church, did purposely make material alterations and omissions in such services as set 
 forth and established by this church in the book commonly called " The Book of Com- 
 mon Prayer," and in violation of the solemn ordination vow, that he would minister the 
 doctrine, sacraments, and discipline as this church hath received the same. 
 
 Specification 3— In this, that the Rev. Charles E. Cheney, a presbyter of the diocese of 
 Illinois, and rector of Christ church, in the city of Chicago, in said diocese, at divers 
 times during the two years last past, and while in the discharge of his official duties as 
 such rector in said chin-ch, did intentionally administer the sacrament of baptisjn, in the 
 case of infants, without using the word " regenerate," and the word "regeneration," 
 as said words occur in the otlice set forth, and established by this church for " the min- 
 istration of public baptism of infants," all of which is in violation of his solemn ordina- 
 tion vow, that he would minister the sacranlents as this church hath received the same, 
 and teach the people committed to his care and charge to keep and observe the sanle. 
 
 Specification 3 — In this, that the Rev. Charles E. Cheney, a presbyter of the diocese of 
 Illinois, and rector of Christ chUrch, in the city of Chicago, in said diocese, at divers 
 times during tlie two years last past, in the church building belohging to said parish, 
 did, in the ministration of baptism to infants, designedly omit to Use the word "regen- 
 erate " in one or more of the places where said word occurs in the office set forth by 
 this church to be used on such occasions; all of which is in violation of his solemn ordi- 
 nation vow and promise that he would with all diligence teach the people committed 
 to his cure and charge the doctrines, sacraments and discipline of Christ as this church 
 hath received the saine. 
 
 Dated at the city of Chicago, the 31st day of June, A. D., 1869. 
 GEORGE F. CUSHMAN, D. D., 
 
 Rector of the Church of the Redeemer, Princeton, 
 RICHARD F. SWEET, B, D., 
 
 Rector of the Church of the Epiphany Chicago. 
 L. B. OTIS. 
 
 ARRAIGNMENT. 
 
 After reading the presentment, Judge Otis said : 
 
 I now ask that the accused be requested to produce his answer. 
 
 AUTHORITY WANTED. 
 
 Mr. THOMPSON-=-Before going further I would ask the learned Counsel if he has the 
 commission or authority under which the presentors act. 
 
 After a little delay on the part of Judge Otis, Mr. Thompson asked : 
 
 Does Judge Otis decline to furnish the authority ? 
 
 Judge Oris — No, sir ; I was only looking for it. We arc asked, I understand, to read 
 our appointment— -is that so, Mr. Thompson ? 
 
 Mr. TiiOMi'SON— Yes, sir ; we would like to have it preseiited. 
 
 THE COMMISSION. 
 Judge Otis then read as follows : 
 To the Rev. George F. Cushman, D. D., rector of the Church of the Redeemer, Prince- 
 ton ; Rev. Kiehard F. Sweet, B. D., rector of the Church of the Epiphany, Chicago, 
 and Hon. L. B. Otis, of Chicago, a commission appointed by the ecclesiastical author- 
 ity of Illinois, and under the provisions of canon 20 of said diocese, in relation to 
 charges against Charles E. Cheney, a rector of Christ Church Chicago, the bishop 
 of Illinois, greeting : 
 
 Having been credibly informeil that the Rev. Charles E. Cheney, rector of Christ 
 church, in the city of Cliicagi), had in substance stated that he coiUd not conscientiously 
 use the otlicc in the Book uf Common Prayer for the administration of public baptism 
 to infants, and that, in consequence, and at divers times, he habitually had altered, by 
 omiasion or otherwise, that service in the public administi*ation of baptism to infants, 
 and especially in omitting the word " regenerate," or the word " regeneration," occur- 
 ring In the said service, and that he assumed the riijht and privileirc of thus altering 
 the prescribed form of this sacrament, I called upon" the Rev. Mr. Cheney at his resi- 
 
TRIAL OP REV. CHARLES EDWARD CHENEV. i 
 
 dcnee, on Monday, May 31, last past, in the afternoon, and, findinix him at homo, had 
 with liim a full convi-rsation on the whole subject. On my way to tliis interview, I 
 called on the Rev. Edward Sullivan, M. A., rector of Trinity church, whom I knew to 
 be a friend of Rev. Mr. Cheney, to ask him (Mr. S.) to accompany me and to be present 
 during the intended interview. Rev. Mr. Sullivan was not at home, however, so that 
 the interview was private to Mr. Cheney and myself. 
 
 In the conversation Avhich thus took place in the library of the parsonajre, the Rev. 
 Charles E. Cheney, aforesaid, declared to me that the statement, which I repeated in 
 substance, as having been made to me, was the fact, so far as it related to his (Mr. Che- 
 ney's) acts, feelings, and jDurposes : that he could not conscientiously use the oHlce for 
 the public baptism of infants as set forth in the Book of Common Prayer by the ehin-ch ; 
 that he habitually made changes in it to adapt it to his own conscientious scruples, and 
 the appreliended injurious construction of portions of said service by his congregation ; 
 that he omitted therefrom, and especially the words " regenerate " and '* regeneration," 
 wherever either occurred, and that he should continue to do so. 
 
 During a protracted interview, I made full effort, according to my ability, by explana- 
 tion, argument, and appeal, to remove his scruples and to induce him to conform in the 
 future to the worship of the church and the administration of the sacrament to which 
 lie, on ordination, and as a priest in this church, had solemnly and distinctly pronounc- 
 ed conformity. 
 
 I set forth to him, as a godly admonition in my relation to him as a bishop, his 
 bounden duty of obedience to authority, and warned him of the painful consequences of 
 discipline which must follow ; but Mr. Cheney continued steadily in the same position 
 — that he could not and would not use the services in question as prescribed. 
 
 At the close it was agreed that Mr. Cheney should take a week — a suggestion coming 
 from myself,- and the limit of time being named by Mr. Cheney himself— for a deliberate 
 consideration of the matter, with the assurance from me that I should feel it my Imper- 
 ative duty to take measures for his presentment and trial for thus violating his ordina- 
 tion vows and altering the prescribed services unless he should withdraw the determin- 
 ation he expressed, and give me sufficient assurance that he would hereafter conform to 
 the appointed ritual of the church. 
 
 At the expiration of the time, and on or about Thursday, June 10, I received from 
 Mr. Cheney a note, of which the following is a correct copy ! 
 
 "Christ Church, Charles E. Cheney, Rector, June 10, 1869. — Reverend and Dcat' Sir : 
 I regret that circumstances compelled me to delay, for a few hours, the answer which I 
 promised to send you in one week from our conversation on Monday, the 31st ultimo. 
 After most serious and prayerful deliberation, I can only say that I have been able to 
 arrive at no other conclusion than that I expressed to you. 
 
 Very truly yours, 
 
 Charles Edward Cheney. 
 " To Rt. Rev. Henry J. Whitehouse," 
 
 This note refers expressly to the decision received after the deliberation expressed in 
 the conversation alluded to above, and it must be taken, therefore, to admit a change 
 or alteration of the office for infant baptism, and an omission from the prescribed form, 
 especially of the words " regenerate " and '' regeneration," and the resolution to con- 
 tinue the same alterations and omissions all j^tii'soual appeal and official admonition 
 from myself to the contrary notwithstanding. I, therefore, have reason to believe that 
 the said Kev, Charles E. Cheney, rector of Christ church, Chicago, is uncVcr imputation 
 of being guilty of offences and misconduct for which he is liable to be tried, and that 
 the interests "of the church require an investigation. 
 
 Therefore, in obedience to the provisions of canon 20, of the diocese of Illinois, I do 
 hereby appoint you as trusty and well-beloved presbyters and laymen of my jurisdic- 
 tion, George F. Cushman, D. D., rector of the Church of the Redeemer, Princeton, Rev. 
 Richard F^ S-.veet, B. D., rector of the church of the Epiphany, Chicago, and Hon. Lucius 
 B. Otis, of Chicago, or a majority of the same, to examine the case, and if, in your opin- 
 ion, there be sufficient grounds for a presentment, you shall present the said clergyman 
 said Rev. Charles E. Cheney to me, the bishop, that I may proceed to order a trial ac- 
 cording to canonical provisions therefor. 
 
 Given under my hand and Episcopal seal, this 12th day of June, A. D., 1869, and the 
 eighteenth of my consecration. 
 
 Henry J. Whitehouse, Bishop of Illinois. 
 
 Mr. Thompson — Mr. President, as the paper which has just been presented is very 
 intimately connected with questions with reference to the jurisdiction under which pro- 
 ceedings here are instituted, we shall have some exceptions and olyections to make con- 
 nected Avith it. Inasmuch, as this is the first time we have seen it, we would like to 
 
8 TRIAL OP REV. CHARLES EDWARD CHENEY. 
 
 look at it and consult some over it. But I Will present auother question now, and in the 
 meantime we can look at the i)aper. 
 
 We would like to know if all the eight presbyters named in the citation are present 
 here. 
 
 The Presidext— That is a question the court are unable to answer. 
 
 Mr. TnoMPSON^Will counsel answer ? 
 
 Judge Otis— I see five here. I do not know all of them. I know of no law requiring 
 them to attend, and I do not know that they are here. 
 
 Mr. Thompson— As intimated by the judge in his opening remarks, we would like to 
 have this trial conducted with propriety and fairness. And we would like the right to 
 examine these gentlemen with reference to their qualifications to sit as assessors in this 
 trial. Would the gentlemen grant us that privilege? I ask for that privilege. 
 
 The Prbsidsnt— I understand the objection, as it is presented, touches certain facts 
 which lie outside of the canon entirely. Therefore, it would be denied. As to objec- 
 tions which come within the canon, of course such objections would be received and 
 entertained by the court. Any that lie outside of the purview of the canon — or the 
 strict construction of the canon — of course woiild be declined by the court. As I un- 
 derstand the objections, as presented somewhat loosely by the gentleman, they are over- 
 ruled. 
 
 Mr. FCLLEK — I understand that my associate has presented no objections at all. 
 
 Mr. Thompson— It is a mere question. 
 
 Mr. FuLLEK — He asked the president, or counsel through him, one or both of them, 
 to state whether the eight persons named in the citation were present with a view of 
 being examined, or whether the five presbyters, who, it is admitted are present, were 
 willing to be examined, or contemplate being examined touching their competency to 
 eit as assessors in the case, inasmuch as I understand from the intimation of the 
 court, the position is taken that the eight presbyters need not be present, it is a conces- 
 sion that they are not liere. We do not see them here. They are not officially here. 
 Since also what has fallen from the presiding officer makes it apparent that the examin- 
 ation of tlie members of the court is denied, I will file a protest and objection, or hand 
 it to the coiu-t to be filed, and would like to be heard with reference to the matter. 
 (Here the paper w"as handed to the court.) I have a copy here which I will read, as a 
 matter of convenience. It is a matter of the highest moment. It is not a question 
 that I x)resent witli any desire to reflect upon tlie gentlemen who are present, at all. It 
 is of the utmost importance to tlie accused that the tribunal sliould be impartial, and 
 not only so, but that he should be satisfied of tlieir impartiality. And it is of tlie highest 
 importance to the church, of course, that no impression or conviction should be pro- 
 duced that there is any want of impartiality. And from information reaching our 
 client, respecting one of the five who is present, and who assumes to act as a member of 
 the court, it became our duty to bring this matter up at the earliest possible moment— 
 which is the present one. I understand the course pursued is to read the papers, as has 
 been done by my learned friend upon the other side, and when the moment shall arrive 
 for the accused to present his defence and put in liis plea, then it will be proper that he 
 should be heard before the gentlemen who assume to try him as a court, proceed. It is 
 our client's .and our own desire that the hearing and trial of the case be conducted upon 
 the principles named by my learned friend, wilh entire courtesy and entire fairness. 
 
 The objection and protest is as follows : 
 
 PROTEST, 
 Diocese of Illinois— In the matter of the presentment of George F, Ciishman, D, D., 
 Richard F. Sweet, B. D., and L. B. Otis vs. Rev, Charles Edward Cheney. 
 
 To the Rev. Samuel Chase, D. D., Rev. Thomas N. Benedict, Rev. John Benson, Rev, 
 Henry N. Pierce, D, D., and Rev. A. W. Snyder— Protest and objection ; 
 Charles Edward Cheney, the accused in the alleged presentment aforesaid, not admit- 
 
TRIAL OP REV. CHARLES EDWARD CHENEY. » 
 
 i\tig fhe charges and specifications in said alleo^cd presentment contained are tlierein 
 veil and sufficiently stated and sL-t fortli, nor that the same or any or either of them are 
 or is true, nor that the cilat'Kni issued thereon is sufficient in form or substance : Never- 
 theless, by way of objection and protest, says that eognizanee of the said alleged present- 
 ment, and the charges and speeitteations, matters and things .therein, cannot be taken 
 by Rev. Samuel Chase, D. D., Rev. Thomas N. Benedict, liev. John Benson^ Rev. Henry 
 N. Pierce, D. D., and Rca', A. W. Snyder, who now and here appearing elaim as a 
 court so to do, upon the grounds severally assigned following, to wit,: 
 
 1. Because eight presbyters eanonically qualifled to act as assessors in tlie premises 
 have not presented themselves, and are not present at this, the return day of the cita- 
 tion issued herein, at the time and place therein specified for the selection therefrom by 
 the aeeused of not less than three nor more than live, to act as assessors as aforesaid. 
 
 2. Beeause the said, the Rev. Samuel Chase, D. D., Rev. Henry N. Pierce, U. D., Rev. 
 Thomas N. Benedict, Rev. John Benson, and Rev. A. W. Snyder, decline to be examin- 
 ed by, or on behalf of, the accused touching their qualifleations to sit as assessors con- 
 stituting the court for the trial of the presentment herein, in respect to the formation 
 or expression by either of them of an opinion as to the guilt or innocence of the accus- 
 ed in the premises. 
 
 3. Because the said, the Rev. A. W. Snyder has formed and expressed the opinion that 
 the accused is guilty in the premises, and he is therefore incompetent to sit as an asses- 
 sor on the triafof said alleged presentment. 
 
 4. Because no list of eiglit presbyters, qualified to sit upon the trial of said present- 
 ment has been furnished to accused, out of which to select assessors as by canon provi- 
 ded. 
 
 For which said several reasons, one or some of them, the accused insists that the said, 
 the Rev. Samuel Chase. D. D., Rev. Thomas N. Benedict, Rev. John Benson, Rev. Henry 
 N. Pierce, D. D., and Rev. A. W. Snyder, ought not to act as assessors constituting a 
 court in the premises, and cannot lawfully proceed so to do. 
 
 Charles Edward Cuexey. 
 
 Mr. Fuller then addressed the court in a lengthy argument in support of the (C:hal- 
 lenge or objections in question. He in.sisted that ecclesiastial trials must be coin.dMcted 
 according to the rules of the common law and read from the opinion of Bishoj> Hopkin.s 
 in the Onderdonk case as also from the general canons to sustain this positioiiv He then 
 reviewed the common law right of challenge and also read from the trial of tlie Rev. Mr. 
 Trapxell, in Maryland, to show that a challenge had been made and considered there. 
 
 The challenge in this instance was made not only to the individual and so to thopoills, 
 but also to the array. The different kinds of challenges at common law were fully con- 
 sidered. De Hart on Military Law Avas also cited to show the rule in courts martial 
 which like courts spiritual in this country are court* of special creation and limiiled juris- 
 diction. The greatest liberality of challenge was extended in such courts. He also read 
 from opinions of Hon. Felix Grundy and Hon. Henry Gilpin, when liUing thic office of 
 Attoniey General, that the formation and expression of an opinion disqaalified, laembers 
 of a Navy Court Martial. 
 
 He claimed the same rule existed in the recusatiojuaicis of the civil and canon law. 
 
 The learned proctor insisted that in the absence of a provisicm to the contrary in t;he 
 canon, the right of challenge must be conceded and he discussed at length all the pro- 
 visions of the canon, to show that such right was intended to be exercised. 
 
 Mr. Fuller, in the course of his argument, said that one of his associates and liiJngelf 
 had endeavored to obviate the necessity of raising this question and witli that vi'i^ had 
 sent the Bishop the following letter : 
 
 CwCAQo, Jitne 28..1S69; 
 
 Sight R^wrend <md Dear Sir : Rev, Mr. Clicney has desired us to act as his advocates 
 and proctors in the proceedings in relation to certain alleged offences and miscondjuct 
 on his part, claimed to render him liable to trial. 
 
 We have perused the papers served upon him, and will,, upon due examinatijon, pce-- 
 «ent at the proper time such objections as occur to us should be taken thereto.. In \\iii 
 meantime, however, the request tliat our client shall, within a spiccifled timje, yiz.ilQt 
 days, select out of a list of presbyters furnished by you, not less than three w)r n«)re- 
 than five to act as jnembers of the court to be charged with the consideration of the alleged! 
 offence, induces us to offer certain suggestions, with no intention, of course , of waiving 
 any grounds of objection to either process or presentment that maybe fovjid to exist. 
 It has been claimed that the accused in such cases is entitled to the personal. appearance- 
 
10 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 of f"he clergymen nominated by the bishop, for examination tonchiug their competency 
 to sit as assessors, to the end that snch as may be open to challenge for cause may be 
 excluded from the list, and the accused be enabled to select from an entire number of 
 unobjectionable persons. 
 
 On the other hand this has been denied, and the rule insisted to be that the nominees 
 of the bishop cannot be examined as to competenc}', but the selection must be made 
 from whomsoever he sees fit to designate. We do not seek to enter into any discussion 
 of this question, The presumption is to be indulged that in this, as in all other cases, 
 if a trial is to be had it is designed to be impartial. And it is submitted that impartial- 
 ity can only be secured by giving the accused the opportunity, in some way, to ascer- 
 tain that those who may be his judges are free from disqualifying bias. The 20th dioces- 
 an canon is careful to guard the prosecution from any prejudice in the assessors in favor 
 of the accused. It is not too much to ask that some means should be adopted to prevent 
 prejudice of an opjjosite character. At the same time we do not perceive the necessity of 
 the pergonal jiresence of the desiguated presbj'ters for the purpose of examination. Such 
 a course, we readily concede, would be productive of trouble and expense as well as delay. 
 Assuming the presbyters nominated in this instance to be canonically qualified, it would 
 seem eminently just, and, in fact, absolutely requisite to the proper constitution of the 
 court whenever organized, that it should be ascertained whether they, or either of them, 
 have formed or expressed an opinion as to the guilt m* innocence of the accused. 
 
 As prejudgment would necessarily render them incompetent, we deem it essential 
 that the inquiry should be made as to whether it exists or not. Such inquiry 'we can 
 easily make by letter, but deemed it proper before doing so, to solicit your views in re- 
 lation to it. Very respectfullv yours, 
 
 MELVILLE W. FULLER. 
 
 M. BYRON RICH. 
 
 To the Right Rev. Henry J. Whitehouse, Bishop of the Diocese of Illinois. 
 To which he replied as follows : 
 
 Chicago, July 5, 1869.— Melville Fuller, Esq. ; M. Byron Rich, 'Esq.—Oenflemen — 
 I have received your note of June 2S, to-day, advising me that you are acting as counsel 
 for the Rev. C. E. Cheney, and that you propose on the constitution of the court to ap- 
 ply to act as his " advocates and proctors," the qualifications for which are defined in 
 canon 20. 
 
 In answer to your suggestion on the supposed right of '■^challenge of the^persons who 
 may be his judges to ascertain that they are free" from disqualifying bias," I beg to 
 refer you for my views in relation to that subject to the "'answer of the'bishop of Illinois 
 to the bill of complaint for an injunction from the superior court of Chicago, on the eccle- 
 siastical trial of the Rev. Elijah W. Hager," especially to page 14, and page 49 etseq. 
 
 The time limited for the selection by'the respondent has determined, and I shall con- 
 vene the standing committee for the alternative selection on Thurday morning next, but 
 in the interim, the right of selection may be assumed to be still open to the accused. 
 Very respectfullv your friend and servant, 
 
 HENRY J. WHITEHOUSE, Bishop of Illinois. 
 
 This answer of course precluded any further effort in that direction. Mr. Fuller re- 
 viewed the Bishojp's views as referred to by him and insisted that they were entirely un- 
 sustainable. 
 
 Judge Otis — Before going further, please restate, Mr. Fuller, j-our motion. I must 
 confess, that, after listening to all the learning of the gentleman, I am a little in the fog 
 as to the precise biotion — the precise point that you ask the sourt to decide. 
 
 Mr. Fuller — I was not aware that my much learning had made you mad, Judge Otis. 
 I will restate the point with pleasure : 
 
 That the five gentlemen who appear here, claiming to act as a court, ought not to 
 take cognizance of this presentment, because no opportunity has been given to examine 
 the eight presbyters named in the citation, with a view to ascertaining their competency 
 to sit : because the five who do appear decline to be examined ; because one of the five 
 who do appear has formed and expressed an opinion that the accused is guilty in the 
 premises, and because no list of eight presbyters qn«ilifled to sit — of course my friend 
 will understand that we concede that a list of eight presbyters was furnished to us — but 
 no list of eight presbyters qtudified to sit has been furnished. It seems to me that if one 
 of the five is uiconipetent, the court cannot proceed, It seems to me that even waiving 
 the right of calling for the eight to appear, we have the right to examine the five who 
 
TRIAL OF REV. CHARLES EDWARD CHENEY. 11 
 
 do appear ; but waivinj; both these, if we show that one of the five that do appear has 
 expressed an opinion tlial dis(iiialities liim, it vitiates the whole proceeding and disquali- 
 fies the court. 
 
 Judge Otis said he would not go over the ground at length. He considered the 
 members of tlie court had had large experience and knew what was right. The presby- 
 ters sit as assessors, not as jurors, and assessors are no more than masters in chancery. 
 They find the facts and report. The right of cliallenge was a good common law right, 
 but could not obtain in a court of special creation under the canon law of the church, 
 unless the canon so prescribed. The canons of no diocese allowed it. The answer to 
 Mr. Fuller is, that this diocese has made provision for no sucli thing. 
 
 The objection ought to have been.niade before. Mr. Snyder was a brother clergyman 
 and that was enough. The principles of the common law have nothing to do witli these 
 trials. Such a practice was inconsistent. In a small diocese like that of Kansas there 
 could not be a trial for want of a jury. 
 
 Mr. FiLLEK rejoined that the inconvenience suggested in a snuiU diocese furnished no 
 reason for a denial of justice. That assessors were in no wise like nuisters in chancery, 
 for tliey fixed the sentence as well as found the verdict. That impartiality was the rule 
 of all courts, and any other was abhorent to all ideas of justice. That the canon itself 
 showed in providing that no one of kin to the accused should sit as assessor, that no 
 presumption was indulged because a man was clergyman that the common feelings of 
 humanity might not influence him. That the objection could not be made before, as 
 there was no one to pass officially upon it. That they had tried this witli the bishop 
 and failed. He read from Ilottman on the law of the church in approval of the preva- 
 lence of common law principles in such trials, and insisted that the law of the land 
 must prevail. 
 
 Mr. Thompson — Before this matter is forced upon the presbyters for decision, I want 
 to call the attention of the counsel to another point. 
 
 Judge. Otis — Do you propose to raise another question ? 
 
 Mr. TnOMPSOX — I intimated when I called for this document which I hold in my 
 hand, that there was a question tliat we were not prepared to present ; because we had 
 not seen this paper. We requested that it be delivered to us for the purpose of inspect- 
 ing it. I will not be long in presenting my point. I will, however, allow the presby- 
 ters to determine the other question first. 
 
 Judge Otis — I think we had better take them in order. 
 
 Mr. Thompson — I suppose it would be proper to have this question determined fii-st. 
 
 Judge Otis — I don't know as I have any objection to disposing of it now. We want 
 to get all these preliminary questions settled if we can. I think you had better present 
 it now. 
 
 Mr. Fuller — When docs this meeting expect to adjourn ? 
 
 The President — The court will assemble at half-past 2. 
 
 Mr. Fuller — I did not understand what the hour.s were to be. 
 
 The President— The court will assemble at 2}4 oclock P. M., and at 10 A. M. 
 
 Judge Otis— Mr. Thompson, supposhig you make your point now, and I will theB;isk 
 the court to adjourn. 
 
 Mr. Thompson— I will do so Ijriefly. The citation has never been formally offeretL 
 
 Mr. Fuller — I suppose it is considered as in. 
 
 Judge Otis — Of course ; I suppose so. 
 
 Mr. Thompson — Of course we reserve our exceptions to the citation and tlie present- 
 ment which may come up hereafter. We do not wish to be understood as having waiv- 
 ed any exception. 
 
 I shall simply present our objections now to the commission, which is that it does 
 not pretend to be issued upon either of the three sources of information furnished by 
 the canon. 
 
 Mr. Thompson read the deffinition of offences in tlie general canon, and also from 
 canon XX of the diocesan canons which provides that the mode of proceeding shall be 
 
12 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 for the bishop to organize a commission to present when he has reason to believe on in- 
 formation furnished by three presbyters, the major part of the vestry, or public rumor, 
 as contemplated by the second section of general canon XXXVII. 
 
 And continued : Now the bishop does not pretend to be proceeding on either of 
 these gi-ounds, and therefore had no power to proceed at all. This precise point was ruled 
 in Hager's case by Chief Justice Wilson. Judge Wilson says that the words of the . 
 canon operate as a limitation whether considered as a grant or otherwise. 
 
 So far as the opinion of the court which pronounced this decision is concerned, it seema 
 to me there is no question that is not applicable in this case. It is necessary for us to 
 know how this commission that sits here derives its powers. It is necessary to know, al- 
 so, how this information that sets these proceedings in motion came to the knowledge of 
 the bishop. That goes to the jurisdiction of the proceedings. If it is not satisfactory 
 upon the face of the papers, and is not in accordance with one of the three modes point- 
 ed out by the canon, we know of no other mode in existence. Hence, we bring this case 
 within the decision of Judge Wilson, and ask that the decision be received as determin- 
 ing the question of jurisdiction of the proceedings in this case. 
 
 Judge Otis — I would only reply in a very few words. A commission of presbyters, 
 or laymen summoned in a case is not required to satisfy itself as to the jurisdiction of 
 the bishop. The fact that cause exists to the satisfaction of the bishop in any of the 
 points covered by the canon is sufficient. He appoints the commission. It is not for 
 the commission to inquire why he proceeds. We have not inquired. I do not under- 
 stand that he has necessarily informed us. We need not ask. He gave us a certain state 
 of facts. Whenever a clergyman is under an imputation of having been guilty of a 
 certain thing, he appoints persons to investigate the charges. We do not go back to in- 
 quire of the information of the bishop. We simply investigate de novo upon the evi- 
 dence before us. I do not undertake to inform the other side upon what ground of in- 
 formation the bishop acted in calling this commission. The appointment simply recites 
 certain facts that exist, alleging disorderly conduct, the violation of the canons of the 
 church. 
 
 He recites these facts and thereupon appoints us. We thereupon organize to investi- 
 gate them de rwvo according to the presentment. 
 
 The bishop may have received information from three presbyters, residing within the 
 diocese. He may have had it from public rumor. We have no knowledge of how he 
 derived it. He simply says this clergyman is under an imputation, and therefore, he 
 appoints us. 
 
 We are not to delay our inquiry into the matters presented for our investigation until 
 we know upon what grounds the bishop proceeds. I simply say we were appointed 
 under a canon now in full force and effect ; that is all. 
 
 Mr. Fuller — I desire to suggest that it is a little late, and I think this question might 
 very properly be reserved until after the decision of the other point. Necessarily when 
 we come to the consideration of the citation and presentment, the same jurisdictional 
 objection, will be presented. It is an important question, and it will needlessly take up 
 time to discuss it now. I suggest that an adjournment be had. 
 
 The president then announced the court adjourned until half past 2 o'clock P. M. 
 
 AFTERNOON SESSION. 
 
 At half past 2 the court reassembled ; half an hour's devotional exercises having 
 preceded, when the president arose and said. 
 
 The court is now open for the business before it ; and in reference to the objections 
 which were made to the organization of the court, the court declines to entertain them, 
 and overrules them. 
 
 Rev. Dr. Ch.4.se said the court was now ready to open business. 
 
 Mr. Thompson — The second point raised was not submitted to the court. 
 
TRIAL OF REV. CHARLES EDWARD CHENEY. 13 
 
 Judge Otis — I will consider it on my part as submitted, if yon have no objection. 
 
 Mr. Fuller — It was not so considered on my part, for I expressly stated tliat I 
 thought it should be reserved until the other point raised, was decided. My friend and 
 associate, Mr. Thompson, simply sought to suggest the point to the assessors and to 
 Judge Otis. 
 
 Rev. Mr. Snyder — May it please the court, I would state here concerning the matter 
 decided upon, that I say with all eontidence I never expressed an opinion touching the 
 guilt of the accused. I am perfectly certain of this. It were an absurdity to suppose 
 that one would express an opinion touching the accused party when entirely ignorant 
 of all the testimony which would substantiate such charges. Of course, of all the tes- 
 timony that would substantiate such charges I am entirely ignorant, and almost know 
 nothing about the way in which Mr. Cheney administers his services at any time or 
 place. 
 
 Judge Otis — We ask that the case be now proceeded with in the usiial order, unless 
 there are some more preliminary motions. 
 
 Mr. FcLLEK— Well, Mr. President, there is a little difference of opinion here — there 
 is a misunderstanding which the court will do well to correct before proceeding further. 
 I certainly did not consider that the objections to the commission had been submitted. 
 As however the same objections to the jurisdiction are raised on the citation and prc^ 
 sentment, the argument based on them may go to the commission as far as applicable. 
 I will file the following exceptions : 
 
 Diocese of Illinois— In the matter of the presentment of George F. Cxishman, D. D., 
 Richard F. ;Sweet, B. D., and L. B. Otis, vs. Charles Edward Cheney. 
 
 To the Rev. Samuel Chase, D. D., Rev. John Benson, Rev. Henry N. Pierce, D. D., 
 Rev. Thomas N. Benedict, and Rev. A. W. Snyder, assessors. 
 
 The exceptioias of Charles Edward Cheney, presbyter of said diocese and rector of 
 Christ church, in the city of Chicago, in said diocese to the alleged presentment by Rev. 
 George F. Cushman, D. D., Rev. Richard F. Sweet, B. D., and L. B. Otis, and to the ci- 
 tation issued thereon, allege that the said assessors ought not to take cognizance of the 
 said alleged presentment, and the charges and specifications therein contained, and that 
 the same and the citation issued thereon, should be quashed for the reasons and upon 
 the grounds following, to wit. : 
 
 First Ezcrption — I hat in and by the said citation, it is declared by the bishop of this 
 diocese, under his hand and F<piscopal seal, that the Rev. George E. Cushman, D. D., 
 the Rev. Richard F. Sweet, B. D., and Hon. L. B. Otis, were appointed by said bishop 
 a commission to examine the otlence and misconduct for Avhicli the said bishop consid- 
 ered this respondent liable to be tried, and that the interests of the churcli required an 
 investigation, and that said alleged presentment was found by the said three persons so 
 appointed a comission accordingly: Wherefore, it appears from the citation aforesaid, 
 that the appointment of said three persons as a commission as aforesaid, was invalid and 
 void, as also was the alleged presentment aforesaid so by such illegal and void commis- 
 sion pretended to be found. 
 
 Second Exception — That the bishop of this diocese at the time of his appointing the al- 
 leged presbyters by whom the said alleged presentment was found, did not have reason 
 to believe on information given by a major part in number of the vestry of said Christ 
 church, or by any three presbyters of this diocese entitled to seats in the convention of 
 this diocese, or from "public rumor as contemplated by section 'i, of canon 37," of the 
 general convention that this respondent was under imputation of having been guilty of 
 any otfence or miscondut for which he M'as liable to trial, and that the interests of the 
 church required an investigation. 
 
 Third Exceptiim— That this respondent was not, at the time of the appointment of the 
 said alleged presentors, or at the time of the finding of said alleged presentment under 
 imputation of having been guilty of any oflfence or misconduct for which he was liable to 
 trial. 
 
 Fourth Exception — That in and by said alleged presentment it does not affirmatively 
 appear that the presentors thereof were appointed, and said alleged presentment tliere- 
 by authorized (if cause existed), to be found because the bishop of the diocese aforesaid 
 had reason to believe when he appointed said presentors on information iriven by a ma- 
 jor part in numbers of the vestry of the church of which the accused now is, and then 
 was, rector, or by any three presbyters of the diocese entitled to seats in the convention 
 
14 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 of this diocese, or from " public rumor, as contemplated by section 2, of canon 37," of 
 the general convention, that the respondent was under imputation of having been guilty 
 of any offence or misconduct for which he was liable to trial. 
 
 Fifth Exception — That the respondent is not charged in and by said alleged present- 
 ment or either of the charges and specifications therein contained, with any offence or 
 misconduct, for which he is liable to be tried under the canons of the general convention 
 and of the diocese of Illinois. 
 
 Chakles Edward Cheney. 
 
 The citation has not been read. It reads as follows : 
 
 CITATION. 
 
 CniGAGO, Diocese of Illinois.— To iJie Rev. Charles Edward Cheney, Rector of Chrut 
 Church, Chicago: The commission of three persons, two of whom are presbyters, whom 
 I appointed, acting according to canon 20 of the diocese of Illinois, viz. : 
 
 The Rev. George F. Cushman, D. D., rector of the Churchof the Redeemer, Princeton; 
 the Richard F. Sweet, B. D., rector of the Church of the Epiphany, Chicago ; Hon. Lu' 
 cius B. Otis, Chicago, to examine the offence and misconduct for which I consider you 
 liable to be tried, and that the interest of the church requires an investigation — have 
 found, in their opinion, sufficient grounds for a presentment, and have accordingly pre- 
 sented you for trial. 
 
 I, therefore, the bishop of the diocese of Illinois, do herewith serve upon you a certi- 
 fied copy of said presentment, by the hands of Rev. John Harris Knowles, presbyter, 
 canon of the cathedral, acting as mj' commissary for this purpose. 
 
 And I do, by these presents, cite you, the Rev. Charles Edward Cheney, to appear 
 and answer thereto before a court which shall be duly organized and convened, on Wed- 
 nesday, July 2lst next, in the chapel of the cathedral of Sts. Peter and Paul, on the 
 corner of Washington and Peoria streets, in the city of Chicago, at 10 o'clock in the 
 morning. 
 
 And in pursuance with section 3 of canon 20 of the diocese of Illinois. I hereby furnish 
 you a list of eight Presbyters entitled to seats in the convention. From which list you 
 shall select not less than three, nor more than five, who shall be assessors to try the 
 facts in issue. 
 
 And if within twelve days of the date of this notice and citation being served upon you, 
 you shall fail by neglect or refusal to make such selection, and to notifj' me of the names 
 of the presbyters thus chosen, then and in that event shall the standing committee se- 
 lect for you and the presbyters thus selected shall be the assessors in the case, the same 
 as ifselected by yourself. 
 
 List ofPresbyteks.— Rev. Cornelius T. Abbott, rector of St. Paul's church, Alton, and 
 and rural dean ; Rev. Thos. N. Benedict, minister of St. Luke's church, Wyoming, P. O., 
 Robin's Nest ; Rev. John Benson, rector of St. John's church, Peoria; Rev. Fred. W. Boyd, 
 D. D., rector of Grace church, Galesburg ; Rev. Samuel Chase, D. D., rural dean, vice 
 President Jubilee College, Rector of Christ Church, Robin's Nest ; Rev. Sidney Cor- 
 bett, B. D., rector of St. John's church, Quincy, rural dean. Rev. Henry N. Pierce, D. 
 D., rector of St. Paul's church, Springfield, rural dean; Rev. A. W. Snyder, rector of 
 Calvary church, Chicago. 
 
 Should you, the accused, desire any witness or witnesses to be summoned by such au- 
 thority as the bishop may be able to exert, I will issue suitable summons on being fur- 
 nished with the name or names. 
 
 Given under my hand and Episcopal seal, this 21st day of June, A. D., 1869 ; and in the 
 eighteenth year of my consecration. Henry J. Wuitehouse, 
 
 Bishop of Illinois. 
 
 Mr. Fuller then proceeded to argue in support of the exceptions. He said that ex- 
 amination would disclose that the reverend gentlemen before him had no jurisdiction 
 whatever to proceed to try the Respondent. The commission, the citation and the pre- 
 sentment all showed that such was the fact. 
 
 Nothing was intended in fiivor of courts of limited jurisdiction. Their jurisdiction 
 must be shown aflarmatively upon the face of the papers. So far from that being so 
 here, the presentment showed nothing as to how it was found and the citation and com- 
 mission showed affirmatively that the proceedings were contrary to the canon. That 
 was the end of this ease. 
 
 By the*6th article of the constitution of the General Convention the mode of trying 
 presbyters was left to the diocesan convention^ exclusively. The diocese of Illinois had 
 acted upon the question and defined in the 1st section of the 20th canon, that proceed- 
 
TRIAL OF REV. CHARLES EDWARD CHENEY. 15 
 
 ings could only be instituted -wlien the Bishop had reason to believe upon information 
 given by three presbyters, a major part of the vestry of tlie presbyter's parish or " public 
 rumor," as contemplated by Section 2, General Canon 37, an ofl'ence had been committed 
 by a presbyter. 
 
 The citation, commission and presentment all showed that these proceedings were not 
 instituted on these grounds or either of them. 
 
 Whatever the powers of the Bishop might be, they were limited and controlled by 
 the canons of the church. He must bow to law as well as others. The limitation 
 here was obvious, the identical point had been so ruled by Chief Justice Wilson in 
 Hagcr's case, which was commended by the Bishop in his annual address in 1863 as a col- 
 lection of " vahiahh ecclesiastical precedents. '''' Hoffman had been cited to the contrary, but 
 Hoffman was only treating of whether the canon gave Bishops any power. He thought 
 not, but he delivered himself of no opinion as to whether a canon might not restrict a 
 bishop. 
 
 Again, by these papers the bishop claimed to be proceeding under the 20th canon. 
 
 Judge Otis — Only in respect to the appointment of the assessors. 
 
 Mr. Fuller — Oh, my learned friend, that will never do. 
 
 Judge Otis — Well, read. 
 
 Mr. Fuller — I will read. 
 
 Judge Otis— I mean the citation. 
 
 Mr. Fuller read the first clause and then said : Does not that assert the appointment 
 according to the canon ? 
 
 Judge Otis— Certainly. That is what I said. 
 
 Mr. Fuller — Then can there be an appointment according to that canon, except the 
 bishop has reason to act upon one of those three causes or sources ? 
 
 Judge Otis — Certainly not. 
 
 Mr. Fuller — That ends the argument. If the bishop were proceeding under that 
 canon, it binds him of course, and as he has not proceeded as there provided, the proceed- 
 ings are void. Mr. Fuller then continued : This is a court (as I read from the bishop's 
 letter this morning — a good authority — but even without that authority there can be no 
 doubt) of special creation and limited jurisdiction. What is the rule with regard to 
 courts of that character? That nothing shall be intended to be within the jurisdiction 
 of such a court unless it is expressly alleged. That is the rule. So that in order for this 
 court to have jurisdiction in the premises as an ecclesiastical court the facts which go to 
 make up the jurisdiction must be alleged. Further, if they are not alleged, the pre- 
 sumption even does not obtain that they exist ; but the presumption is that that which 
 is not alleged, does not exist. Now, if that be so, go back a moment, and if the ap- 
 pointment of the commission is under the 20th canon, and if it appear as it does from 
 the citation appear, that those three gentlemen were not apjjointed upon information 
 so given, or upon the public rumor contemplated, then it folloM's that the commission 
 and presentment are void, and the court has no jurisdiction in the premises. And even 
 if we allow (a dangerous concession to make, but which I make for the sake of the ar- 
 gument) that the bishop, by virtue of his visitatorial power, or whatever derivation of 
 powers my friend on the other side may choose to refer it to, has the power to put his 
 presbyters on trial, he does not assume to do so in this instance, but on the contrary, 
 all the papers state, and it is a fact, as he says, that he is proceeding under the 20th 
 canon. Now let us examine the second and the third exceptions, and the fourth too, for 
 that matter, (for they can be considered together). They assert that the bishop did not 
 have reason to believe (not as a question of fact for you to try ; not at all, but because 
 the law implies he did not have reason to believe). Why ? Because he did not state 
 that he did. Why is lie required to state it ? Because proceeding under that canon, 
 the law in regard to courts of special creation and limited jurisdiction applies, and if it 
 be not averred it is presumed not to exist — the court has no jurisdiction — the case is out 
 of it. 
 
16 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 So the foui'th exception asserts the same objection, for it only presents it in a different 
 form. I should have mentioned the third, which is, that the accused is not under impu- 
 tation. Why is that asserted ? Because as a matter of law — upon the face of the papers 
 ■ — on the face of the presentment, the necessary jurisdictional facts are nowhere stated 
 from which it can he inferred that he is under imputation. 
 
 And the fourth exception states the objection in perhaps a more obvious form, that 
 the " presentment and citation do not affirmatively show that the bishop Lud reason to 
 believe," &c., and was so proceeding. Now let me in that connection, though at the 
 risk of Judge Otis' objection of this morning, read (it is not exactly a learned docu- 
 ment, although it was written by a learned man) the decision or opinion in regard to a 
 navy court-martial case, of the Hon. Felix Grundy, the same one I read this morning. 
 There could be no better illustration of the principle for which I contend than this deci- 
 eion : 
 
 " Judges advocate of courts-martial are required to be sworn, and when the proceed- 
 ings in such court do not show that they were, it may be properly considered that the 
 fact docs not exist, and that they were not sworn, and that therefore the proceedings 
 "Were irregular and void." 
 
 Mr. FiiUer elaborated his views at some length. 
 
 The fifth exception stated that no offence was alleged. 
 
 This was true if the position first laid down was well taken because there could be no 
 offence except upon the three grounds mentioned. It was also true if these proceedings 
 were assumed to be predicated upon "public rumor" as contemplated, and it was not 
 contended there had been any complaint by three presbyters or the vestry of Christ 
 church. The general canon defined oflences ; the Diocesan canon did not. The present- 
 ment here preferred three charges. The first was violation of the constitution ; the 
 third, violation of the ordination vows ; the second was violation of the subscription to 
 the declaration which was either no offence at all or fell within one of the other two. 
 Up to 1868, neither violation of the constitution nor of the ordination vows was an of- 
 fence that could be prosecuted upon " public rumor" and the diocesan canon referred as 
 to jDublic rumor to the general canons, as they stood up to 1868, an d would have to be 
 amended to authorize proceedings on public rumor as contemplated by any amendment 
 since that time. 
 
 But counsel denied that the canon had been amended. By the general canons when 
 canons were amended, the committee on canons after the adjoui'nment of the General 
 Convention were charged with the duty of examining, comparing and arranging the 
 amendments, and they were then printed in the journal. Until that was done there was 
 no official publication of the amendments and no one was bound to take notice thereof, 
 unless perhaps if the amendments themselves provided for taking effect earlier, which was 
 not pretended here. The journal of the General Convention of 1868 had never been pub- 
 lished and consequently no amended canon as amended had gone into eflect. 
 
 Judge Otis in reply insisted that none of the papers need show on what kind of infor- 
 mation the Bishop proceeded. The Commission need not set out the facts. 
 
 Now, the accused is not to know anything about the Bishop's sources of information. 
 ■ He is not to know whether the presentment was made upon a complaint of Presbj'ters, 
 or whether by a majority of the vesti-y, or from public rumor. We know that there was 
 an abundance of public rumor afloat, but what the Bishop acted uj^on in making our ap- 
 pointment, he is not required to state to us by any canon. I do not know of any canon 
 requiring it. I do not know that we had any right to ask him, and I am equally confi- 
 dent that the accused had no right to ask him. 
 
 The Bishop says : " I proceed under canon 20, and appoint the commission." I claim, 
 then, that if we construe that he proceeds under canon 20, we have a right to presume 
 that he proceeds all along under canon 20, and under the terms of canon 20, so far as re- 
 quires it to be said. 
 
 Another point is made in respect to the amendment. The question is not whether 
 
TRIAL OF REV. CHARLES EDWARD CHENEY. 17 
 
 this IS a genuine book or entitled to be received in evidence before the court, and I do 
 not propose to present it at present, but I do propose to suppose, for the sake of argu- 
 ment in this preliminary question, that this is the law. We have not presented Mr. 
 Cheney liere on a canon that has been repealed. That would have been a farce. We 
 would have no right to do so. It would be very easy for cither side to make the neces- 
 sary proof to quash such a proceeding. We have proceeded on law supposed to exist, 
 therefore ; according to law as left at the close of the last general convention, of neces- 
 sity. 
 
 Now the legislation of the last general convention is the supreme law of the Church — 
 It is a law for every diocese. Then, as to the facts the Bishop had before him to make 
 the citation, accused has no mare right to know these than the person again-st whom a 
 bill is found by a grand jury. 1 do not wish to spend any more time on these prelimina- 
 ries, and only Want to work for the ends of justice in an Ecclesiastical court. That is all 
 I think we can bo held up to. Reasonable rules we are willing to abide by, aud that 
 is all. 
 
 Mr. FuiXBR— The positions taken on behalf of the accused are not technical. They 
 are substantial and my friend's argument shows it, for he has not answered them. 
 
 The papers should sliow the grounds upon which the Bishop proceeded. Do they 1 
 Not at all, and my friend has really compelled me to say what I did not say before, and 
 tliat is, that I was very much astonished the Bishop should have said what he did and 
 called it a commission ; because, if the Bishop had reason to believe on information given 
 by tliree Presbyters, or by a majority of the vestry, or upon public rumor, as contem- 
 plated by the 'dlth canon — that my client was under imputation, then all that his com- 
 mission would need to fulfill the law, even in its technical aspect, was simply that the 
 Bishop, having reason to believe, upon one of those grounds, had thereby appointed 
 those to whom these presents came. 
 
 My friend says we complained because he did not say more. The complaint is, that he 
 said a good deal too much, and yet not enough; because the commission should state that 
 it is issued upon one of those three grounds, and the citation should state it, and the. 
 presentment should state it. 
 
 Nuvr, if I stood simpLy here, and gave no reason why, but stuck upon the canon, as 
 my friend did this forenoon, there might be cause to complain ; but I go further and 
 show to the court tliat if these proceedings were instituted and have gone thus far upoa 
 the Bishop's reason to believe, derived from public rumors then I say — and my friemdl 
 has not answered the position — that there is ho oQence before the court, and therefore' 
 there can be no trial. That is the point. 
 
 And I say, taking the diocesan canon as it is, that a clergyman cannot be tried ia this 
 diocese upon proceedings instituted on public rumor, for a viohxtion of his ordinMLon 
 vows, for instance. I do not say that he cannot be tried at all. I particularly stated 
 that I thought he could, but he cannot be tried for that upon a presentment tojadc 
 by a commission authorized by the bishop, the bishop proceeding upon public rumor 
 alone. 
 
 I consider the charge a very serious one. I consider that our diocesan convention, 
 even if acting now and here, ought to hesitate before it authorizes the soleiEai oirence 
 of a violation of the ordination vow to be tried by proceedings instituted upon public 
 rumor. 
 
 Public rumor was intended to suggest or require proceedings when that rumor related 
 to immorality and to conduct unbecoming a minister of the church of Christ. It never 
 was intended or thought, up to this time, that it would be applied to that class of iiyu- 
 ries to the church that may be supposed to be involved in technical violation of the 
 ordination vows, but yet, that is, perhaps one of the most solemn charges that can be 
 made against a minister, under which my client, so far as this presentment can place 
 him under imputation, is placed. But it has placed him under an imputation and in 
 proportion to the gravity of the charge should be the care of the court to ascertain 
 2 
 
18 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 whether such offence is presentable under the canon. The offence being of this kind, 
 ought to be proceeded for only on complaint of the vestry or three presbyters. It may 
 be a vestry would not complain. A popular minister, you might say, might have such 
 favor with his vestry that a majority would not initiate proceedings. Grant it, if you 
 please. Granting that they would be influenced by love for their pastor — and I do grant 
 that the vestry of my client's church will most necessarily be influenced by love for 
 their pastor who has brought them up from five or six communicants to 300 ; from a 
 Sunday school numbering, 30 to 700 and from a frame building worth less than $1000, to 
 one of stone of very great value — but three presbyters, if the court please, can be found 
 vminfluenced by any such considerations, influenced only by the duty they owe to the 
 church, and they could initiate proceedings ; could give the bishop that legal, and valid, 
 and substantial reason to believe the thing which all bishops should be loth and unwill- 
 ing to believe, that the accused actually rests under the imputation of having commit- 
 ted an offence or misconduct. 
 
 My learned friend has not answered me when I ask him whether the jurisdiction of 
 this court, of special creation and limited jurisdiction, has not got to be shown upon 
 the face of the proceedings ; and I say that these proceedings do not show jurisdiction 
 upon their face. On the contrary they show the want of it. 
 
 There is the point, and it is a point that is worthy of consideration. So, also, the 
 point with regard to whether the canon has been duly published — because persons are 
 not obliged to take notice of laws that are not, or that have not gonn into effect, unless 
 there was something done at the time of the passage of the law, to put it in operation. 
 Tet he says nothing about it. 
 
 Judge Otis— I said, when I wanted to use this canon in evidence, I would use it. 
 
 Mr. Fuller — It is not a question of evidence. There is no offense if there be no 
 amended canon, and there is no proof before the court that the amended canon has ever 
 gone into effect. 
 
 My friend contented himself, at one time, with falling back upon the letter of the 
 canon. Now he says that it is enough that the bishop authorized the commission to 
 act. But the bishop claims to be proceeding under the canon, and therefore when the 
 papers do affirmatively show a want of jurisdiction, and when in the absence of an 
 averment of jurisdictional facts, the law is that the presumption is of want of jurisdic- 
 tion, I say that these exceptions are well taken, and that, as the papers stand at pres- 
 ent, the court cannot take cognizance of the presentment. 
 
 RETIREMENT OF THE COURT. 
 The court then retired to deliberate. * 
 
 RE-ASSEMBLING. 
 
 The court having returned after an absence of 15 minutes, the president announced 
 that its decision was to decline to receive the objections, and ruled them out. 
 
 Mr. Thompson said : I rise to make a suggestion. We had supposed the session 
 would be from 10 o'clock without any intermission until 2 or 3 o'clock in the afternoon. 
 I am informed by my associate, Mr. Fuller, that he has a sick child at home, and it is 
 now somewhat after 4 o'clock. I would suggest that it would be very acceptable to 
 adjourn until to-morrow morning. 
 
 Judge Otis— I have been trying all day to get to the question "guilty," or "not 
 guilty." I must insist that we must reach that point. I believe there can be but one 
 plea. We have disposed of three or four objections. I ask that the accused plead 
 guilty or not guilty before we adjourn. 
 
 Mr Fuller inquired if he was to understand that the court refused to receive the 
 objections. 
 
 The President said they were received and considered, and rejected. The proper 
 point now would be, as suggested^ by the judge advocate, that the plea be entered. I 
 
TRIAL OF llEV. CHARLES EDWARD CHENEY. 19 
 
 would therefore call upon the Rev. Charles E. Cheney. You have heard the charges ; 
 do you plead guilty or not guilty ? 
 
 Mr. Fuller— Mr. President, the judge advocate has made a suggestion ; but there 
 are certain exceptions to the presentment which should now be taken up. Mr. Thomp- 
 son will present them. 
 
 Judge Otis — I supposed they were embraced in your written paper. 
 
 Mr. FuLLEK — No sir, we take them in order. 
 
 Mr. Thompson — We present to the charges and specifications some exceptions, which 
 are reduced to writing. They are as follows : 
 
 Diocese of Illinois — In the Matter of the Presentment of George F. Cushnuin, D. D., 
 
 Richard F. 8weet, B. D.. and L. B. Otis vs. Rev. Charles Edward Cheney. 
 
 To (he Rev. the Asxessors. — The exceptions of Charles Edward Cheney, presbyter of 
 said diocese, and rector of Christ church in the city of Chicago, in said diocese, to the 
 presentment of Rev. George F. Cushman, D. D., Rev. Richard F. Sweet, B. D., and 
 Hon. L. B. Otis, said respondent hereby expressly reserving his rights under the excep- 
 tions heretofore taken to the jurisdiction of this coiul, allege that the said presentment 
 and the charges and specifications therein contained are informal and insuflicient in this : 
 
 Fir.'<t Ezc'ption — That charge 1 of said alleged presentment and the specifications 
 thereunder are insufficient, as is each of said specifications, in this : 
 
 1. I'hat it does not appear from specification 1 of said charge what alterations the 
 respondent is therein alleged to have intentionally made in the use of the Book of Com- 
 mon Prayer, and offices therein set forth, nor is it therein averred with reasonable cer- 
 tainty, at what time nor under what circumstances such alterations, if any, were made. 
 
 3 That specification 3 of said charge does not aver with reasonable certainty at 
 what time or times the respondent omitted to use the word " regeneration," and the 
 word " regenerate," as therein alleged, nor under what circumstances. 
 
 3. That specification 3 of said charge does not aver with reasonable certainty at what 
 time nor under what circumstances the said respondent did intentionally neglect and 
 " omit to use the office set forth in the Book of Common Prayer in manner and form a.^ 
 the said office is set forth, and established in said book," as alleged therein, nor does it 
 aver with reasonable certainty at what time nor under what circumstances the said re- 
 spondent omitted the word " regenerate " from said office as alleged. 
 
 Second Exception — That charge 3, of the presentment, and the specifications there- 
 under are insufficient, as is each of said specifications, in this : 
 
 1. That specification 1, of said charge, does not specify what material alterations and 
 omissions in the use of the Book of Common Prayer and offices therein set forth this 
 respondent is charged with having made, nor does it set forth with reasonable precision 
 at what time or uiider what circumstances such alleged alterations or omissions were 
 made. 
 
 2. That specification 3 of said charge does not specify with reasonable certainty the 
 time when or the circumstances under which this respondent did purposely omit to 
 read, say, or use the word " regenerate " or the word "regeneration " wherever either 
 of said words occurred in said office or order for the ministration of public baptism of 
 infants, as alleged in this specification. 
 
 3. That specification 3 of said charge does not specify with reasonable certainty the 
 time when nor the circumstances under which the word " regenerate " is alleged in this 
 specification to have been omitted by this respondent in the administration of the sac- 
 rament of baptism to infants, in one or more of the places where said word occurs, in 
 the office set forth for that purpose in the book of common prayer. 
 
 Third Exception — That charge 3 of said presentment, and the specifications thereun- 
 der, are insufficient, as is eachof said specifications in this : 
 
 1. That specification 1 of said charge does not set forth what material alterations and 
 omissions this respondent while officiating in public religious services in Christ church 
 purposely made in such services as set forth aud established in this church in the book 
 commonly called the Book of Common Prayer, as alleged in said specifications, nor 
 does it specify with reasonable certainty at what time nor under what circumstances such 
 alleged alterations and omissions were made. 
 
 3. That specification 3 of said charge does not specify with reasonable certainty at 
 what time nor under what circumstances this respondent did, as is alleged in said speci- 
 fication, in Christ church, in the city of Chicago, in said diocese, intentionally adminis- 
 ter the sacrament of baptism in the case of infants without using the word " regener- 
 ate " and the word " regeneration," as said words occur in the office set forth and 
 established by this church for the " ministration of public baptism of infants." 
 
 3. That specification 3 of said charge does not specify with reasonable certainty 
 when this respondent did, in the ministration of baptism to infants, designedly omit to 
 
20 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 use the word " regenerate " in one or more of the places where said word occurs in the 
 office set forth by this church to be used on such occasions, as alleged in said specifica- 
 tion. 
 
 Fourth Exception— Th^x said presentment is informal and insufficient in this, that the 
 charges therein contained, and the specifications of each of the said charges, do not, 
 nor does either of them, specify with reasonable certainty as to time, place, and circum- 
 stances the alleged otience and misconduct with which the respondent is attempted to 
 be charged therein. 
 
 Fifth Exception — That the said charges 1, 2, and 3 do not, nor does either of them, set 
 forth any offence or misconduct for which this respondent is liable for trial. 
 
 Charles Edward Chekby. 
 
 Mr. Thompson then argued that the first charge specified no oflTence. The article of 
 th3 constitution alleged to be violated related to how changes of the prayer book might 
 be made by the couvention itself. The second charge alleged violation of the declara- 
 tion of conformity prescribed by art. 7 and was no ojfence. 
 
 And neither one of the specifications under eitker of the charges gave time and circum- 
 stances with reasonable precision. He read from Hoffman's Law of the Church, p. 4(Jl, 
 to sustain his views. Hoffman stated the smallest period of time within which the of- 
 fence could be generally laid was one month and designated averments like those here as 
 absurdly illegal. 
 
 Mr. FtTLLER — Will the Court adjourn now? 
 
 Judge Otis — I can say all I have to say in a few moments. 
 
 Mr. Fuller— It will take me at least an hour. [Laughter.] 
 
 ilr. Thompson — We consider these matters of vital importance and would like an op- 
 portunity of discussing them. 
 
 Mr. FcLLER — I wish to make one suggestion so the entire line of argument may 
 be indicated. Under the canon the accused may confess the charges down to the mo- 
 ment of taking evidence. How can he safaly do this under specifications like these? 
 
 Judge Oris^iuall I proceed? 
 
 The Presiden'T— Proceed, Sir. 
 
 Judge 0ti3 said that Hoffman stated that reasonable latitude should be allowed and 
 that was all he claimed here. The place was specified and our Canon had provided no 
 greater definiteness as to time. 
 
 As a precedent, Judge Otis read the presentment against Rev. C. C. Tate, of Ohio. 
 
 Mr. Fuller — Was that ever passed on by any court ? 
 
 Judge Oris — It was not. 
 
 Mr. Fuller — No, the court declined to take jurisdiction. [Laughter.] 
 
 Judge Otis then read from Hoffman the case of Rev. Mr. Ray nor, of Connecticut, who 
 was charged with habitually committing the act complained of; also the article strik- 
 en avX. in the Onderdonk case for want of definiteness. I think the presentment cer- 
 tainly is definite enough for all purposes. All the certainty that can be given is furn- 
 ished. What cannot be proven is not stated for the purpose of making confusion, which 
 need not arise. 
 
 We have not charged this offence with having been committed on one particular Sun- 
 day. In such a case it might have been an accidental omission or oversight, or a mis- 
 take. But when we say he did it purposely, and continued it at divers times during 
 two years, covering a period which shows it is intentional and habitual, then we make 
 out what amounts to an offence. We want to make our allegations with sufficient defi- 
 niteness, so that the accused may not be misled. I have with me here a presentment 
 drawn in the diocese of Ohio, an old diocese, which is about the same, and one drawn in 
 the dioc£3e of Rhode Island. One of the charges in that is drawn in the same way. I 
 have said all I desire to say upon this presentment. All that is necessary to be recited 
 is presented there. I have called your attention to various authorities as precedents. 
 
TRIAL OF REV. CHARLES EDWARD CHENEY. 21 
 
 The time is alleged as near as we could allege it. Being a habitual act it is not neces- 
 sary to state the day. I believe I have stated all I desire to say upon that point. 
 
 Mr. FcLi-KK — It is getting late. Is it desired that 1 proceed? 
 
 I he Prk-idbnt — You may proceed, sir. 
 
 Mr. FubLKK — I cannot but c.vpress my surprise that my friend should endeavor to 
 justify a position so utterly against the authority of his favorite HotTman, by present- 
 ing to this court, as a precedent and an authority, a presentment in Ohio, which, when- 
 ever it comes to trial, will undoubtedly be quashed. The same objection pertains to it 
 that does to this, except that it is a little better than this one. When the 'case in which 
 that presentment was made came up for trial, it was discovered that one of the mem- 
 bers of the court was ineligible, and so it subsided. And Judge Otis has brought in an 
 untried presentment to justify the inaccuracy of this document by his supposition that 
 some court some time, to be organized in the state of Ohio, will hold that document 
 good. .\s we have got ahead of that court, and raised our objection lirst, we hope it will 
 be considered, and we may then furnish a precedent to the slate of Ohio. 
 
 .\.^ii;i: iIj ;ii4 h.'j ii;.it bjfo.-e t'ue oart tUi c;lebrated Ouderdonic case. rhe9th 
 article was stricken out because indefinite ; and Judge Otis' argument is that, because the 
 court, of its own motion, struck that article out for indefiniteuess, this court should not 
 strike this out because it is not quite so inJ^-tinite as that article was ! 
 
 In fact this precedent is in favor of tlie accused. 
 
 Raynor's case is not in point, for it does not appear what the language of the present- 
 ment was. He was presented however for being in the habit of doing so and so. That is 
 not the allegation here. In this presentment it is nowhere alleged that the Rev. 
 Charles E. Cheney, who is now before you as the accused, was or is in the habit of 
 omitting this word. If my friend will allege that my client is in the habit, why that I 
 can meet. If he will allege that he did it on any certain Sunday of any certain year, I 
 will meet him. He has stated to the court himself, I believe, that it was the universal 
 practice, or required by canon — he always has a canon — that a register of baptisms 
 should be kept. We have kept such a register. That suggestion is apposite to my pur- 
 pose. We have had so many baptisms of infants within the last two years, we should 
 have to bring witnesses by hundreds here to disprove the facts charged. Am I to be 
 called upon to bring in here 60J witnesses ? I have at least a right to prove my inno- 
 cence ; there is a presumption in some courts in favor of innocence, but I have never 
 heard that, in any court, a man is to be cut off from proving his innocence. Now then, 
 charged as I am under the presentment, I have got to summon my whole congrega- 
 tion in order to meet it. I say it is unreasonable. No law can be shown for it. No 
 precedent can be found for it. 
 
 The counsel cited Waddilove's Digest, p. 8"iand cases ; 1 Chitty's Crim. Law, 237 ; 3 
 Greenleaf "s Evidence, sec. 471 ; De Hart on Military Law, p. 12.5 ; and Hoffman, p. 4<)1, and 
 insisted that by the Civil, Canon, Military, Criminal and Equity Law, this present- 
 ment was utterly insufficient. 
 
 The Constitution of this State and of the United States required the accused to be in- 
 formed of the nature and cause of the accusation against him, and that requirement was 
 not fulfilled here. 
 
 His client could neither admit the charge nor go to trial. The judgment would not 
 bar another prosecution for the same cause. 
 
 Judge Otis — The last point is a new one. I did not refer to it ; but I will just remark 
 a word or two. It is certainly a strange objection. Who would think of presenting a 
 clergyman in such a case ? W'e charge that six months, twelve months, and two years 
 prior to this presentment, he has done certain things: If he should confess the specific 
 charges, he could not be presented for the same offence during the same time. 
 
 If any specifications are defective, they can be dropped ; there are three or four imder 
 each charge. If any are good, of course the presentment stands.. If the court think 
 
22 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 any of them are too general, all they have to do is not to permit us to offer evidence in 
 their support. I do not admit that any of the charges are defective, but perfection is 
 not to be expected. 
 
 Mr. Fuller — I do not ask that. 
 
 The President declared the court adjourned until half-past nine o'clock to-morrow 
 morning. 
 
 SECOND DAY — WEDNESDAY, JULY 22d. 
 
 At half past 9 o'clock the court convened pursuant to adjournment. 
 
 The Presiding Officer — The court is now open and ready to proceed with the bus- 
 iness that is before it. 
 
 Mr. Thompson — I will say that my colleagues have not made their appearance here 
 yet. I think that they will be here in a moment. 
 
 After a few minutes 
 
 Mr. Thompson said : I will not insist upon delay if the court desires to go on. 
 
 The Presiding Officer — I will announce the decision of the court, with reference to 
 the objections which were alleged by the counsel against the presentment. The deci- 
 sion of the court is that they are overruled — that the presentment is sufficient in man- 
 ner and form. 
 
 Mr. Thompson — Can the court assign any reason for that decision? 
 
 Judge Otis— That is not usual. This is not a common' law court where a judge would 
 make his decision. Here he should not be asked for his reasons. 
 
 Mr. Thompson — I see, so far as I have noticed ecclesiastical trials, the judges have 
 brought in their reasons, and these have usually been presented in writing and have 
 bten recorded. In this case, I have considered, that perhaps it might be proper to do 
 so ; that it was the universal practice. 
 
 Judge Otis — The counsel, probably, have read the Tyng trial. If you read that, you 
 will see that the practice that was followed there was to announce the decision without 
 any reason. 
 
 Mr. Thompson — I will grant that is so in immaterial points, as upon questions of eyi- 
 dence which Avere raised ; but on questions which go to the foundation of the trial, the 
 board or court has usually expressed an opinion. 
 
 Judge Otis — I now ask that the plea be called for. 
 
 The Pke^iding Officer — I repeat then, the order that the court made yesterday : 
 Rev. Charles Edward Cheney, you have heard the charges and specifications, as made. 
 Do you plead "guilty" or "not guilty." 
 
 Mr. Thompson — Guilty of what, may it please the court ? 
 
 The Presiding Officer— Of the matters charged in the presentment. I suppose 
 the answer to the interrogation should be simple and direct. It should be " guilty " 
 or "not guilty," simply. 
 
 Mr. Thompson — As for the specifications that have been presented here, they are so 
 incongruous and imperfect that we have nothing to say to them. 
 
 Judge Otis — Then I ask that since the accused, being called on, makes no reply, he 
 should be entered in accordance with the canon as pleading "not guilty," and the sec- 
 retary will so note. 
 
 Mr. Thompson — May it please the court, I wish to apply here, though I suppose that 
 the court believes it is time to proceed to the trial and go on with the evidence, and de- 
 sires to do so, to the court to fix the time and place for the trial in this case. As it was 
 intimated yesterday by my associate, we take the position that the thirty days mention- 
 ed in the citation under the general provision and meaning of the canons is a time set 
 forth and prescribed simply for the purpose of a return to the citation, and the organi- 
 zation of the court, and that after that is done, and it will be Claimed here that it is 
 done, that then, at that time and place, the time and place of trial shall be determined 
 
TRIAL OF REV. CHARLES EDWARD CHENEY. 23 
 
 and announced, and that notice of that time and place of meeting must be served upon 
 us at least thirty days before it is to take place. Canon 30, Section 8, provides that " all 
 citations and notices in any ecclesiastical proceeding, whether to parties or witnesses, 
 may be served either personally or by leaving copies thereof at their residences. The 
 time between the day of service and the day of appearance shall not be less than twenty 
 days over and above the ordinary time required to travel to the place of appearance," 
 and this applies to the subpoenas as well as the notices. A citation is the process in 
 this case. It is the writ, it is the summons ; it is the process which brings the party 
 into court. Yet there is not an idea or element of time or place of trial embodied. I 
 will now read Section 4 of the same canon : "A written notice of the time and place 
 appointed for the trial" — it does not say "citation" — "a written notice of the time and 
 place appointed for the trial shall be served on the accused, and also on one of the pre- 
 senters, at least thirty days previous thereto, and advocates or proctors shall be allowed 
 on either side." There can be no meaning whatever — these sections cannot be recon- 
 ciled in any other way except to take this eighth section as referring exclusively to the 
 citation which brings the party into court, and the fourth section prescribing the man- 
 ner in which the time and place of trial shall be determined and notice thereof given. 
 
 Now, as bearing upon that rule, I will read from Hoffman, Avhich is not a new book in 
 the trial of this case so far, with reference to the practice in some of the other dioceses, 
 difl'erent authorities upon a construction of particular canons. 
 
 Mk. Thompson then read from Hoffman as to the practice in New York, Western 
 New York and Massachusetts as to citations and notices of trial and continued : 
 
 These two sections of the canon cannot be construed to harmonize in any other way, 
 and that certainly agrees with what the demands of justice and fair play require. Sup- 
 posing that there had been canonical disqualifications to certain members of this court, 
 it could not be organized. It might require an adjournment for that purpose. It cer- 
 tainly cannot be supposed that we are to prepare for trial, or that we are to summon 
 our witnesses until there is an issue formed in the case and the court is properly consti- 
 tuted. This canon speaks, also, of the mode in which depositions shall be taken. Will 
 it be claimed by the learned counsel on the other side that we can go into depositions, 
 and send a commission abroad for testimony, which we have a right to do, until an issue 
 is formed in the case, so that we know what questions to ask as being material to that 
 issue ? Most certainly not. 
 
 We have subpoenaed no witnesses ; we did not know whether this court would be or- 
 ganized. We have also believed that if it was organized, a time and place of trial should 
 be fixed and should have at least the twenty days canonical notice thereafter. Such, 
 then, is my construction of this canon, and I submit to the court that we are entitled to 
 have the time and place of the trial of this cause now fixed and that it shall be at least 
 twenty days distant, " over and above the ordinary time required to travel to the place 
 of appearance." 
 
 Judge Otis — I had supposed that, some time or other, we would get through with go- 
 ing over this same ground. Part of these objections were made yesterday and overruled. 
 Our canons provide that when a presentment is made it shall be served upon the ac- 
 cused, and also upon one of the presenters, at least thirty days previous thereto. The 
 copy of the presentment and the written notice or citation fixing the thirty days, which 
 expired yesterday, go together, and were served upon the accused. We have the evi- 
 dence of that service, if it is necessary to produce it. Thirty days previous to the as- 
 sembling of this court it stated in the citation that the Bishop will issue a commission 
 or subpoenas for witnesses as the party requires. The Bishop is the person who author- 
 izes a commission to issue, not the court. They delay making application to the Bishop 
 for a commission. They do not ask him to subpcsna any witnesses. For all that we 
 know they do not want any witnesses ; and now, after the court is organized, they ap- 
 ply to it for a continuance. There is no authority for that. This canon expressly provides 
 
24 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 authority to grant a continuance ; it is with the Bishop. They should apply to the 
 Bishop before the day fixed for the trial and give their reasons. Section 2 reads as fol- 
 lows: "The Bishop, or, if there be no Bishop, the Standing Committee, may postpone 
 the trial from time to time for cause shown or when justice requires it." The Bishop is 
 the party to apply to before the assembling of the court, but the canon provides, Sec- 
 tion 7, that "when the court is constituted by the presence of the requisite number of 
 presbyters, they shall receive such evidence as may be adduced in accordance with the 
 provisions of this canon, and having deliberately considered the same," shall proceed so 
 aud so. There is no authority given in our canons for this motion or claim that tlicy are 
 entitled to this time after the expiration of the thirty days ; it has never been allowed in 
 this diocese. It has always been refused. Our own construction must be taken as the 
 proper one, I think — the construction that has been put upon it in former cases. There 
 ie no application here for a continuance that this court is authorized to entertain, and 
 the objections taken to the citation and time and place of trial, were disposed of yester- 
 day. I ask that the court overrule the motion. 
 
 Mr. Thompson — I do not like to complain. "We certainly have not manifested a dis- 
 position to complain thus far, but we have no preparations made to go into a trial of 
 this case at this time. When I first got up, I attempted to present to the court my con- 
 struction of this canon with reference to the appointment of the time and place for trial. 
 I urged it as a matter of fairness to the accused. I urged it as being established by anal- 
 ogy with the canonical provisions of other dioceses, and as the only fair interpretation 
 of our own canon ; and I insist upon that interpretation being put upon it. I suppose, 
 when the canon says the Bishop may grant so and so, it means that where a certain 
 presbyter is sitting in the place of the Bishop he steps into his shoes with reference to 
 those powers as well as many others. I do think, may it please the court, that we are 
 entitled to some little consideration, and to some few rights in this body. We made our 
 complaints yesterday in the utmost good faith. When this citation was first served 
 upon Mr. Cheney, before I was retained in the case, his counsel (Mr. Fuller) wrote a let- 
 ter to the Bishop, in the utmost kindness, suggesting some plan by which a fair and ac- 
 ceptable court could be constituted and organized for the purpose of a trial in this 
 case. The Bishop replied, in short to that, refusing all. arrangements which might lead 
 to that result. When the time came for the selection of the presbyters, we found that 
 we could make no selection which would in our estimation constitute a court with 
 which we would be satisfied. We hence paid no attention to that. When this court — 
 these presbyters — convened here yesterday, we presented our objections first to the ju- 
 risdiction of the court. We claimed that it was not properly set in motion ; We claim- 
 ed that, by the canons, it could not be set in motion except in one of three ditferent 
 ways, which it was not pretended on the face of the papers had been complied with. 
 We urged that point, and we also urged that we had a right to come in here and ascer- 
 tain whether the presbyters were qualified, disinterested parties, who would constitute 
 a proper court. We claimed the right to question them, which they refused. We then 
 filed our objections here. We cited all the old rules of the common law, which tlie 
 lawyers have been governed by for many years past in the practice of the law, those 
 rules which have been adopted in ecclesiastical affairs, those rules which have come 
 down to us enriched with all the wisdom of ages and adorned the brows of the judges 
 and priests of the land— we brought them here and they were lightly spoken of by the 
 counsel on the other side, and it seems that they were entirely ignored by the court. 
 Upon each and every one of the objections which we filed here— filed in good faith — be- 
 lieving that they would be entertained and sustained by the court, judging from experi- 
 ence in presenting such cases in courts of law. But it seems that the court entirely dis- 
 regarded them, one and all, and that in a very summary manner by a simple "no," and 
 that was all. When it came down to the point where the court might he considered as 
 having been organized, to a certain extent, a sort of quasi court, and the specifications 
 
TRIAL OF REV. CHARLES EDWARD CHENEY. 25 
 
 and charges were presented, we presented last night our objections to them, relying 
 entirely upon the correctness of our position. We presented them calmly, and candid- 
 ly, and as the time allowed us to do. We had the utmost contidence — we did not have 
 the first scintilla of a belief that these exceptions would be overruled. We thought the 
 law of this diocese, the ecclesiastical law of this court, would cut some figure, even at 
 that stage of the proceedings. Yet we come in here this morning, and we are met with 
 the same cold " no " again. Now, may it please the court, are we not to have any sort 
 of fairness here ? 
 
 Judge Otis — I must call the gentleman to order. He is abusing the court. 
 
 Mr. Thompson — ^^Not at all ; I am simply asking a question. 
 
 Judge Otis — This speaking of "cold noes" is a reflection. Of course tlie court can 
 protect itself, and it is not for me to interfere. Still, I must call you to order. 
 
 Mr. Thompson — I will try to be respectful. I simply wish to present the situation in 
 which I consider the respondent — 
 
 The Presidixg Officek — The court must say that the continuation of the strain of 
 language like that now used would certainly be called to order. 
 
 Mr. Thompson — Very well, I stand corrected, may it please the court, and go back to 
 my point. I would like to know from Judge Otis how he reconciles Section 4 and Sec- 
 tion 8 of the 20th canon of the Diocese of Illinois. What does it mean when it says the 
 citations shall be served twenty days before the day of appearance, and a written 
 notice of the time and place of trial shall be served thirty days before ? I submit that 
 we are entitled to all the advantages which a fair and liberal construction of the canon 
 may grant us if that construction be put upon it. It is not a continuance that is asked 
 for. It is simply that the court will put that construction upon the canon, that thirty 
 days' notice of the time and place of meeting is yet to be fixed by this court, aud if we 
 are to have, as I say, a reasonable construction put upon those canons, and its benefits 
 extended to my client, if we are not in a court or diocese, or in a land tliat is governed 
 by the imperial prerogatives of a Roman hierarchy, I say we are entitled to it. 
 
 Judge Otis — Will the court decide the question ? 
 
 The Presiding Officer — Thy court will now ret re. 
 
 During the absence of the court, Mr. Fuller entered and was received with slight ap- 
 plause. 
 
 At the expiration of twenty minutes the court returned. 
 
 The Presiding Officer — The court announces its decision in reference to the 
 conflict between the provisions of Article 8 and Article 4 as insuflScient, and overrules 
 the objections on the ground that the provision of Article 8 iis, that after the expiration 
 of the time the parties cited should answer unless it be necessary to delay, but no such 
 necessity having been shown in the case, the obj^/ction is overruled. 
 
 Mr. Fuller — Mr. President, we have, up to this time, presented such objections as 
 we had to the jurisdiction, and various exceptions have been laid before you and the 
 alleged board of which you are the presiding officer, every one of which we beliL-ved and 
 still believe were well taken, but all of which have been persistently overruled without 
 cause assigned, and contrary to the letter and spirit of your own law, until at length we 
 have reached the point at which we sliall go no further. I have applied to the superior 
 court of Chicago for an injunction, which has been granted, against further proceedings. 
 [Applause and hisses. J 
 
 The Presiding Officer — I will call the house to order. I must call the house to 
 order. Any repetition of that, and the room will be cleared. 
 
 Mr. Fuller — Determined that if our client were smitten, it should not be contrary 
 to the l;iw, we have felt compelled to pursue this course. The Sheriff of Cook County, 
 who is present, will please to serve the writ upon tlie gentlemea whom he will find 
 here, and who are the defendants named therein. [Cheers, applause and hisses.] 
 
26 
 
 TRIAL OF REV. CHARLES EDAVARD CHENEY. 
 
 The Sheriff then advanced and served upon each of the Assessors the writ of injunction 
 and summons issued from the superior court, and which were in the usual form. 
 
 The writ of injunction strictly commanded the defendant^, their agents and attorneys, 
 to "absolutely desist and refrain from all further proceedings against the complainant, 
 Charles Edward Cheney." 
 
 After a consultation lasting a quarter of an hour, the Presiding Officer said : The 
 court announces that an injunction having been served upon th".m, restraining them 
 from further proceedings in this case, it stands adjourned till to-morrow at 2 o'clock. 
 
 IN SUPERIOR COURT OF CHICAGO. 
 The injunction was ordered on the 23d day ot July, on the filing of the following 
 
 BILL OF COMPLAINT : 
 
 To the Honorable, the Judges of the Superior Court of Chicago, in Chancery sitting : 
 
 Your orator, Charles Edward Cheney, files this, his bill of complaint, against the Rev. 
 Samuel Chase, D.D , Rev. Thonuis N. Benedict, Rev. John Benson, Rev. Henry N. 
 Pieice, D.D., and Rev. A. VV. Snyder, and ihereupon complaining, says : 
 
 That he, your orator, is a presbyter of the Protestant Episcopal church, and rector of 
 the parish of Chi-ist church, in the city of Chicago, in the Diccese of Illinois, to wit, 
 in the county and State aforesaid, and has been fruch rector for more than nine years. 
 
 That he has been in the ministry of the Protestant Episcopal Church between ten 
 and eleven years, and a presbyter thereof since February, 1860. 
 
 That as rector of Christ Church, as aforesaid he receives, and is paid by said fparish 
 the sum of $4,.500 per annum, in addition to the use of ajrectory belonging to said parish, 
 and furnished rent free to him as such rector as aforesaid. 
 
 That said Christ ( ,'hurcli has communicants to the number of upwards of three hun- 
 dred, and a congregation of between six and seven hundred usually present at the regu- 
 lar Sunday services therein, though frequently largely in excess thereof; and a Sunday 
 school of from six to seven hundred pupils, including those of a chapel pertaining to 
 and sustained by, and under the care of said parish ; and that a church edifice of stone 
 belongs to said parish and is used by it for religious services, of the cost and value of 
 more than *60,(X)0 and with the lot on which it stands, which also belongs to said parish 
 —about $100,000. 
 
 That when your orator became the rector of said parish, its communicants were seven 
 in number ; its Sunday school numbered about tliirty ; its usual congregation was 
 about fifty, and its cliurch edifice was a frame building worth less than il,uOO, and it 
 owned no lot. And your orator states these facts with a view to convey to your Honors 
 that he has been abundantly blessed, humanly speaking, in the exercise of his vocation 
 as a minister of God's Church during his connection as such with the diocese and parish 
 aforesaid. 
 
 Your orator further shows unto your Honors that he was born of parents belonging 
 to the Protestant Episcopal Church ; that he was baptised, and at the age of 14 years, 
 confirmed in said Church, and has since always been a communicant of said church, 
 and never been a member of any other body of "Christians. That he determined at an 
 early age to become, God willing, one of the ministry of said church ; that he was edu- 
 cated to pursue that vocation, \V'hich he has followed, and is not by education or inclina- 
 tion adapted to follow any other vocation ; and that his temporal interests are involved 
 in his being and remaining a member of such ministry. 
 
 Tliat on the 21st day of June, A. D., 18fi9, there was delivered to your orator, by Rev. 
 Mr. Knowles, undoubtedly the same referred to in the paper called a " citation," next 
 mentioned, two papers, the one called a " citation " and the other a " presentment," 
 copies of which are hereunto annexed, marked " A " and " B. " 
 
 That prior to the delivery to your orator of said papers, the Rt. Rev. Henry John 
 Whitehouse, Bishop of the Protestant Episcopal Church for the Diocese of Illinois, called 
 upon your orator, and in an interview with him, desired him to admit, or assumed that 
 he, your orator, would admit that he, your orator, had in the administration of that 
 office of the_ service of the Protestant Episcopal Church in this country, known as " the 
 public baptism of infants," omitted the word " regenerate " wherever occurring, or 
 where sometimes occurring in said service ; but your orator expressly declined to admit 
 anything of the kind to said Bishop. That said' Bishop desired your orator to promise 
 not to so omit said word in future, which your orator also declined to do or thereby to 
 admit that he had done so. Tliat said Bishop spoke to your orator upon that occasion 
 in regard to deposition from the ministry of said Protestant Episcopal Church, and in 
 that connection stated that such would be the result if your orator "persisted " in do- 
 ing what he had not admitted to said Bishop he had done. That subsequently in said 
 
TRIAL OF REV. CHARLES EDWARD CHENEY. 27 
 
 interview- the said Bishop declared that he would cause your orator to be brought to 
 trial for the alleged omission of the word aforesaid, and that "there could be but one 
 result, and that" deposition, because," he, the said Bishop, continued (and your orator 
 gives his words nearly with exactness and certainly in substance) "of the ministers of 
 this diocese there were noiic who would not go for his (your orator's) conviction, except 
 those who signed that disorganizing protest, and they were ineligible for that very rea- 
 son." I hereupon your orat^)r asked the said Bishop " Why?" and said Bishop replied, 
 " Because they had slandered the Bishop, and were liable to civil prosecution on that 
 ground." 
 
 Your orator further shows unto your Honors that the "protest" to which said IMshop 
 referred undoubtedly was that of which a copy is hereunto annexed marked "C," 
 and further says, that he is informed and believes that said Hishop declares that he will 
 decline to issue to any minister of the Protestant Episcopal Church in this diocese, who 
 signed said protest, letters dimissory to the Bishop of any other diocese of said Church 
 without " serious qualification," to use his own language, and has, in one instance, so 
 refused on the ground that signing said protest subjected the subscriber to the charge 
 of " dishonesty and immorality." 
 
 Your orator further represents to your Honors that he, your orator signed the said 
 protest as appears therefrom, and that from such the expressions of the said Bishop, 
 which your orator has given with as much accuracy as possible, and which are so given 
 with substantial correctness, your orator feared with deep pain, that, if the said Bishop 
 should, at any time, obtain the oportunity canonically, to wit, in conformity with the 
 diocesan canons of this diocese to have your orator presented and so brought to trial 
 for any alleged offence, the said Bishop would be prejudiced and biased against your 
 orator, and that such his prejudice and bias would be detrimental to your orator in the 
 premises. 
 
 Your orator further shows to your Honors that the ecclesiastical ■ government of the 
 Protestant Episcopal Church is embodied in the canons of the General Convention and of 
 each particular diocese of said Church, and that such canons constitute the law of said 
 Church ; and your orator brings into court here the canons of the General Convention 
 and those of the Diocese of Illinois, and prays that they may be taken as a part thereof; 
 but your orator makes this further assertion in regard to said canons of the General 
 Convention that the "digest " so called, thereof herewith presented, does not embody the 
 action of the General Convention of said Church of 1868 on the subject of canons, which 
 your orator is informed, has not yet been ofheially published and declared, but which in 
 the best form in which, as nearly as your orator can discover it subsists, upon the hear- 
 ing hereof, whether preliminary or final, your orator will present to and file herein, in 
 this court, asking that it may be taken as a part thereof, so far as applicable, although, 
 at the same time your orator objects that such last mentioned so called canons, so far as 
 they may differ from those established down to and inclusive of the year 1805 have not 
 been to your orator's knowledge, officially published and so gone into effect, and your 
 orator submits that question to the court for determination. Your orator further shows 
 unto your honors that said citation and presentment are utterly and wholly void in this, 
 that the so called commission of presentors was not legally or canonically formed or 
 created ; that said citation shows upon its face that said presentors were not appointed, 
 and said presentment found according to the 20th diocesan canon of Illinois, nor does 
 said presentment show affirmatively that it was found according to the said canon. For 
 both of which said reasons said pretended presentment and the citation are illegal and 
 void, and no proceeding thereon can be validly taken under the laws of the said Church. 
 That, as matter of fact, the major part of the vestry of the Church of which your ora- 
 tor is minister, have not given the said Bishop information that your orator was guilty 
 of offence or misconduct for which he was liable to be tried or under imputation of be- 
 ing so guilty, or any information from which the imputation of his being so guilty 
 could arise ; nor, as j'our orator believes, was such information given by three presby- 
 ters of this diocese entitled to .seats in the convention thereof; nor as your orator is 
 advised, has the said Bishop had reason to believe fi-om "public rumor" as contemplat- 
 ed in Section 2nd Canon 37, of the General Convention, that your orator was guilty, or 
 under the imputation of being guilty, of offence or misconduct as aforesaid. And your 
 orator charges, for these reasons, that the defendants hereinafter mentioned, had and 
 have no jurisdiction, under the canons of said Church, to proceed as they have done and 
 are doing. 
 
 Your orator further shows unto your Honors?, that as, and by the alleged citation 
 aforesaid, the names of certain presbyters of the diocese of Illinois are furnished to 
 your orator for the selection therefrom of assessors according to the canon as alleged, 
 that your orator, although believing said proceedings to be void from the invalidity of 
 the appointment of said presentors,"yet hoping that an unprejudiced board of a.ssessors 
 miffht be finallv selected, and so the question of such manifest invalidity fairly passed 
 upon within the Church itself, where such questions might appropriately be detcTmined, 
 endeavored, in the first instance, to discover whether opportunity might be given in- 
 
28 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 formally to ascertain of the persons so mentioned as aforesaid whether they had formed 
 or expressed an opinion as to your orator's guilt or innocence of ott'ence or misconduct 
 for which he was liable to trial or conviction, and accordingly his counsel wrote and 
 sent to the said Bishop a letter, of which a copy is hereunto annexed marked " D," 
 whose reply thereto is also annexed, marked " E." That failing in such etfort inform- 
 ally to ascertain a fact essential to securing impartiality in those who were to pass upon 
 the question involved, and should said matter ever come to trial would find your orator 
 guilty or not guilty in the premises, your orator awaited the day fixed for the return of 
 the said citation, in order at that time, and in appearing to object thereto to exercise 
 formally such rights as he was entitled to. 
 
 That your orator made no selection afforded him by said Canon 20 before the 21st day 
 of July, 1869, but was on the contrary advised by counsel that he, your orator, was en- 
 titled to make selection on the return day of the citation aforesaid, and to then examine 
 the presbyters appearing to sit as assessors touching their competency to do so, and 
 might then exclude such as were found incompetent. 
 
 That on the 21st day of July, 1869, your orator appeared at the place and time men- 
 tioned in said citation, but the eight presbyters named in said citation were not present, 
 but only live of that number, to wit.: Rev. Samuel Chase, D. D., Rev. Henry N. Pierce, 
 D. D., Rev. rhomas N. Benedict, Rev. John Benson and Kev. A. W. Snyder ; but that 
 why said five gentlemen were here, and no others, was not made officially to appear. 
 
 That said last mentioned persons informed your orator that the others of said eight 
 presbyters named in said citation would not officially appear, and that the said five de- 
 clined to be examined touching their competency to sit as assessors ; and your orator 
 further shows unto your Honors that he had been theretofore, but not until after the 
 8th of July, 18'j9, informed and believed, and he still believes, that Rev. A. W. Snyder, 
 one of the said five persons appearing, as aforesaid, had formed and expressed an opin- 
 ion of your orator's guilt in the premises, and your orator, thereupon, upon said five 
 presbyters declining to be examined, as aforesaid, touching their competency as afore- 
 said, filed his protest and objections against and by way of challenge to the sitting of 
 said Rev. Samuel Qiase, Rev. Thomas N. lienedict. Rev. John Benson, Rev. Henry N. 
 Pierce and Rev. A. w. Snyder, and claiming to ac as a court in the premises, upon the 
 several grounds of your orator's not having had an opportunity to examine and select 
 as aforesaid, and because of the incompetency of said Snyder as aforesaid, a copy of 
 which protest is annexed. And said Messrs. Chase, Benedict, Pierce, Benson and Snyder 
 overruled said protest and objection, and each and every part thereof, and refused to allow 
 either of the objections therein stated, and insisted upon proceeding to the trial of your 
 orator in the premises ; and your orator further shows unto your Honors that his coun- 
 sel thereupon called upon said alleged presentors in said alleged presentment named, to 
 produce the commission under which they assumed to act, and they thereupon produced 
 an alleged commission, a copy of which is annexed, which alleged commission was and 
 is entirely void for want of jurisdiction, upon the grounds next stated in reference to 
 the alleged citation and presentment, and was objected to on those grounds, and sucli 
 objection was overruled at the same time that the exceptions next mentioned were 
 overruled ; and your orator further here states and protests, that the statements in said 
 alleged commission, so far as relates to a conversation between himself and said Bishop, 
 were, and are, substantially erroneous. Tliat your orator thereupon tiled his excep- 
 tions to the jurisdiction of said persons so assuming to act as a court and assessors, 
 upon the ground .of invalidity of the appointment of said presentors, as hereinbefore 
 set forth ; and that said alleged presentment charged no offence or misconduct for which 
 your orator was or is liable, which the assessors thereupon overruled, and insisted upon 
 their right and power to try said presentment, and are now intending and proceeding 
 so to do. 
 
 And your orator asks leave to file with your Honors a copy of said exceptions to the 
 jurisdiction of said assessors in the premises. 
 
 Your orator further shows unto your Honors that he believes said Messrs. Chase, 
 Benedict, Benson, Pierce and Snyder are largely influenced by the bishop of this diocese, 
 and that said bishop has, as aforesaid, threatened your orator with deposition from the 
 ministry, and your orator believes said last mentioned presbyters to labor under the 
 supposition that such sentence might, if your orator had been found guilty, be passed 
 upon him ; whereas, your orator shows unto your Honors that he is advised by his 
 counsel that he, your orator, cannot be lawfully deposed from the ministry as aforesaid, 
 but at the same time your orator is advised that, should the said five persons claiming 
 to sit as a court as aforesaid be permitted to proceed and passing sentence of deposition, 
 the same should be approved and deposition inflicted, however illegal such a course 
 might be, your orator would nevertlieless be practically subjected to the penalty of 
 such sentence, and could not officiate in any other diocese, whose bishop could not go 
 behind such sentence, nor is there any right of appeal given your orator in the premises. 
 No .V your orator shows unto your Honors that by the law of the Church he is entitled 
 to an impartial board of assessors to try him, if he is amenable to trial, for oflfence or 
 
TRIAL OF REV. CHARLES EDWARD CHENEY. 29 
 
 misconduct, under and by said law ; that he is advised and believes that he is entitled 
 to obtain such impartial board by the exercise of the riglit of cliallen>!;e of tlie presl)y- 
 ters designated for selection of assessors therefrom, but disciualilied by bias or i)iejudiec, 
 and is entitled to examine presbyters so designated upon tlie question of tlieir com- 
 petency, and that such test of impartiality such right of examination, and such inii)ar- 
 tial board have all been and are now refused him, in the iireniises ; tliat tlie Kev. 
 Messrs. Chase, Pierce, Benedict, Benson and 8uyder, even if constituting a court com- 
 petent to try your orator far any offence or misconduct on his part, cannot talic cog- 
 nizance of tlie alleged presentment, in this instance, because of the invalidity of the 
 appointment of prcsentors as aforesaid, and because, as your orator is advised, the 
 presentment charges no offence tliat can subject your orator to trial and sentence in 
 the premises ; and that said presentment is manifestly insufficient and invalid, for 
 want of sufficient certainty in the allegations therein contained. 
 
 Your orator further shows unto your Honors that he has been served with no other 
 papers on belialf of said prcsentors <>r the bishop of the said diocese tiiau the alleged 
 citation and presentment ; and your orator submits to this honorable court that neitlier 
 of these constitute notice of time and place of trial under said canons ; and that there- 
 fore, were these proceedings otherwise valid, the facts in issue could not now be tried, 
 thougli the defendants threaten to and are about to proceed so to do. 
 
 Your orator further shows nnto your Honors that, as the rector of Christ Churcli 
 aforesaid, lie is entitled to receive, and does receive, the salary aforesaid. That it is 
 claimed that, by such deposition if intlicted upon him, or suspension, not only would 
 he be deprived of such salary and his position as such rector, but lie could not longer 
 legally exercise his vocation as a minister of the Protestant Episcopal Church, and so 
 would be deprived of the means of support to which he has the right to look, and of 
 which he cannot, save in a proper case and by a competent and impartial tribunal pro- 
 ceeding, in a legal manner, be deprived, if al all. Yet your orator shows that said 
 Messrs. Chase, Benedict, Benson, Pierce and Snyder are proceeding as a court, although 
 not according to the law of the church, to assume jurisdiction where they have none, 
 which jurisdiction your orator has not conceded, and his objections whereto he has in 
 no manner waived. 
 
 And your orator shows unto your Honors that he has had numerous calls to parishes 
 In other dioceses of the Episcopal church In the United States at much higher salaries 
 than he at present receives, and down to this time is receiving such calls. 
 
 That although deposition, if brought about by the means indicated, would be illegal, 
 and although, if such sentence should be passed it might not deprive your orator of his 
 salary and the exercise of his vocation, as aforesaid, yet irreparable damage and multi- 
 plicity of suits would inevitably result therefrom. That such would be the case also 
 were sentence of suspension delivered and attempted to be carried into effect. That 
 your orator does not believe himself to have been guilty of offence and misconduct 
 rendering him liable to trial, and in that regard only desires an impartial trial before 
 the tribunals of the Church ; but your orator on information and belief, charges that he 
 cannot have a fair and impartial trial before the five presbyters assuming to proceed in 
 the trial of your orator in this instance, even if they were otherwise competent to con- 
 stitute a court in the premises, which they are not. 
 
 And your orator well hoped that said Chase, Benedict, Benson, Pierce and Snyder 
 would have declined to assume jurisdiction in the premises, or to assume to try your 
 orator when incompetent to do so. But now, so it is, may it please your Honors that 
 said last named persons, combining and confederating with others how to injure your 
 orator in the premises, neglect and refuse so to do, but threaten to proceed as aforesaid, 
 and in excuse thereof set up a variety of unfounded pretences. 
 
 In tender consideration whereof, and for as much as your orator is remediless in the 
 premises at and by the strict rules of the common law, and cannot have adequate relief 
 save in a court of equity, where matters of this kind are cognizable and relievable ; to 
 the end, therefore, that said Rev. Samuel Chase, D. D., Rev. Thomas N. Benedict, Rev. 
 John Benson, Rev. Henry N. Pierce, D. D., and Rev. A. T. Snyder may be enjoined and 
 commanded by this honorable court to absolutely desist and refrain from all further 
 proceedings in the matter of the said presentment (so called) against your orator for 
 certain alleged offences therein specified, which matter said defendants are now threat- 
 ening to try and adjudicate, as a court under the canons of the Protestant Episcopal 
 Church of the Diocese of the State of Illinois, and from proceeding in any manner as a 
 court, or in any manner trying, or assuming to try your orator upon any charges what- 
 ever, and that they may answer hereto (but not upon oath, their oatlis being hereby 
 waived, pursuant to the statute, and may show, if they can, why your orator should 
 not have the relief herein prayed, and that upon the hearing hereof the defendants may 
 be perpetually enjoined from proceeding in the premises ; and that your orator may 
 
30 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 have such other and further relief as the nature of the case rhay require and as may be 
 agreeable to equity and good conscience. 
 
 May it please your Honors to grant unto your orator the writ of injunction issuing 
 out of and under the seal of this court, thereby commanding said defendants and each 
 of them to absolutely desist and refrain from proceeding to try your orator upon the 
 pretended presentment aforesaid, in the proceedings now pending, or in any way, or 
 upon any charges, or under any circumstances as a court or assessors as aforesaid, and 
 also the writ of summons to said defendants directed, commanding them to appear and 
 answer, and to stand to and obey the further order of the court herein. 
 
 And as in duty bound, your orator will ever pray. 
 
 Chables Edward Cheney. 
 By Fuller, Thompson and Rich, his solicitors. 
 
 The bill was sworn to before M. B. Rich, Notary Public. 
 
 The writ of injunction was ordered by Judge John A. Jameson. 
 
 EXHIBITS ATTACHED TO THE BILL. 
 
 A — Citation ; B — Presentment, " C " — " Protest ; " " D " — Letter to the Bishop, 
 *' E " — Reply of the Bishop ; " F " — Challenge or protest objection ; " G " — " Com- 
 mission ; " " H " — Objections to jurisdiction. 
 
 For Exhibits excepting " C," see ecclesiastical proceeding ante. Exhibit " C " is as 
 follows : • 
 
 PROTEST. 
 
 Be it knowx to all men, that we, the undersigned. Presbyters of the Protestant 
 Episcopal Church of the United States.of America, moved, as we humbly trust, by a 
 becoming sense of duty to God, to the Church whose ministers we are, and to our own 
 souls ; and solemnly remembering the vows we took in Urdination to " be ready, with 
 all faithful diligence, to banish and drive away from the Church all erroneous and 
 strange doctrines contrary to God's Word, and to use both public and private moni- 
 tions, a.s need shall require and occasion shall be given," — we the Presbyters aforesaid, 
 satisfied from evidence, to us, incontestable, that Great Peril now exists to the purity 
 of the Faith and WorMp, not only of the Mother Church of England, from which some 
 of us derive our Orders, but also of the Protestant Episcopal Church, and that a scheme 
 exists to undermine the scriptural foundation of these Churches, on the specious plea of 
 a " revived Catholicity," do now, and hereby, in this formal instrument, enter our sol- 
 emn Protest against all teachings, innovations, machinations and devices that are em- 
 ployed for unprotesUintizing this Protestant Episcopal Church, corrupting her doctrine, 
 debasing her worship, and overturning her long established rites, ceremonies and 
 usages. 
 
 And the undersigned Presbyters, together with the laymen, whose names are hereun- 
 to appended, as assenting and coutirming, do furthermore solemnly Protest against the 
 doctrines and teachings of the following passages, extracted from the printed and pub- 
 lished writings of their respective authors — men prominent, by position, in the Protes- 
 tant Episcopal Church : — 
 
 " In the regeneration by Holy Baptimi, in the spiritual and ineffable presence of our 
 Lord in the Eucharist, with the Mystical Nutriment through His Body and Blood, as 
 well as in the definition of the Sacraments gencitilly, there is Virtual Concurrence 
 in the accepted standards of the historical Churches, Eastern, Western," (or Roman) 
 "and Anglican." 
 
 " In addition to this substantial agitement in Orders, Creeds and Sacraments, the nte of 
 Confirmation," &c. [The Convention Address of Bishop Whitehouse, 1868, page 29.] 
 
 " Besides the two Sacraments of tlie highest order, there are other inferior rites, 
 having tlie same natwe, but not necessary in the same way ; among these are Confirma- 
 tion, Matrimony and Holy Orders, in all of which they are an outward sign, and an in- 
 ward grace." 
 
 "1st. The sign: called Sacramentum, bread and wine; simple elements of daily 
 sustenance. These remain in their proper substance after consecration, retaining their 
 
TRIAL OF REV. CHARLES EDWARD CHENEY. 31 
 
 proper nature, and yet tJiey undergo a Mystical Cuange, whereby they become the forms 
 under which Christ is present . ' ' 
 
 "2nd. The thing signified : called Res, the Body and Blood of Christ ; His glori- 
 fied humanity, which, after a manner inexplicable and without a parallel in t/ie ranije of oar 
 knowiedge, becomes present after consecration, not bodily or physically, according to 
 the laws of material or carnal bodies, bat supra-locally, hyper-physieally and spiritually 
 in some way believed in by the Church, but known only to God." [" Manual of In- 
 struction for Confirmation Classes,'' by the Rev. Dr. Dix, pages 41 and 53.] 
 
 "Question. How do we become partakers of the nature of the second Adam?" 
 
 "Answer. By our New Birth in Holy Baptism." 
 
 "Question. What then begins the Christian Life?" 
 
 "Answer. Holy Baptism. 
 
 " Question. What is the Second great step in the Christian Life ?" 
 
 " Answer. Confirmation." 
 
 "Question. What is the Third?" 
 
 " Answer. The Holy Communion." 
 
 "Question. What is the Fourth ?" 
 
 " Answer. Death." 
 
 " Question. What two titles has the Church given to the Blessed Virgin Mary ?" 
 
 " Answer. She is called the Bringer-forth of God and the Ever Virgin Mary." 
 
 " Question. How do we receive forgiveness for sin after Baptism ?" 
 
 " Answer. By absolution and the Holy Communion." 
 
 " Question. Into how many divisions is Everlasting Life divided ?" 
 
 " Answer. Into that which is begun here on Earth, in the Church, and through the 
 Sacramsnt," &c. [Rev. Dr. DeKoven's ''Catechism on Confirmativn," page 72 and 82. 
 
 We solemnly declare that, in our judgment, the preceding extracts aj-e Tiot in harmony 
 with the doctrines and principles of the Protestant Episcopal Church, but directly the 
 reverse, in many particulars, of the teachings of her Articles, Liturgy and Homilies 
 — the very reverse of the principles in defence of wliich many of the Bishops and other 
 dignitaries of our Mother Church endured the fires of martrydom. 
 
 And we furthermore, declare it our fixed purpose and intention, under God, to do 
 what in us lies towards the freeing of this, our beloved Church, from the domination 
 and perpetuation of such sentiments and doctrines. And, for the integrity of our 
 present action, we appeal to the Great Searcher of Hearts, and, for our vindication, to 
 the candid judgment of all earnest, thinking. Christian men, and more especially to 
 that of the members of our own Protestant Episcopal communion. 
 
 Chicago, III., Feb. 18, 1869. 
 
 ECCLESIASTICAL COURT, 
 THIRD DAT. 
 
 Chapel of the Cathedral of ) ■ 
 St8. Pbfek and Paul, V 
 JuLT,23, 1869. ) 
 
 The ecclesiastical court, for the trial of Rev. Charles E. Cheney, which adjourned on 
 Thursday, in response to a temporary injunction issued from the superior court, to ab- 
 stain from further proceedings, reassembled at 2:30. The assessors appeared and took 
 their seats. Rev. Dr. Chase presiding. Mr. Cheney Avas not present, although his coun- 
 sel occupied seats in the audience. The chapel was filled, as soon as the doors were 
 thrown oj^en, by an audience many members of which had come from the extreme 
 southern portion of the city — Mr. Cheney's parish. 
 
32 
 
 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 As soon as the court had convened, Bishop Whitehousb said : — 
 Mat it Please Your Vert Revkrsnd Coukt — Having received from you fl com- 
 munication regarding a postponement, for a definite time therein named, of the 
 further proceedings in this trial, I have prepared an answer thereto, which I present 
 to your body, and request that it may be publicly read. 
 
 The president of the court read the documents submitted, as follows : 
 
 REQUEST FOR ADJOURNMENT. 
 
 CATHKnRAL OF Sts. Peter AND Paitl, Chlcago, July 23, 1369.— To the Right Rever- 
 end, the Bishop of Illinois : — The undersigned, "members of and composing the ecclesi- 
 astical court for the trial of the Rev. Charles Edward Cheney, rector of Christ church, 
 Chicago, in the matter of the presentment of llev. George F. Cushman, D. D., Rev. 
 Richard F. Sweet, B. D., and the Hon. L. B. Otis, against him, having been served with 
 a writ of injunction, emanating from the superior court of Chicago, forbidding all fur- 
 ther proceedings in the matter of such presentment, until the further order of such 
 court in the premises, which writ was so served during the actual progress of such 
 trial, on the 2'id instant, thus interfering by civil mandate with the rights and preroga- 
 tives of this sjiiritual tribunal; therefore, while solemnly protesting against the as- 
 sumed jurisdiction of such civil court in the matter, but at the same time wishing 
 respectfully to submit to the constituted a\ithorities of the State, we have to request 
 that the trial of said Charles E. Cheney be postponed until Thursday, the 29th day of 
 July instant, at 2 o'clock in the afternoon, under the authority, by the canon law of 
 the diocese, vested in you. Respectfully submitted, 
 
 Samuel Chase, 
 
 President of the Court. 
 IlKNRT N. Pierce, 
 Thos. N. Benedict, 
 John Benson, 
 A. vV. Sntder. 
 
 ADJOURNMENT ORDERED. 
 
 Diocese of Illinois : 
 
 Whereas, The counsel for the respondent in the ecclesiastical trial of the Rev. 
 Charles E. Cheney, rector of Christ church, have applied to the superior court in 
 chancery, for an injunction to stay all further proceeding on said trial, and as on such 
 bill of complaint an injunction has been granted by his honor, John A. Jameson, of the 
 honorable judges of said court of chancery, and summons have been served by the 
 sherifif, on the members of the ecclesiastical court, while proceeding with the trial, sit- 
 ting as assessors duly qualified. 
 
 Therefore, In deference to law and order, but denying that the said honorable court 
 of law and equity has any jurisdiction in the matter, and protesting against all claim 
 of the civil tribunals to interfere, whether by equitable proceedings, or in any manner 
 of supervision and control in the administration of the ecclesiastical discipline of the 
 church, in the trial of its ministers : 
 
 I, the bishop of the diocese of Illinois, acting in concurrence with the expressed 
 request of the assessors, and under the provisions of section 3, canon 20, of the diocese 
 of Illinois, do hereby postpone the court for the trial of the Rev. Chas. E. Cheney, to 
 Thursday, the 39th "day of July, A. D., 1869, at the; usual place of convening, to wit.: 
 the chapel of the cathedral, at 3 o'clock in the afternoon. 
 
 Salve Ecclesia. 
 
 Given under our official seal and signature, this 23d day of July, A. D. 1869, in the 
 18th year of my consecration. Hbnrt J. Whitehouse. 
 
 [Seal.] Bishop of Illinois. 
 
 The president then said : 
 
 In accordance with the documents just now read, the court is hereby postponed to 
 the day just now read — the 29th day of July, at 3 o'clock in the afternoon. 
 
TRIAL OF REV. CHARLES EDWARD CHENEY. 33 
 
 CHANGE OF COUNSEL FOR THE PROSECUTION. 
 
 Hon. 8. Corning Judd, of Lewiston 111., having been telegraphed yesterday morning, 
 arrived in the city in the afternoon. He will conduct the case on behalf of the prose- 
 cution, as Judge Otis is about to depart for the east. 
 
 IN SUPERIOR COURT OF CHICAGO. 
 
 On the 26th day of July, the respondents in the bill of complaint filed their answer 
 as follows. 
 
 State of Illinois, Cook county, ss, — Superior Court of Chicago. 
 
 Charles D. Cheney vs. Samuel Cliase et al. In chancery. 
 
 The joint and several answers of Rev. Samuel Chase, D. D , Rev. Thomas N. Bene- 
 dict, Rev. John Benson, Rev. Henry N. Pierce, and Kev. A. W. Snyder, the defendants 
 to the bill of complaint of the Rev. Charles E. Cheney, complainant. 
 
 These respondents now, and at all times, saving and reserving to themselves all man- 
 ner of benefits and advantages wliich may be taken, by exception, to the said complain- 
 ant's said bill of complaint for the manifold errors, uncertainties, insufficiencies, and 
 iniiun-fections therein contained (and expressly denying all equity on the face of the 
 said bill, and all jurisdiction of tliis honorable court in respect to the subject matter of 
 the same), for answer thereunto, or to so much and such parts thereof as they are ad- 
 vised by their counsel is material for them to make answer unto, answering say ; that 
 tliey admit that the said complainant has been and is a presbyter of the Protestant 
 Episcopal church, and rector of the parish of Christ church, Chicago, and that he 
 receives and is paid a salary and has the use of a rectory and that said parish 
 of Christ church has communicants, a congregation, a Sunday school and a ciiurch 
 edifice of the cost and value stated in the bill, and that said complainant was 
 educated for the ministry of said Protestant Episcopal church, all as stated 
 and set forth in the said bill of complaint ; but respondents, each for himself, says 
 that lie has no knowledge as to whether or not said complainant is adapted to 
 follow any other vocation, nor as to whether or not his temporal interests are involved 
 in his being and remaining a member of such ministry yet upon information and 
 belief these respondents, each for himself, denies that said complainant is not adapted 
 to follow any other avocation, or that his temporal interests are so involved as afore- 
 said. 
 
 And these respondents, further answering, each for himself, says, that while he has 
 no knowledge of the service upon, or delivery to said complainant of the papers re- 
 ferred to in said bill of complaint — one called a "citation," and the other a "present- 
 ment," — yet upon information and belief, he admits that the same were delivered to 
 said complainant at the time mentioned in said bill. 
 
 And these respondents further answering, each for himself, admits, that the ecclesiast- 
 ical government of the Protestant Episcopal church is in part embodied in the canons 
 of the general convention of each particular diocese of said church ; but respondents 
 each for himself, denies, that said canons embody all the rules and laws passed for such 
 ecclesiastical government, but the constitution of the Protestant Episcopal church in 
 the United States of America, and the constitutions of the respective dioceses of su<'h 
 church, as well as the common laws of the church, enter into and form part and parcel 
 of the law of the said Protestant Episcopal church, and of and for the ecclesiastical 
 government of the same and of the members thereof. And these respondents submit 
 that the constitution and canon of the general convention of said church and the con- 
 stitution and canons of the diocese of Illinois are not restrictive, nor are any, or either 
 of them restrictive, neither as to offences for Miiich presbyters or priests of said church 
 may be punished, nor altogether as to the manner or mode of procedure, but respond- 
 ents submit that according to their knowledge and understanding of the ecclesiastical 
 law, and as they are advised by their counsel, and verily believe, every bishop of the 
 Protestant Episcopal church has, by the common law of the church, jurisdiction annex- 
 ed to his office as judex ordiiiariits, within his own diocese, and has full power and au- 
 thority " for the correcting and punishing of such of his church as be unjust, disobedient 
 and criminous, for the exercise of all manner of spiritual discipline, whet her. for the 
 administration of punishment for offences or for the regulation and government of the 
 church," except so far as he is prohibited or limited by the written law of the church. 
 
 And these respondents, further answering, deny that the action of the general con- 
 vention of said church of 1868, on the subject of canons, has not yet been officially 
 published and declared ; but, on the contrary, respondents aver that the action of the 
 said general convention of 1868, on the subject of canons, has been officially published 
 and declared, and such action is embraced in a book or volume entitled, " Digest of the 
 canons for the government of the Protestant Episcopal church, in the United States of 
 
34 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 America, passed and adopted in general conventions of 1859, 1862, 1865 and 1868, to- 
 gether with the constitution," and which booii or volume these respondents beg leave 
 to submit through their counsel to this honorable court, and pray that the same may 
 be taken as a part of their answer. And respondents further say, according to their 
 best knowledge, information and belief, that said book or volume contains the constitu- 
 tion and all the canons of the said Protestant Episcopal church in the United States, 
 now in force ; that is to say, the constitution and canons of the general convention of 
 such church. 
 
 And these respondents further answering, each for himself, says, that on the 8th day 
 of July, A. D. lSf)9, the standing committee of the diocese of Illinois, appointed these 
 respondents, assessors, for the trial of the complainant, upon charges preferred against 
 him by Rev. George F. Cushman, D. D., Rev. Richard F. Sweet, D. D., and L. B. Otis, 
 and at the same lime elected the respondent, Rev. Samuel Chase, D. D., president of 
 the court, in case of a contingency provided for in section 3, canon 20, of the diocese of 
 Illinois, and of such appointments, each for himself, says, he was duly notified by the 
 bishop of Illinois and requested to attend at the chapel of the cathedral of Saints Peter 
 and Paul, on the corner of Washington and Peoria streets, in the city of Chicago, on 
 the 21st day of July, 1869, at 10 o'clock in the forenoon, to act as such assessors, and in 
 obedience to such request, these respondents did, as they were in duty bound, attend 
 at said time and place, and organize as an ecclesiastical court, according to the provis- 
 ions of said canon 20 of the diocese of Illinois aforesaid, for the trial of the said com- 
 plainant, under the charges aforesaid, the respondent Rev. Samuel Chase, D. D., acting 
 as pre:ddent of the court, the right reverend, the bishop of Illinois, having declined to 
 prosecute or sit on such trial. And further answering, these respondents say, that at 
 the same time and place, the said Rev. George S. Cushman, D. D., Rev. Richard F. 
 Sweet and L. B. Otis, appeared as prosecutors, and were also represented by their 
 proctor and advocate, and at the same time and place the complainant appeared before 
 these respondents in person, and by his proctors and advocates, and thereupon the pre- 
 senters submitted a presentment, a copy of which is referred to in tlie bill of complaint, 
 and asked that the complainant be requested to plead to the same, when the com- 
 plainant, by one of his proctors, requested the proctor for the presenters to produce the 
 authority under which the presentment was made, and thereupon the proctor for said 
 presenters produced a paper, a copy of which is referred to in the bill, and afterward, 
 and on the same day, and at the same place, the said complainant presented exceptions 
 to the said paper to these respondents, vi'ho were there and then acting as such ecclesi- 
 astical court, a copy of which exceptions are referred to in the said bill of complaint ; 
 and the respondents as such court, having heard the argument of counsel and given due 
 consideration to the same, overruled such exceptions. 
 
 And respondents further answering, say, that the citation, a copy of which is referred 
 to in the said bill of complainant, was at the same time and place produced before the 
 respondents there and then acting as such ecclesiastical court, and exceptions thereto 
 were filed by the said complainant, and which exceptions are also referred to in the 
 bill ; and after hearing argument of counsel for complainant and said presenters, and 
 after having given the same due consideration, such exceptions were overruled by these 
 respondents acting as such court. And on the same day the complainant demanded the 
 privilege of examining these respondents for the purpose of ascertaining whether any 
 or either of them had formed or expressed any opinion as to the guilt or innocence of 
 him the said complainant, and these respondents declined to submit to such examina- 
 tion, but, at the same time, offered to submit to an examination as to whether or not 
 cither of them was connected with the complainant by relationship or marriage, or was 
 not entitled to a seat in the convention, as provided in said canon 20 ; but said com- 
 plainant failed to n^ake any examination on such grounds and took no exceptions in re- 
 spect thereto. And at the same time and place said complainant entered and filed 
 before these respondents, then and there acting as such ecclesiastical courts, his excep- 
 tions to the aforesaid presentn^ent, and which exceptions, after argument by counsel 
 for said complainant, and also for said presenters, and after consideration by these 
 respondents, were overruled by respondents acting as such court, namely, at a session 
 of such court on the 22nd day of July, 1869, to which time they had previously 
 adjourned. 
 
 And these respondents further answering say that afterward, at the session of respon- 
 dents as such court on said 22d daj' of July, 1869, at said place, the said complainant 
 being present in person and represented by counsel, the counsel for the presenters asked 
 that the plea of the said complainant to said presentment be called for, whereupon the 
 respondent, the Rev. Samuel Chase, D. D., as the presiding ofl&cer of said ecclesiastical 
 court, demanded of said complainant a plea of guilty or not guilty of the matters charg- 
 ed in the presentment, and the complainant having failed to plead the confession or de- 
 nial, respondents considered him as denying the facts charged in the presentment, and 
 
TRIAL OF REV. CHARLE3 EDWARD CHENEY. 35 
 
 under the provision of canon 20 of the diocese of Illinois aforesaid, and the clerk of the 
 court accordingly entered the plea of not. ijuilty. Whereupon, afterward, at the same 
 time and phic^, the complainant still hein^ present, one of the proctors and advocates 
 for said complainant asked these respondents, acting as such court, for a continuance of 
 the trial, insisting that under the canons of the church, complainant was entitled to 
 further time, and staling also that complainant had subpfcnaed no witnesses and was 
 not ready to proceed to trial; that thereupon the proctor for the presenters responded 
 in argument against a postponement or continuance, and in reply to which argument, 
 complainant's said counsel again demand that by a proper construction of the canons, 
 the trial should not then proceed, and that it was not a continuance really that was 
 asked for, and that a construction should be given by these respcmdents, as such court, 
 to the diocesan canon No. 30 aforesaid, by which 30 days' notice should be given to the 
 complainant of the time and place of the next meeting of the court yet to he tixed 
 upon ; but respondents say that complainant made no showing i^s to having any defence 
 on the merits, nor as to having any material witnesses, nor as to having exercised any 
 diligence to procure the attendance of any witnesses, and after having considered the 
 arguments of counsel, these respondents, acting as such court, overruled such motion 
 or request for the continuance or postponement of said trial, or the objection to pro- 
 ceeding with the trial whichever construction such action of said counsel lor complain- 
 ant may have properly borne. 
 
 And these* respondents further say that, within a few minutes after the decision last 
 referred to, these respondents were served with the writ of injunction and summons 
 from this honorable court, and hence proceeded no further, except to adjourn until the 
 following day. 
 
 And these respondents further answering, say that as they are advised by their coun- 
 sel and verily believe, they constitute, and are an eccesiastical court of the Protestant 
 Episcopal church in the diocese of Illinois, duly constituted and organized for the trial 
 of the said complainant, and upon the charges made against him in said presentment, 
 having a presiding officer and a clerk (members of the court), and having jurisdiction 
 of the subject matter set forth in the presentment and of the person ot the said complain- 
 ant; and they respectfully submit that this honorable civil tribunal has no rightful 
 jurisdiction to interfere with their duties and prerogatives as such ecclesiastical tribu- 
 nal. 
 
 And further answering, these respondents, each for himself, expressly denies that he 
 is largely or in anywise influenced by the bishop of Illinois in tlie matter of the said 
 trial, or that he (each of these respondents speaking for himself) labors under the sup- 
 position that sentence of deposition from the ministry will be passed upon complainant ; 
 and each of thuse respondents expressly denies all prejudice and bias against said com- 
 plainant in the matter in the said presentment and charges against him, and in the mat- 
 ter of the the trial thereunder, that can in any way or manner prevent a fair and impar- 
 tial hearing and determination of the case againgt said complainant ; and each of these 
 respondents say thiii as a member of said ecclesiastical court it is and has been his inten- 
 tion and desire to give said complainant a fair and impartial trial, and to administer the 
 laws of the ciiurch in the premises without favor and prejudice, and accortling to ths 
 principles of justice and right as applied to the facts that shall or may be proven, in the 
 case, and that he will be gratified if it shall transpire from the evidence that »aid com- 
 plainant is not guilty of the charges against him ; and each of these respjiidents aver 
 that he has no present opinion as to whether said complainant is guilty or innocent. 
 And this respondent, i. VV. Snyder, answering for himself expressly denies that he has 
 formed and expressed an opinion of the complainant's guilt in the matter of said pre- 
 sentment and charges. 
 
 And these respondents further answering aver that, as they are informed and verily be- 
 lieve, in the year 1863, and prior to the meeting of the annual diocesan convention, ques- 
 tions arose touching the true construction of said canon 20, of the said diocese of Jllinois, 
 and the mode of proceedings there under for the trial of a priest or presbyter of said 
 church, in a certain cause then pending in this honorable court, wherein llev. E. VV. 
 Hagar was complainant and Rt. Rev. Henry J. Whitehouse, bishop of Illinois, and others 
 were respondents, in which cause it appeared that the same course of proceedings had 
 been substantially had, as the complainant alleges has been taken in this case now before 
 the court, as will'more fully appear and at large by reference to the pleadings and papers 
 therein now on file in the court, and to which these respondents beg leave to refer as a 
 part of this their answer, and by means whereof the attention of the law-making power 
 of the said Protestant Episcopal Church in the diocese of Illinois, namely, the conven- 
 tion of said diocese at the regular annual session held in September, 1863, was called to 
 the construction which had been given to said cannon 20 aforesaid of said diocese by the 
 bishop of Illinois in his answer in said cause ; and the question arose in said convention 
 as to the propriety of amending said canon, but after due consideration thereof the 
 
36 
 
 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 whole matter was laid upon the table and the said answer of the bishop, together with 
 the opinion and dicision of this honorable court and the argument of the solicitor for 
 the respondents in said cause, were by said convention ordered to be published Avith 
 the journal of said convention, which was accordingly done, as will more fully appear 
 by reference to the printed proceedings of the said convention ready to be xjroduced in 
 court, and, as these respondents are advised and believe, said convention approved the 
 construction and the mode of proceeding adopted and pursued in that case, which res- 
 pondents understand to be conclusive of the questions now made by the complainant 
 under said canon. 
 
 And the respondents further answering deny that irreparable injurj' can result to the 
 complainant from the trial under said presentment, within the meaning of the rules of a 
 court of chancery, as they are advised and believe ; and they further deny any con- 
 federation, conspiracy or misconduct on the part of these respondents in the matter of 
 the said presentment or trial. 
 
 And now, having fully answered, these respondents pray to be dismissed hence with 
 their costs, in this behalf most wrongfully sustained. And, as in duty bound, they will 
 ever pray. 
 
 SAMUEL CHASE, 
 THOxMAS N. BENEDICT, 
 JOHN BENSON, 
 HENRY N. PIERCE, 
 A. W. SNYDER. 
 
 S. CORNING JUDD, Solicitor and of Counsel for Respondents. 
 VV. C. GOUDY, of Counsel. 
 
 Together with the afladavit of Bishop Whitehouse as follows : 
 
 AFFIDAVIT OF THE BISHOP. 
 
 The Rt. Rev . Henry John Whitehouse, being first duly sworn, deposes and says, 
 " That he is the bishop of Illinois ; that although the deponent is not made a party in 
 the bill of complaint, he is, nevertheless, formerly introduced into the same. By a pro- 
 fessed recital of a certain interview between the complainant and the deponent, various 
 charges are alleged or implied, as tend to show an unfounded and malevolent prejudice 
 against the complainant ; and the etfect of this prejudice, or bias, is affirmed to be such 
 as not only to debar the complainant from a fair trial in this pending case, but which 
 would operate in any case in which the said bishop should at any time obtain the oppor- 
 tunity canonicaly, to wit, in conformity with the diocesan canons of the diocese to have 
 your orator presented and brought to trial for an alleged offence the said bishop would 
 be prejudiced and biased against your orator, and that such prejudice and bias would 
 detrimentally atfect your orator in the premises." If the deponent were to admit the 
 prejudice thus described, which he does not admit, but, on the contrary, wholly disa- 
 vows, the inference therefrom sought to be set up would be extravagant and irrelevant. 
 The plea which is set up is, in reality, to the effect that if the bishop of the diocese 
 whose express duty it is " to inspect the behavior of his clergy" (Can. 13. 11 Dig.), 
 should at any time form an unfavorable opinion of the specific or general behavior of a 
 clergyman, or deem that a clergyman in any given instance did act unworthily, and 
 the offence if proven would submit him, tlie clergyman, to punishment, then practi- 
 cally, that minister must be morrally exempt from liability to trial by that bishop, and 
 could not be tried for any such offence because " the bishop would be prejudiced and 
 biased against that clergyman so as detrimentally to effect said clergyman in the premi- 
 ses." 
 
 The deponent may. consider in the case of the signer of " the protest " thus irrelevant- 
 ly introduced, that such signer is seriously affected in a moral estimate of characters, 
 and if the bishop should be called upon to give " a testimonial which shall set forth the 
 true standing and character " which testimonial is called " letters dismissory," the said 
 bishop might be conscientiously bound to state what did impeach the standing reputa- 
 tion of the applicant for such letters, subject, however, to the discrimination in the ac- 
 ceptance or rejection of such certificate by the bishop to whom it might be addressed. 
 But this state of things might exist without subjecting the deponent to an inferential 
 charge of such malignant prejudice as would disqualify him from his official duty in a 
 trial avowedly " according to the canons " on a different count altogether. 
 
 This deponent, therefore, solemnly denies all undue bias, prejudice, or enmity of any 
 kind or degree which would consciously affect him in the functions of discipline in this 
 case. 
 
TRIAL OF REV. CHARLES EDWARD CHENEY. 37 
 
 The deponent admits an interview sought and had with said complainant, in his own 
 liouse, on Monday P. M., May 31 last past. but. denies that eitlier the purpose of the 
 deponent in said interview, or that his desire in any part or circumstance of it wliatso- 
 ever was to induce the complainant "to admit or assume that he, your orator, would 
 admit that he, your orator, had, in the administration of that office of the service of the 
 Protestant Episcopal church, in this country known as the Public Haptism of Infants, 
 omitted the word ' regenerate' wherever occiirrin<;, or where sometimes occurring in 
 said service." On the contrary he solemnly declares that the complainant of his own 
 free will and spontaniety did narrate to him that the complainant did omit the ."aid 
 word or words because he could not conscientiously use them ; that his practice had 
 been for considerable time so to do, and he freely gave to the deponent ami)le narrative 
 to that efl'cct, and which assured him of a fact which he was jniined to hear thus i)lainly 
 declared, because he had hoped that it did not exist. And on this point of tlie volun- 
 tary and full statement of the fiict of such omission in the office of infant baptism, and 
 of the specific word or words omitted the deponent cannot be mistaiten, because the 
 whole conversation which followed, and the effort of the deponent during a protracted 
 intei vi(!W was to urge, as earnestly and affectionately as he could, divers arguments, ap- 
 peals, and " admonitions" to induce the complainant to change his views on his as- 
 sumed meaning of the word " regenerate" and "regeneration" as used in that baptis- 
 mal otlice, and to prevail on him to conform strictly to the prescribed formulary of the 
 church in the administration of holy baptism to infants. The complainant " did decline 
 to promise not to omit the said word in future" but solely as expressed, on the ground 
 of conscience, and not on the ground declared in tlie bill of complaint or implied of re- 
 ticence lest " thereby he should admit that he had done so ;" i. <■., omit the word or 
 words. And further is this certain to the deponent from the actual subject and object 
 of his visit to said complainant on the occasion named. The deponent had been inform- 
 ed that the Rev. Mr. Cheney had stated, not confidentially, but as a fact honorable to 
 himself, and in solution of a conscientious difficulty, that he did not use parts or ex- 
 pressions objectionable to him in baptising infants, but did omit the word or words in 
 question. And, while not admitting the necessity of the facts being brought to the 
 knowledge of this deponent by "public rumor," and while expressly denying the neces- 
 sity of the same, yet this deponent states that while his first information miglit be taken 
 as reasonably equivalent to that ground of proceeding, yet before your deponent did 
 proceed, issue a commission, or take the incipient steps for the c-ame, the facts alleged 
 had become to a large extent " public rumor" through the congregation of Christ 
 church, and by publications in the daily newspapers of the city of Chicago. But the de- 
 ponent ventured to express to his informers his disbelief of this fact, and that the state- 
 ment made was a mistake, and hopefully trusted that it would be proved to be so by 
 the disavowal of the complainant. 
 
 In the interview of May 31 last past, the one throughout in question, the deponent 
 opened the conversation by the statement, in substance. " That he had called on what 
 in one aspect Avas a question of discipline," on which he stated that he introduced as 
 such in order to put the complainant on his proper guard, " but that he hoped and be- 
 lieved that what he was about to say, would be found to be without foundation." 
 
 The complainant made some personal comments on the statement after the same had 
 been repeated to him. The complainant then substantially .said : "I cannot, however, 
 and do not wish to deny that I do not use the baptismal office for infants as it is. What 
 you have heard is a fact, and it is true that I do omit the clause, which declares the 
 child to be ' regenerate,' from the service. I cannot conscientiously say so for myself 
 or my congregation." On this the complainant spoke at this time, and at several times 
 after in the conversation with explicit detail. The deponent expressed, in answer, his 
 deep pain and disappointment because, in his esteem, it was a serious matter, and, if it 
 were persevered in lay said complainant, would necessarily compel him, as bisho]), to 
 bring said complainant to trial therefor, in explanation of which view of the importance 
 of the issue he gave several reasons. But the deponent did further say. and renewed the 
 statements afterward in the interview, that, in all he should now say, he was to be un- 
 derstood to speak officially, and in the exercise of the bishop's privilege of "godly ad- 
 monition," as fully as such could apply to the case. 
 
 For on examination of this " godly admonition " he begs to refer to the question and 
 answer in the ordering of priests. " TJic Bishop — Will you reverently obey your bish- 
 op and other chief ministers who, according to the canon of the church, may have the 
 charge and government over you, following with a glad mind and will their godly ad- 
 ministrations, and submitting yourself to "their godly judgments? Answer — I will dc 
 so the Lord being my helper. 
 
 This deponent avers, and as before God, that according to his ability, during the 
 whole interview he spoke to your orator seriously, truthfully, and affectionately as a 
 spiritual father to his son in the faith. He explained the terms and the freedom of in- 
 terpretation which had always been allowed, admitted the privilege of complaint to ex- 
 
38 
 
 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 plain " regeneration " in its doctrine or ecclesiastical use, as lie the complaint received 
 the same, nnd only required tliat on his complaint's honor as a clergyman, .he would, . 
 while in the deponent's jurisdiction, promise to use the baptismal otiice, in question as • 
 prescribed ; on which promise thus privately given, the deponent would be fully satisfi- 
 ed, the matter should terminate and the conversation might be regarded as private to 
 the parties. 
 
 To all, however, this deponent understood your orator to say at several times "That 
 he could not and would not use the expression in the public baptism of infants," but 
 did not scruple to use it in the " baptism of those of riper years," because he satisfied 
 himself beforehand that the candidate was regenerate. 
 
 This deponent, near the close of the interview, used the following expression or one 
 exactly equivalent, which went unchallenged by complainant, whose maimer during the 
 interview did not evince any sense of injury or offence from the words or manner of 
 this deponent, this deponent said: "I have intended to speali, and I believe I have 
 spoken to you in all this as I would to one of my own sons." 
 
 The allusion to the "protest" did not occur until the conversation was finished and 
 this deponent was ready to leave. 
 
 This deponent desires further to answer and explain what is declared by complainant 
 in the expression of the bill of complainant "desired him" said complainant "to ad- 
 mit or assume that he would admit." 
 
 The facts in the case were so distinctly declared, and the conscientious right and duty 
 to do as complainant declared he did and would do was so claimed and asserted, that 
 this deponent was in doubt whether it was to be taken *^pro confesso^^ as involving the 
 ofl'ence and misconduct impliedly also. 
 
 This deponent asked the question to call attention to this important distinction, and 
 did receive for answer that he, said complainant, did not wish to admit anything affect- 
 ing his interests in the case ; which reserve this deponent told him was paid for, and 
 ^dvised him not to act without counsel, and proposed that he should take time for 
 reflection before giving what the deponent would consider his formal answer on the 
 alternative as presented, " either to conform to the prescribed ritual in the matter in 
 issue or stand trial for the fact of omitting the word or words involved." 
 
 Said complainant, in the close of the interview, in compliance Avith the suggestion, 
 asked one week for that consideration. This was cheerfully granted, with a very 
 strong expectation that complainant would recede from the determination expressed 
 during the conversation, and agree to use the service as prescribed. 
 
 At the expiration of the time this deponent received a note from comi^lainant of 
 which the following is a true copy from the original : 
 
 "Christ CntiRCH Rectory, Chicago, June 8, 1869 — Rt. Rev. and Dear Sir: — I 
 regret that circumstances compelled me to delay for a few hours the answer Avhich I 
 promised to send you in one week from our conversation, on Monday the 31st ult. 
 
 " After the most serious and prayerful deliberation, I can only say that I have been 
 able to arrive at no other conclusion than that already expressed to you. 
 
 Verv truly yours, Charles Edward Chenet. 
 
 "Rt. Rev. H. J. Whitehouse, D. D." 
 
 This letter this deponent understood and now understands to refer him entirely to 
 the conversation of May 31, particulars of which have been detailed. 
 
 The conversation had beyond all possible doubt, admitted the facts alleged, in the 
 practice of complainant, to wit : The omission of the word " regenerate " and the rel- 
 ative change of the baptismal office. It had affirmed his conscientious scruples prevent- 
 ing his use of these terms, and his resolution not to reform his practice in this respect, 
 but to continue as he narrates he had done. It did not involve the confession of mis- 
 conduct, or wrong, or liability to trial, or to any special penalty for so doing. This 
 deponent understood complainant certainly not to admit, and to this understanding 
 this deponent has, he believes, strictly adhered in his official action. 
 
 This deponent further avers that if "deposition" or any penal sentence was at any 
 time mentioned in the conversation thus in question, it Avas not in local or any personal 
 pre.iudice to the case of complainant, if lie should be brought to trial, but only as one 
 of the possible or probable consequences of the persistence in a wayward and unlawful 
 course in which complainant claimed the necessity and right to prescA-ere the "godly 
 admonition" of his bishop notAvithstanding. But this deponent solemnly declares 
 that he did not at any time or any way, say "that there could be but one result to a 
 trial and that deposition," because he has" no control over the finding of a sentence, 
 but has judicial power to abate a sentence found to one less severe. And this deponent 
 knows that there are other sentences of "admonition" and "suspension" definite or 
 contingent. If in general conversation deponent has ever alluded to such a final issue 
 as deposition, it has not been as an inevitable finding of an ecclesiastical court, but as 
 
TRIAL OF REV. CHARLES EDWARD CHENEY. 39 
 
 an extreme result to which comphiinant by contumacy and obstinate disobedience, 
 might himself press the penal consequences. 
 
 This deponent most solemnly denies all and every form of prejudice which could 
 unlawfully affect the case of complainant in the ecclesiastical coiirt before whicli he 
 stands canonically and truly impleaded, eitlier in the composition of tlie court or its 
 jjroceedings, so far as the knowledge and belief of this deponent can go ; but in wliieh 
 this deponent has had no material agency, except in the selection of eight names of 
 presbyters from whicli the court might be chosen, and whom he, as bishop, avers are 
 among the most experienced and honored clergy of his diocese, and from these eight 
 said complainant, had he chosen, might have discriminated three only as the assessors 
 for his trial. 
 
 And further this deponent saith not. 
 
 Henry J. Whitehouse, Bishop of Illinois. 
 
 And thereupon a motion to dissolve the injunction was filed, and notice given com- 
 plainant's counsel that it would be called up on the morning of the 27th July, at 10 
 A.M. 
 
 ARGUMENT ON MOTION TO DISSOLVE INJUNCTION. 
 
 Tuesday, July 27, 1869. 
 
 Judge Jamesox took his seat at 10 A. M. The court room was filled with interested 
 spectators. 
 
 The Court — I believe it is understood that the motion to dissolve the injunction in 
 the case of Rev. Mr. Cheney is to be taken up this morning. Are counsel ready to pro- 
 ceed? 
 
 Mr. Fuller — I will submit a resolution for the continuance of the hearing based 
 upon aflSdavit. 
 
 Mr. Fuller here read an affidavit of the absence of an important witness, whose depo- 
 sition it was desired to take on complainant's behalf, before the motion should be heard. 
 
 The Court — The affidavit does not give the name of the witness, and must be 
 amended. 
 
 Mr. TuoMPSON — We may desire to amend our bill which was hurriedly drawn. 
 
 The Court — Should a proper showing hereafter be made, it is within the discretion 
 of the court to allow amendments without prejudice to the injunction, but as the case 
 now stands, the motion should be heard upon the papers as they arc. 
 
 Hon. S. Corning Judd then addressed the court in an eloquent and learned argument 
 in support of the motion to dissolve the injunction. He said he appeared not only for 
 the respondents but for the great body of the Episcopal church, and the great majority 
 of the christian people of every name and denomination, because if civil courts '-an in- 
 terfere with religious liberty and the powers of spiritual courts, all were alike inten-sted 
 in the question, and lest they may be subjected to restraint in the exercise of sucli dis- 
 cipline as might be essential for the preservation of their faith, and to protect themselves 
 against the inroads of the vicious and the vile. 
 
 He reviewed the allegations of the bill at length, and contended they were entirely 
 insufficient. He particularly dwelt upon the want of showing of any irreparabic inju- 
 ry, and contended even if deposition were inflicted, the world was still before the com- 
 plainant where to choose. 
 
 He insisted there was a common law of the church as well as a constitution and can- 
 ons thereof, and that at common law, offences might be proceeded ft>r as well as under 
 the statute. 
 
 The constitution and canons, general and diocesan, occupy the relation of articles of 
 submission to arbitration in all matters of discipline and complainant is a party to and 
 
40 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 bound by them. He therefore agreed to the mode of selecting assessors and the 
 action of the standing committee in selecting the respondents was his action. No 
 right of challenge exists unless the selection provided for be such. Again the assessors 
 are side judges, next in authority to the bishop who may preside as judge. As to the 
 meaning of the w^ord "assessors," he referred to Webster's and Worcester's diction- 
 ary. Challenge is not allowed where a judge passes on focts, as in courts Maritime and 
 in Equity. The assessors in this instance are lilte Masters in chancery. He referred to 
 the senate sitting as a High Court of Impeachment as analogous, and said the right of 
 challenge was not allowed there. The right to challenge a judge was an absurdity ; 
 counsel might as well challenge this court because the injunction was granted by it.- 
 
 The CouBT — I may state that I have not formed an opinion generally, but only that 
 the case made by the bill justified the issuance of the w^it in the first instance. 
 
 Mr. JUDD — Said he did not mean to be otherwise understood. As to the objection 
 to the commission the accused had nothing to do with that paper. An accused might 
 as well go behind the venire to summon a grand jury. 
 
 As to twenty days service of citation and thirty of notice for trial, the canon was sub- 
 ject to no such construction. Why give the accused two notices? The intention of the 
 twenty day restriction was to ensure twenty days over and above time for travel after 
 service and before appearance. 
 
 By section 7, the court is constituted by the appearance " of the requisite number " 
 which could only be upon selection and they are then to proceed with the trial wiiich 
 shows it was not intended that thirty days notice should then be given. 
 
 Counsel contended that there had been a legislative construction of the canon in sup- 
 port of his views. The w"hole matter was brought before the convention of 1863 which 
 published the bishop's answer, and Judge Arington's argument in the Hager case as 
 part of the journal and declined to take other action. 
 
 Mr. JuDD again denied that irreparable damage would or could result in the prem- 
 ises, and cited Mobertson v. Bullions, 1 Kernan 265, to the point that Mr. Cheney's parish 
 might employ him non obstante deposition. The irreparable injury to avert which Equity 
 will interfere must be to property, 6 John. Ch. 499, 2 Stock. 70. Equity will not interfere 
 to protect character, 8 Paige, ch. 24/ Ston/s Eq. Jiir., S. 948 a. 
 
 Conipt. avers he believes himself not guilty of any offence, but he don't say he did 
 not omit the words. He relies on technicalities. 
 
 Civil courts in any case shoixld not interfere until after judgment, and only then when 
 civil rights are involved, and the ecclesiastical court had no power to act at all. 
 
 Tlic objection that the proceedings are void because the commission shows that the 
 bishop is proceeding upon " credable information " and not "public rumor" or other 
 ground is answered ^irsi, by the fact that the ground alleged is equivalent to. "public 
 rumor " ; second, that the 1st section of canon 20 is not restrictive, and was not intended 
 to be. The canon refers to the "mode" of t Hal not of proceeding anterior thereto. 
 In the specified cases the bishop must proceed ; otherwise he may or may not, as he 
 chooses. The bishop has power inlierent in his office to exercise spiritual discipline. 
 
 His power comes from the Lord of Hosts ; his commission as a successor of the apos- 
 tles comes from the Blessed Saviour who promised to be with them " even unto the end 
 of the world," and declared "whatsoever thou shalt bind on earth, shall be bound in 
 heaven ; and whatsoever thou shalt loose on earth, shall be loosed in heaven ; " whose- 
 soever sins ye remit they are remitted unto them ; and whosesoever sins ye retain, they 
 are retained." XVI Matthew 19 ; XX Jolni 23. These quotations refer undoubtedly 
 to discipline. 
 
 The learned counsel here referred to Van Espcn's work on the canons, Venetian 
 edition of 1754. Part III, Tit. IV, p. 42, and read from the original, the definition of a 
 bishop's powers, contending that the bishops still possessed them. Also Hanks on Const, 
 and Canons 59, 60, and the authority cited in the answer of the bishop in the Hager 
 
TRIAL OF REV. CHARLES EDWARD CHENEY. 41 
 
 case; also Hale's Precedents in Grim. Cases 57,58. "The Episcopate" by H.D. Evans 
 pp. 11, 154, et scq., 1 Blkst., 382. Const and Canons Can. 1, Sec. 1, Tit. II ; Cauon 13, 
 Tit. 1, Sec. XI. Hoffman 305 ; Hanks 339. 
 
 It thus appears the bishop has authority outside of the canon, and if so, these pro- 
 ceedings must be upheld. The objections to the presentment amount to nothing^ ; upon 
 criminal indictments, any time may be proved within the statute of limitations. 
 
 Same averments in precedents in Hoffman's notes on the Penal Law of the church, 
 pp. 93, 96. As to jurisdiction, respondent had it by ])lea of not guilty duly entered ; 
 and by exceptions which were filed to the presentment, Hale's Precedents 57 ; Brineler 
 V. Dawson, 4 Scam. .541, 2S III, 70 ; 33 III, 518 ; 35 III., .53 ; 37 Itt., 306. 
 
 Finally civil courts, will not interfere with courts spiritual in anj- manner ■whatever. 
 In cases where civil or property rights are involved they may inquire whether there 
 was power to act at all, but even then will be governed by the construction by ecclesi- 
 astical courts of their own law. Hoffman, p. 473 ; Oer. R. Ch. v. Scibert 3 Barr. 291 ; 
 Harmon v. Drcper, 1 Speer^s Eq., 120 ; Wnllnce v. Walmoright, 16 Barb., 486 ; RobcrUon 
 V. Bullions, 9 Barb., 64/ Shannon v. First, 3 B. Man., 2.58. 
 
 \ Blkst., Z Id, Z1V>; I Story's Eq., Jur. § .596; 21(1.,% 898/ 1 Waterman' s Eden Yl%. 
 2 Burr. 813 ; 3 Blkst. 112 / 3 T. R., 4 ; Eden on Inj.. 3. 
 
 George W. Thompson, Esq., opened the argument for the complainant. 
 
 He nlhuled to the reluctance with which tliey had yielded to the necessity of coming 
 into this Court because they might be considered by some as applying to the civil conrts 
 to interfL're with its strong arm with the independence of the Church. He insisted that 
 it was no interference with the legitimate independence of the Church, that they had 
 exhausted every effort in their power to secure a fair mode of trial under the Canons and 
 law of the Church. We fully recognize the rule that " the Church should settle its dis- 
 putes according to its own rules, " but Avhen in bold violation of the law and Canons of 
 the Church, forming alone the federal relation into which he entered, a presbyter is about 
 to suffer pecuniary, and civil loss, with no remedy or other protection against the 
 usurpation, the civil power must interpose to prevent the wrong. 
 
 We insist that it is no interference in sacris, but with an arbitrary and capricious at- 
 tempt in the name of the Church and contrary to its laws, to entail degradation and 
 civil injury upon our client. 
 
 We have come into this Court to protect the Rector of Christ Church against unlaw- 
 fnl proceedings, seeking to silence his lips, and to strike from his hands the weapons of 
 his christian warfare. 
 
 We feel it our duty to protect him. We would save him to the hundreds of souls 
 whom he has gathered into the fold of Christ, as well as to hosts of others seeking his 
 hand to guide them thither. We would save him to those seven hundred children whose 
 little feet come pattering to his Sunday Schools. We would save him to the Church at 
 large, and if he is to be silenced and crushed, we are determined that it shall be done 
 according to the law of the church, which is ample for all correction and discipline. 
 
 Mr. Thompson then reviewed the proceedings before the so-called Ecclesiastical Court, 
 in detail, together Avith the efforts to secure an acceptable court, and argued, 
 
 1. That the respondents Avere proceeding contrary to the provisions of the canon 
 which as constituting the stipulation between the parties must be oljserved by each : 
 
 2. That it was monstrous to deny the right to an impartial tribunal. That the com- 
 plainants counsel had made every effort to obtain such informally and personally, and 
 the right of challenge ought not to be, and could not be denied. That the law of the 
 land prevailed and must be observed if the canon did not otherwise provide. 
 
 3. That the respondents had no jurisdiction whatever to try the complainant. The 
 1st section of Diocesan Canon XX was clearly restrictive and it was not pretended that 
 the bishop was proceeding upon cither of the three indicated sources of information. 
 
42 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 He read from the opinion of Chief Justice Wilson in tlie Hager case as decisive upon 
 the question. 
 
 As to the publication of the bishop's answer and Judge Arrington's argument that 
 was no legislative construction to the contrary for the opinion of Judge Wilson was also 
 published. 
 
 That it was proposterous to urge in this land at this day, the doctrine that the Bishop 
 had inherent power to degrade his clergy, outside of the Canons of the Church. It was 
 not possible that through mere caprice, and of his own motion, the Bishop can call up 
 a presbyter out of the harvest held of his labor and depose him at will, that the law and 
 Canons of the Church had limited, and cut off all such power, and that the Hager case 
 so settled it, and was conclusive of the case at bar. 
 
 4. That the presentment was fatally defective. Time and circumstances must be 
 alleged. It Avas impossible to make a defence covering a period of two years and two 
 hundred or more baptisms. 
 
 He read from Hoffman on the Law of the Church, in support of this point, and argued 
 further that the presentment did not charge any offence under the constitution or 
 canons of the church, nor any against the engagement to conform to its doctrines and 
 worship. We could not traverse the charge, nor confess it. 
 
 5. That the defendants were hurriedly proceeding to degrade complainant, and thereby 
 irreparable injury would come upon him. Civil courts always interfered in such cases, 
 for the complainant has no other remedy to prevent the wrong. 
 
 The learned counsel read in support of this position the leading case of Smith v. Nel- 
 son, 18 "Vermont, and concluded his effort with an appeal to the court on behalf of 
 his client with whom he had been personally asssociated in church labors for many 
 years. 
 
 Hon. Melville W. Fuller — It is now 4 o'clock. Did the court intend sitting late 
 this afternoon ? 
 
 The Court — Yes sir. That was my intention. 
 
 Mr. Fuller — I shall be compelled to ask the indulgence of the court. On account 
 of sickness in my family, I would like to get away at 5 o'clock. 
 
 The Court — The court will adjourn at that hour, of course, under such circumstances. 
 
 Mr. Fuller — Then commenced the closing argument against the motion to dissolve. 
 He deprecated the assertion of liis friend, Mr. Judd, that he appeared for a majority of 
 christian people. It was to be remembered that history was full of instances of oppres- 
 sion in the name of Christ. He (Mr. F.), believed himself to appear for Christian peo- 
 ple also, and he represented more than them ; he represented that harvest field in 
 which the laborers were so few and an earnest laborer in that harvest, and the question 
 was whether the sickle was to be stricken from the hand of his client and he prevented 
 at the last day from coming, bringing his sheaves with him. (Applause.) 
 
 The Court — I shall be under the necessity of clearing the court of all spectators 
 unless anything like applause be avoided. It cannot be permitted. 
 
 Mr. Fuller — Then proceeded to argue : 
 
 1. That ecclesiastical tribunals are limited in authority to the law under which they 
 act, and when rights of property or even of public concern are invaded by illegal acts, 
 the party is entitled to relief in civil courts, as in ordinary cases of injury resulting 
 from the violation of a contract or the fundamental law of a voluntary association, and 
 cited: Watson vs. Avery, '2, Bush. 336; Smith vs. Nelson, 18 Verm. 511 ; Laio Rep. Dec, No. 
 1855/ Brosius vs. Reuter, 1 H. and J., 551,' Rankle vs. Winemuller, 4 liar, and McH., 
 429/ Green vs. African Meth., Epis. Ch., 1 S. and R. 254/ Comm. vs. Green, 4 Wharton 
 531/ State vs. Crowell, i JIaJst., 391/ People vs. Steel, 2 Barb. 897/ Bm-r vs. Sandwich, 
 9 Mass. 287/ Thompson vs. Rehoboth, Cong., Soc, 5 Pick, 469/ Thompson vs. Lame, 7 
 Pit-it., 169 / STieldon vs. Caston, 24 pick. 281.' HoIUs St. Church vs. Pierj^ont, 7 Met., 495 / 
 St. Luke's Ch. vs. Slack, 1 Cush. 226/ Vestry, &c., vs. Matthetos, 4 I>essaitsnreol7 ; also the 
 
TRIAL OF REV. CHARLES EDWARD CHENEY. 43 
 
 authorities cited Contra ; Dreper^s case 1 Spcer's Eq. ; SeBerCs case, 3 Barr ; Walker 
 vs. Wainivrif/ht, 16 Barb. 
 
 2. The pursuit of an avocation is property in itself, and the office of a clergyman, a 
 matter of public concern, as well as one of emolument, and on either of these grounds, 
 courts will interfere to prevent or redress illegal deprivation thereof. 
 
 In re Dorsey, 7 Porter 3S1 ; Amer. Laio Hep., Dec, 1855 ; Rex vs. Barker, 3 Burr, 
 1265; St. Luke^s Ch. vs. Slack, 7 Cush., 226. At this point the court adjourned to 
 Wednesday morning at 9 o'clock. 
 
 Wednesday, July 27, 1869. 
 
 Mr. Fuller resumed his argument : 
 
 3. The iuterTerence of the civil court will take the shape of injunction when the 
 case made shows that the complainant is threatened with illegal action, the result of 
 which will be irreparable injury, or injury for the redress of which tliu remedy at law is 
 inadequate. 
 
 To be adequate the remedy must be equivalent to the complete restoration of the 
 statiis qito. 
 
 If the damage cannot be measured, the injury is irreparable ; and so if the subject 
 matter will be destroyed even though the damages can be ascertained. 
 
 4. The injury threatened here is deposition. Such a sentence works irreparable in- 
 jury, even though illegal. 
 
 Tit. II, canon 10, sees. 1 and 2 ; canon 3, sec. 2. He can not only not officiate in this 
 diocese, but not in any other. Nor can the bishop of any other diocese go behind the 
 sentence though it may be null and void. His parish must leave him. His profession is 
 at an end. 
 
 ' The counsel then recapitulated the allegations of the bill, the answer and the Bishop's 
 affidavit, and argued that it was determined to inflict deposition, and there was no 
 appeal. 
 
 5. English Ecclesiastical cases are not altogether in point, because there such courts 
 are created and regulated by law, and the right of appeal given. 
 
 Gorham\t case in the Court of Arches and before the Privj' Council was cited. 
 
 The writ of prohibition furnishes an analogy, and where that would issue in Eng- 
 land injunction should here. 
 
 Oover vs. Oapper, 5 East. 364 ; Thoma.'s vs. Mead, 36 ]Hm. 248 ; 1 P. Williams 272 ; Fitz 
 HerberVs Natura Brevium, Tit. Prohibition ; Appo^s case, 20 ^V. York 542. 
 
 Injunction is frequently granted where public functionaries exceed the limits of the 
 law. Frevier vs. LewU, 4 M. and C. 258 ; and has issued against church trustees to pro- 
 hibit the election of a minister not duly licensed by the church ; MiUi<jaii vs. MitchcU, 1 
 M. and K. 446. 
 
 Mr. Fuller then proceeded to the examination of the proceedings of the ecclesiasti- 
 cal tribunal, insisting that the respondents had no jurisdiction over the subject matter 
 or to proceed to try the complainant at all. 
 
 First. Art. 6, general constitution, provides that the mode of trying a presbyter shall 
 be prescribed by the respective diocesan conventions. 
 
 Sec. 1, canon XX, Diocese of Illinois, prescribed that proceedings could be int^tituted 
 by the Bishop on one of three defined grounds. Sec. 10 declares that nn presbyter can 
 be subjected to suspension or censure unless " adjudged thereto " as provided in the 
 canon. 
 
 As neither of these grounds existed in this case, the respondents were without juris- 
 diction. WUson, C. J. Mar/er^s case. 
 
 In courts of special creation and limited jurisdiction the facts necessary to give juris- 
 diction must be alleged. 
 
 Broome's Maxims, 581 .• 3 GreenJ.. Ev. .504; Be Hart on Militarif Lav, 111 ; 3 Att. Gen. 
 Opinions pp. 398, 544, 4 Scam. 88; Benedi^Vs admiralty, 402; 6 Foster 652. The citation, 
 
44 TRIAL OF REY. CHARLES EDWARD CHENEY. 
 
 commission and presentment here not only did not show jurisdiction, but atfirmatively 
 established the contrary. That this is a court of "special creation and limited jurisdic- 
 tion," will not be denied, and it is so asserted by Bishop Whitehouse in his letter to 
 Hager. 
 
 Second. The complainant was entitled to be tried by an impartial tribunal. 
 
 Want of impartiality vitiates : Smitli vs. Nelson, 18 Ver?nont, 511 ; Thompson vs. Reho- 
 both, C. Soc, 7 Pick., 160. In obedience to the principles of right and justice, this is 
 always so held. 
 
 The right of cliallenge was denied in this case. By the Bishop, first (see correspond- 
 ence); by the assessors afterwards. 
 
 It should have been granted. The right is universal. At common law, 3 Blkst., 354, 
 4 Blkst , 353. By the civil and canon law : Concet on Ecc. Courts, p, 69; OughtoTi's Ordo 
 Judiciorum, p. [2, V6, Clarke's Praxis, Tit. \0\. By military law ; De Hart on 31. Law, p. 
 135, et seq., Opinions of Att. Gen., p. S97. Church law: TrapnelVs case. It was not 
 denied in the Senate sitting as a court of impeachment, though that trial is not analo- 
 gous. (3 voh. Imp. Tried Pres. Johnson, jyp. 361, 374.) 
 
 Counsel then discussed canon XX., and insisted its provisions were framed in view of 
 the exercise of this right, and granted peremptory challenge in terms. 
 
 Third. The presentment was void, ipso jure, for want of suflScient amount of time 
 and circumstances. The allegations were that the alleged offence was committed 
 within six and twelve months and two years. No circumstances were set forth. 
 
 It was fatally defective according to the criminal law : 1 Chittt/s Cr. Law, 217, et seq. 
 Civil and canon law : Concet, p. 79, Oughton, p- 163, Waddilove''s Dig., 80. Military law, 
 De Hart, p. Ill, 3 Orecnl., 506; Episcopal church law, Hoffman, p. 401 ; Id. Ecc. Law, 
 477. It was impossible for complainant to prepare to prove his innocence under so 
 indefinite a presentment. He could not tell what witnesses to summon. The judg- 
 ment would be no bar. 
 
 Fourth. No offense was set forth. The claim that the canons were amended in 1868 
 so as to make these charges constitute offences was uusustained by legal evidence of 
 the amendment. The journal of 1863 had never been published, and no amendment 
 could go into effect until then. If in effect at all it was within six months, und the 
 presentment ez post facto and void. 
 
 Fifth. No notice of time and place of trial had been given. Counsel inferred from 
 the canon that the citation was intended to be solely to " appear and answer," and after 
 the court was selected and the preliminary questions adjusted, then time of trial was to 
 be fixed. He contended this was the practice under the common and civil law. 
 
 Mr. Fuller insisted that if on the whole case the complainant showed equities, he 
 was entitled to amend. On a motion like this the chancellor would balance the incon- 
 veniences, and if the consequences to the complt. of a dissolution were more serious 
 than those of the continuance of the injunction to the defts., the injunction would be 
 retained until the hearing. 
 
 The position on the other side of " waiver" was untenable. Consent could not give 
 jurisdiction. There was no such thing as waiving an objection to jurisdiction over the 
 subject matter which was the jurisdictional defect in this case. 
 
 As to the claim that complainant did not assert his innocence, and so had no stand- 
 ing in a court of Equity ; it was preposterous. The presumption of innocence pro- 
 tected him, and besides he averred it in the bill that he was guiltless. And the pro- 
 ceedings upon their face showed that he had committed no offense. The doctrines of 
 the church demanded the omission and usage justified it. The Episcopal church has 
 not reached Rome yet, and until it does these charges cannot be sustained. And it was 
 ridiculous to argue that the bishop prosecuted him for this omission. The protest was 
 the key to this proceeding. And he was in any event entitled to a foir trial ; to be 
 tried by his peers which partial judges could not claim to be. 
 
TRIAL OF REV. CHARLES EDWARD CHENEY. 45 
 
 It was an outrage to say tliat a clergyman could be dragged up before five men, utter- 
 ly void of authority to try him and subjected to pains and penalties without sight of 
 appeal or other remedy, and when he applies for relief, it is to be denied unless he con- 
 fess guilt or assert innocence, which is the precise question he wishes determined, and 
 has a right to have determined in courts of his church," as respondent's counsel admit. 
 
 He commended this case of his client to the careful consideration of the coiu-t. He 
 had set forth his innocence. He had shown on the bill that he had done nothing worthy 
 of stripes. God would send him such deliverance as he might choose to voiiclLsafe. If 
 his course found favor in His eyes, it mattered little what man might do to liiui. 
 
 Hon. William C. Gouby, addressed the Court on behalf of the motion. 
 
 His clients had no interest, pecuniary or personal, in the premises. They only desired 
 to discharge their duty. The liev. Complainant asserted that all he desired was an im- 
 partial trial. He had taken no steps to secure it, except his counsel had addressed a 
 getter to the Bishop, knowing what his answer must be, in pursuance of a concocted 
 plan to put the Bishop seemingly in the wrong. Why did not the Complainant attend 
 the meeting of the Standing Committee to select five presbyters to try him, or write to 
 the designated eight, if he wished to know their opinion ? This waiting until July 21st, 
 was all part of a game. 
 
 The first inquiry of a Court of Equity is, does the Complainant come with clean 
 hands ? 
 
 The Complainant nowhere denies that he has omitted the words in question. He no- 
 where admits it. He nowhere admits his innocence. If the parties are in pari delicto 
 even, the bill will be dismissed. 
 
 Other defects exist in this Bill. It is conceded that Christ Church is a corporation. 
 
 The article in the Law Reporter treats of mandamus, which will lie to restore an offi- 
 cer of a corporation illegally displaced, but there is no allegation of corporate existence 
 here. 
 
 As to Complainant's salary, the contract thereto, is not set forth. Even if it were 
 and the averment of the acquisition of education for the Ministry be considered, still, 
 how is he threatened? He may be acquitted. What is there to show that he will neces- 
 sarily be deposed ? True, threats on the part of the Bishop are alleged, but it is not 
 claimed the Respondents were parties thereto, and the Bishop himself denies them. 
 Respondents deny also that they are under the Bishop's influence. The salary would 
 not be endangered even if deposition were inflicted, if the proceedings be void. And the 
 application is in any aspect, premature until judgment. 
 
 The danger to receipt of a salary does not, however, justify this Court's interposition. 
 Judge Wilson so holds in the opinion so frequently quoted. 
 
 It is a part of a clergyman's engagement, that his salary shall depend on his conform- 
 ty to the creed and rules of the Church, and by implication that these rules shall be ex- 
 pounded by the Church authority. In theoiy, at least, the minister's reward is in the 
 Hereafter. The Apostles took neither scrip, nor purse. This bill is framed in a far dif- 
 ferent aspect. The salary must depend, however, on the exposition of Church tribunals 
 of Church rules. Shall infidel Judges become the expounders of Christian laws? 
 No Civil Court ever did, or ought to interfere in matters of Church discipline. 
 
 This bill avers no fraud, no conspiracy. It shows no threatened injury. The answer 
 should be accepted as true, and avers that the Respondents were acthig in good faith. 
 
 The elements of irreparable injury are not set up. Injury to reputation can not be so 
 redressed. 
 
46 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 Is there pecuniary damage? The Complaiuant, even if deposed, can still preach the 
 Gospel. 
 
 The wi-ongs complained of are merely that the Bishop did not say, as he might, that 
 h9 was proceeding on " public rumor ;" that the citation did not say its return day was 
 the day of trial ; that the presentment did not allege a day under a scilicet ; that the 
 Complainant was not permitted to investiicate the opinions of the assessors. The idea 
 that the services of a Clergyman are of such a nature that deposition is irreparable in- 
 jury, is not sustainable. Only the execution of the sentence can be enjoined in any 
 event. 
 Law affords a remedy for aught that appears on the face of this bill. 
 Prohibition only lay where one Court interfered with the jurisdiction of another. It 
 has not application here. 
 
 ^ case might exist to enjoin the presenters, or the Bishop, but never the members of 
 the Court, as here. 
 
 As to the proceedings of the ecclesiastical Court. Did the Respondents have jurisdic- 
 tion of the subject matter, and of the person ? 
 
 The Commis>ion forms no part of the proceedings. The presentment being found, 
 the Bishop shall cite the accused, who shall select assessors, or the Standing Committee 
 shall do so for him, and so the Court is constituted. The Court is one of general juris- 
 diction, but of special creation. The only facts necessary to show its jurisdiction are 
 the presentment and the selection. The complaint is of an irregular exercise of power 
 by the Bishop, not a want of it. The Commission was, however, sufficient. 
 
 All disciplinary power is in the Bishop, and Canon XX. is no restriction. He must 
 proceed as there named. He may proceed in other cases. Judge Wilson's decision as 
 to this was but a dictum. 
 
 If the presentment were objectionable, it was for the Church Court to determine that 
 question, and its decision is conclusive. But the presentment is sufficient, as the place 
 is named ; the time is immaterial, and the accused can learn the particular instances 
 from his Parish Register. 
 
 The exceptions to the presentment were equivalent to a demurrer, and constituted a 
 waiver. 
 
 As to the right of challenge, it did not exist. The assessors were judges, not jurors. 
 There was no mode by which the question could be determined. The Canon is the sole 
 law and permits no such thing. 
 
 The construction of the Canon by the Bishop, in 1863, was approved by the Conven- 
 tion of that year, and is conclusive. 
 
 Civil Courts will not interfere with matters of discipline, whatever the consequences. 
 If, after judgment, any civil right were affected, the Civil Court might investigate, 
 to see whether there had been power to proceed. 
 This Court might as well interfere with the County Court. 
 
 The Coubt. The point is, is there a right of appeal ? If there were a right of appeal 
 here, the case might stand differently. 
 
 Mr. GouDY. There must be a final decision in every cause. A writ of certiorari lies 
 to proceedings of an inferior Court ; injunctions never. No Court will interfere with 
 proceedings of a Board of Trade, or Base Ball Club, to see whether questions have been 
 properly decided. Religious freedom cannot be interfered with under our Constitution. 
 It cannot be enjoyed, unless religious organizations are protected, and not interfered 
 with. 
 
 Mr. GouDT trusted the Court would be influenced by an enlightened Christian reason, 
 and guided by the Father of us all, to promote the cause of our Saviour, repress schism, 
 and protect religious freedom. 
 
 The Court took the case under advisement. 
 
TRIAL OF REV. CHARLES EDWARD CHENEY. 47 
 
 Tuesday, Aug. 3d. 
 
 The Court announced that the motion to dissolve the injunction was overruled, and 
 gave briefly th" ground; of the decision, stating that tlie views of tlie Court would be 
 subsequently given in writing. 
 
 The opiuiou of his Honor, Judge Jameson, was afterwards filed in the cause, and is a8 
 follows : 
 
JUDGE JAMESON'S DECISION. 
 
 ^ This is a motion to dissolve an injunction, based upon the bill, 
 answers and the affidavit of the Rt. Rev. H. J. Whitehouse. The 
 injunction was allowed without notice to the respondents, upon the 
 suggestion of extreme urgency, and as the effect was to suspend in- 
 definitely the proceedings of the respondents claiming to act as an 
 ecclesiastical court, I have felt it due to them to grant an early 
 hearing of this motion and to decide it as soon as possible, consist- 
 ently with a thorough examination of the very important points of 
 law involved. 
 
 The questions raised in the case are mainly questions of jurisdic- 
 tion; first, of this court, to interfere with the proceedings of a court 
 spiritual ; and, secondly, of the court whose proceedings have been 
 enjoined, to sit as such, or to take cognizance of the offense charged 
 to have been committed by the complainant. Before proceeding to 
 consider these questions, I think it proper, in view of the prevalent 
 misconceptions in regard to the conditions and limits of the right of 
 the civil courts to intervene in ecclesiastical cases, to restate with 
 precision what claims are advanced by those courts, and what are 
 not ; and, to make it certain, that I do not exaggerate their power, 
 or assert it in cases in which it does not exist, I shall confine myself 
 to citations from the opinions of eminent American authorities. 
 
 In the case of Smith vs. Nelson, 18 Vt., 549, the late Chief Jus- 
 tice Williams, after describing the ecclesiastical judicatories of 
 England, forming a co-ordinated system with that of the civil courts, 
 ending in, as they emanated from, the King, the head of both 
 Church and State, says of tribunals bearing the name of ecclesiasti- 
 cal courts in our churches in America : — 
 
 " In this State, the case is wholly different, we have no 
 4 
 
50 JUDGE Jameson's decision. 
 
 religious establishment, no ecclesiastical law, or courts, es- 
 tablished by any authority. All their laws are wanting in 
 this essential requisite, to give them any authority, that they 
 are not '"prescribed by the Supreme Power in a State.' And 
 though they may form constitutions, enact canons, laws or ordin- 
 ances, establish courts, or make any decisions, decrees, or judg- 
 ments, yet they can have only a voluntary obedience, cannot affect 
 any civil rights, immunities, or contracts, or alter or dissolve any 
 relations or obligations, arising from contracts. When their pro- 
 iCeedings are to be examined by ordinary tribunals of justice, their 
 .power is a phantom, and they can receive no other consideration, 
 than the regulations of any other voluntary associations, formed for 
 trifling, or grave and important purposes. Obedience to the requisi- 
 tions of any ecclesiastical societies may be required, under penalty 
 of spiritual censures; but this is the only penalty incurred by diso- 
 bedience; and-whether one submits to, or defies, the proceedings of 
 :any ecclesiastical court, or any censures passed by them, depends 
 on his conviction of the regularity, or irregularity, of their proceed- 
 ings." 
 
 The learned judge then proceeds to show by cases from the 
 English and Scotch Reports, that the proceedings of an ecclesiasti- 
 cal court in England arid Scotland may be inquired into collaterally, 
 and that when they proceed illegally, even those who pronounce 
 their decrees are not exempt from responding for damages which 
 • an individual may sustain in consequence of their illegal acts. He 
 "then proceeds : — 
 
 " And, surely, if the proceedings of an ecclesiastical court, 
 .known to the law, may be a subject of inquiry in the courts 
 of Great Britain, and Scotland, and the parties injured may 
 have redress in the civil courts by action, the proceedings of any 
 ■self-constituted ecclesiastical tribunal, not recognized as a part of 
 our jurisprudence, may be examined, disregarded, and declared void, 
 whenever the subject comes before our courts of law, whether direct- 
 ly or collaterally." 
 
 To he same effect, may be cited an article in the Monthly Law 
 Reporter, for December, 1855, attributed to the Hon. Richard H. 
 Dana, of Boston, and containing a most able review of the law on 
 this and collateral questions. The author thus speaks of the point 
 now under examination : — 
 
 " An objection may Tse raised, that the civil courts will not 
 
JUDGE JAiMESOn's DECISION. 51 
 
 interfere in ecclesiastical cases. The answer is, that if the 
 spiritual office is one that draws after it temporal ei.''^Iument, 
 or that concerns the public, the civil courts must vindicate the 
 public or private right, although in doing so they may incidentally 
 be obliged to decide on some questions of ecclesiatical law." 
 
 After adverting to the difference between English ecclesiastical law, 
 
 and our own, and to the confusion that has arisen in these cases from 
 
 a want of attention to it, he continues : — 
 
 " But in this country there is no legal tribunal for ecclesiastical 
 law, — what we call ecclesiastical courts, in the different denomi- 
 nations, being merely voluntary bodies acting by agreement of 
 parties. Hence, the question of collision between legal tribunals 
 does not arise in America. If there are rights, public or private, 
 to be enforced, they can be enforced only in the civil courts." — 
 Month. Law Rep., for Dec, 1855, p. 427. 
 
 So, the late learned Chief Justice of this Court, Judge Wilson, in 
 deciding a motion to dissolve an injunction in the case of the Rev. 
 Mr. Hagar, arising in this Diocese, upon a state of facts similar to 
 those in this case, alluding to the jurisdiction of the civil courts in 
 such cases, said : — 
 
 " It (a church) is regarded only as a voluntary association, and 
 its constitution, laws and canons, as stipulations between the parties 
 defining their duties and obligations. The civil rights of all the 
 members are still protected and enforced by the civil tribunals, ex- 
 cept so far as they have been voluntarily submitted to the adjudica- 
 tion of the association of which they are members. For the protec- 
 tion of these rights, the civil tribunals, both legal and equitable, 
 frequently interfere to control the action of Church judicatories by 
 mandamus and injunction, when they attempt to infringe or take 
 away the rights of their members, in a manner, or by proceedings, 
 unauthorized by the stipulation of the parties, as provided in the 
 constitutions, canons, or established usages of the particular church 
 or association, and for these purposes will inquire into, and construe 
 its canons and constitutions. But the Courts, regarding these as 
 contracts between parties voluntarily entered into by becoming- 
 members of the association, will not interfere to prevent the associa- 
 tion from deciding any matter the parties have agreed to submit to 
 the decisions of the members of the association or otherwise, except 
 when such submission or stipulation contravenes some principle of 
 public policy, or is against good morals." — Appendix to 12th An- 
 nual Address of the Bishop of Illinois, p. 97. 
 
 The grounds and limits of a rightful interference of the civil 
 
52 JUDGE Jameson's decision. 
 
 with the ecclesiastical tribunals of our country, are still more explicit- 
 ly stated by Edmonds, J., in the case of Walker vs. Wainwright, 16 
 Barb., 487 — in which the ad interim bishop of New York was the 
 party defendant. He said: — 
 
 '' The only ground on which this court can exercise any jurisdic- 
 tion in this case is, that the threatened action of the defendant 
 may affect the civil rights of the plaintiff, for the protection 
 of which he has a proper recourse to the civil courts. * 
 ***** Conceding * * * t)jat here is ground enough 
 for the action of this court, it becomes material to say that the 
 only cognizance which the court will take of the case, is to inquire 
 whether there is a want of jurisdiction in the defendant to do the 
 act which is sought to be restrained. I cannot consent to review 
 the exercise of any discretion on his part, or at all to inquire 
 whether his judgment or that of the subordinate ecclesiastical tribu- 
 nal can be justified by the truth of the case. I cannot draw to my- 
 self the duty of revising their action, or of canvassing its manner 
 or foundation, any further than to inquire whether, according to the 
 law of the association to which both of the parties belong, they had 
 authority to act at all. In other words, I can inquire only whether 
 the defendant has the power to act, not whether he is acting 
 rightly." 
 
 Were the authority of these jurists denied, that of the eminent 
 ecclesiastical writer, Murray Hoffman, would be conceded, whenever 
 the question should be as to the relative powers of the civil tribu- 
 nals and of the so-called courts of the Protestant Episcopal Church. 
 After speaking of the writ of prohibition in the English law, and of 
 its finding no place in our jurisprudence, this author says : — 
 
 " Our courts of justice act (upon the ecclesiastical courts) through 
 the medium of a mandamus, or.a bill and injunction in those cases in 
 which the right to property and civil privileges is involved." — Hoff. 
 on the Law of the Church, p. 473. 
 
 I have cited thus at length these authorities — and I might multi- 
 ply them indefinitely — because of the confusion in the public 
 mind in regard to the right of a civil to interfere at all with a 
 spiritual court, even to protect a civil right threatened by its wrong- 
 ful action, as though such interference in some manner touched the 
 liberty of conscience. The true boundary between the two ju- 
 risdictions will be found to have been laid down in the maxim em- 
 
JUDGE Jameson's decision. 53 
 
 bodied in the statute 24 Hen. YIII, that "causes spiritual, must be 
 judged by judges of the spirituality, and causes temporal, by tempo- 
 ral judges;" a maxim which lies at the foundation of all the adjudi- 
 cations of the civil courts in this country in such cases. If a cause 
 temporal come properly before a civil court, it must entertain juris- 
 diction of it, and render such a judgment as the law authorizes and 
 requires, although, in doing so, it may draw in question the proceed- 
 ings of a court spiritual, acting contrary to law, or to the rules of 
 its own order. And a tribunal which should refuse to redress a 
 wrong coming thus within its cognizance, because it assumed to 
 cloak itself in the sacred garb of religion, would be recreant to its 
 duty. 
 
 The questions, then, here, as I view the authorities, are, first, 
 was the so-called ecclesiastical court, when enjoined, acting within 
 its jurisdiction — had it power to do the acts complained of? and se- 
 condly, is there dignus talivindice modus? — a threatened wrong, such, 
 in its nature and extent, as to warrant and justify this court in in- 
 terfering to arrest it ? As the respondents deny the jurisdiction of 
 this court, and the complainant, that of the ecclesiastical court, it 
 will be proper to adopt a method of discussion which will throw upon 
 the complainant, to whom, on this motion, it belongs, the burden 
 of showing that the ecclesiastical court had not, and that this court 
 has, jurisdiction. To establish these positions, three things must 
 concur. It must be shown, 1, that the spiritual court was acting 
 iiltra vires; 2, that the result of their action was likely to be — threat- 
 ened to be — the condemnation of the accused, and the visiting upon 
 him of some spiritual censure ; and, 3, that the consequence of such 
 censure would be irreparably injurious to the complainant, in respect 
 to his temporal interests, to his rights of property. 
 
 In thus defining the law, I admit the authority of those decisions 
 in which it has been held, that a court of equity will not interfere 
 by injunction to restrain the publication of a slander or libel, or the 
 commission of a mere trespass to the person or property of a com- 
 plainant, or of a crime. For these wrongs, a court of law is com- 
 petent to provide an adequate remedy, and so they cannot be followed 
 
54 JUDGE Jameson's decision. 
 
 hj consequences irreparably injurious to liim who suffers them in 
 the legal sense of those terms. 
 
 Let us see, then, if the conditions necessary for sustaining this 
 injunction exist in this case. And, first, had the respondents juris- 
 diction, as a court, to try the defendant, as they assumed to do ? 
 
 Objections to their jurisdiction were made by the complainant to 
 the so-called court itself, at the trial, upon several grounds, but were 
 overruled. These were objections, 1, to the commission under which 
 the presentment of this complainant was made; 2, to the citation to 
 appear ; 3, to the personal competency of the assessors to act as 
 his triers, accompanied by the claim of a right of challenge, because 
 of alleged bias or prejudice ; 4, to the constitution of the court, as 
 uncanonical ; and 5, to the presentment, or indictment. 
 
 To the commission, it was objected that it was void, in that the 
 bishop, by whom it was issued, did not therein purport to issue the 
 same upon anyone of the three grounds required by the canon un- 
 der which he pretended to proceed, and which prescribed the only 
 mode in which he could proceed ; that the basis of the Court and of 
 all its subsequent proceedings was thus faulty, and that upon it ju- 
 risdiction could not be taken by either the bishop or standing com- 
 mittee to organize the Court, the presenters to present, or the as- 
 sessors to try the supposed offender. As no other objection need be 
 much considered, if this one be good, I shall examine it at length. 
 
 Canon XX. of the Church in the Diocese of Illinois provides that 
 "Whenever the bishop shall have reason to believe, on information 
 being given by a major part in number of the vestry of any church 
 of which the accused is a minister, or by any three presbj^ters of this 
 diocese entitled to seats in the General Convention, or ' from public 
 rumor,' as contemplated by Section 2d, Canon XXXVII of the 
 General Convention, that any clergyman is under imputation of 
 having been guilty of any offense or misconduct for which he is liable 
 to be tried, and that the interest of the church requires it, it shall 
 be his duty to appoint three persons," kc, to examine and make pre- 
 sentment of the offender. 
 
JUDGE Jameson's decision. 55 
 
 Now, admitting that the offense charged against the complainant 
 is one for which he is liable to be tried in some manner, it 
 is clear, that he could not be tried for it under this Canon, 
 except in accordance with its prescriptions. In other words, 
 to organize a court to try the offender under Canon XX, the 
 bishop must have had reason to believe the existence of the offense 
 from one of the three sources mentioned. And, not only should he 
 in fact proceed on one of the grounds prescribed, but the commission 
 should state explicitly on what ground he pretends to proceed. This 
 latter requisite rests on the principle, that an offender, tried before 
 a court, civil or ecclesiastical, is entitled to have specified in the re- 
 cord of such trial the grounds on which the tribunal rests its right 
 to try, for the purpose, first, of proving his previous conviction if 
 again arraigned for the same offense ; and, secondly, of exhibiting to 
 any other tribunal, authorized to examine into the jurisdiction of the 
 court, the grounds upon which it assumed to proceed. About the 
 former requisite, although disputed by the respondents, there can, 
 in my judgment, be but little doubt. I might rest my decision up- 
 on the authority, so much and so justly esteemed by the respondents, 
 of the late Chief Justice of this court. In his opinion, in the case of 
 the Rev. Mr. Hagar, where the same objection was made, it was 
 ruled by him, upon this point, that the provisions of Canon XX fur- 
 nish an exclusive rule of procedure, whether they are to be taken 
 as a grant of new powers to the bishop, or as a limitation of powers 
 before exercised — a view in which I fully concur. If it were possible 
 however, to doubt that such should be the construction, the doubt 
 would be dispelled by section 10 of the same Canon, which provides, 
 that " no clergyman shall be suspended, or receive any public cen- 
 sure from the bishop of the diocese, Avithout having been adjudged 
 thereto in the manner provided for by this Canon." It is true, the 
 word " deposed" or " degraded" is not used ; but, not to speak of 
 the improbability that the bishop should be forbidden to administer 
 the two lower forms of spiritual punishment, admonition and suspen- 
 sion, except upon a trial in conformity to the Canon, but should be 
 allowed to depose or degrade at pleasure, I think the word " de- 
 graded " or "deposed" is involved in the word " censure," which, 
 
56 JUDGE Jameson's decision. 
 
 in ecclesiastical law, is a technical term. It means " a sentence of 
 condemnation, or penalty, inflicted on a member of a church for 
 malconduct, by which he is deprived of the communion of the 
 church, or prohibited from executing the sacerdotal office." Webster's 
 Diet., verb, '•^censure.'' Accordingly, Hofiman, in his Law of the 
 Church, says : — " The constitution has recognized three kinds of 
 ecclesiastical censure, admonition, suspension and degradation." p. 
 417. It may fairly, therefore, be said to be the meaning of the 10th 
 section, that neither degradation, suspension nor admonition shall be 
 inflicted upon any clergyman by his bishop without his having been 
 adjudged thereto in the manner provided for by Canon XX. But, 
 suppose the words " public censure" are to be taken in their popular 
 sense as equivalent only to " public rebuke,'' the section would read, 
 that "no clergyman shall be suspended, nor even receive a public 
 rebuke or censure, without having been adjudged thereto," &c. 
 Could a public sentence of degradation from the ministry, which, ac- 
 cording to the general constitution of the church, (Title 2, Canon 10, 
 Section 2), must be total, and not merely from a higher to a lower 
 grade, be said not to involve a public rebuke or censure of the of- 
 fender ? 
 
 Conceding this construction to be correct, the commission issued 
 by the bishop to the presenters was wholly void, as beyond his pow- 
 er to issue, or their power to receive. It reads as follows : 
 
 " To the Rev. George F. Cushman, &c., &c. : 
 
 " Having been credibly informed that the Rev. Charles E. Cheney 
 had, in substance, stated," &c., — detailing an interview and conver- 
 sation held by the bishop with Mr. Cheney, — "I, therefore, have 
 reason to believe that the said Rev. Charles E. Cheney is under im- 
 putation of being guilty, &c. * * * Therefore, in obedience to 
 the prescription of Canon XX, of the Diocese of Illinois, I do here- 
 by appoint you, &c. (Signed,) " H. J. Whitehouse, Bishop of Il- 
 linois." 
 
 Here the ground on which the commission was issued was credi- 
 ble information — a ground not contemplated in Canon XX, as dis- 
 tinct from those prescribed, and not synonymous with, or equivalent 
 to, either of them. By whom was the credible information imparted? 
 
JUDGE Jameson's decision. 57 
 
 It is not pretended that it was imparted, in fact, in either of the 
 three modes named in the Canon : by a majority of the vestry of 
 Christ Church, by three Presbyters of the Diocese, or by public ru- 
 mor. Was it credible information imparted by the accused himself 
 or by some enemy of the accused ? It is idle to conjecture, for the 
 facts are not disclosed, unless it may be inferred from the context 
 that the accused himself had imparted it in the conversation referred 
 to in the commission. It is noteworthy, however, that the same 
 form of words, " credibly informed," was used as the basis of the 
 commission in the Hagar case, which was issued under the same Canon, 
 and that it was then condemned by this court as not conformable 
 to that Canon. Why is this indefinite form of words thus adhered 
 to, when probably no case could arise, examinable under Canon XX, 
 in which one of the three forms could not be truthfully followed ? 
 It may be, that the power claimed, on the argument, to be 
 inherent in the Episcopal office, of causing the arraignment of of- 
 fenders ad lihitwji, irrespectively of the prescriptions of the Canons, 
 is too valuable to be relinquished without a struggle, and that the 
 present is deemed a fitting occasion again to assert it, and, if possible, 
 to secure its establishment. as the law of the Church. The counsel 
 for the respondents claimed, that the commission in this case was 
 issued in the form in question advisedly, and that the power to act 
 outside of the Canon, even when pretending to act according to it, 
 was inherent in the Bishop, and the attempt was made to sustain 
 that position by the citation of authorities. I shall not pursue the 
 inquiry at much length, but remark, that, in my opinion, the author- 
 ities cited have but slight tendency to sustain the point. An ex- 
 tract was made from the canonist, Van Espen, to the effect that at 
 some indefinite past time [oUm) bishops exercised the right of mak- 
 ing inquisition into all crimes, even those which were occult, and of 
 instituting proceedings for their punishment. But how much force and 
 applicability the citation has here may be inferred from the title of 
 the chapter, which gives a fair synopsis of its contents : ^'■Quomodo 
 olim Episcopi de omnibus criminibus cognoverint, et quomodo haec 
 Episeoporum auetoritas imminuta." — ^'- How formerly the bishops 
 
58 
 
 JUDGE JAMESON S DECISION. 
 
 took cognizance of all crimes, and how this jurisdiction of the bish- 
 ops came to be curtailed." Op. Om. Can. Pt, III, Tit. IV. Ch. I, 
 p. 42. Reference was also made to " An Essay on the Episcopate," 
 bj Dr. Evans, in which the inherent power of the bishops is strong- 
 ly asserted. This author, however, breaks the force of his argument, 
 for our purpose, by conceding, that the Church has power to regu- 
 late the exercise of the power, provided it do not take it away. If 
 the rule made by the Church be such as to take away the power, it 
 ought not, he says, to be obeyed. To use his own words, 
 
 " The inherent power remains unaffected by the rule. But if it 
 relates to the exercise of the power, it must be obeyed;" and he adds: 
 " The difference is this. Before the rule was made, the power might 
 have been freely exercised, in any manner which the possessor chose. 
 After the rule was made, it could only be exercised in conformity 
 with the restrictions imposed by the rules." pp. 154-155. 
 
 Another authority relied upon to prove that the bishops have the 
 inherent power in question, is Hale's Precedents in Criminal Cases. 
 The passage referred to is as follows : 
 
 " According to the practise of these ecclesiastical courts in 
 criminal causes *********** there are 
 three distinct methods of indictment : 1. Inquisition : 2. Accu- 
 sation : 3. Denunciation. In the first form of proceeding, that by 
 Inquisition, the judge is in fact the accuser. He may proceed 
 against the party from his own personal knowledge, or from com- 
 mon fame of crime committed, and no other step is required to bring 
 the party before the court, except citation." p. 57 of the Essay. 
 
 It is hardly worth while to call attention to the inapplicability of 
 this passage to ecclesiastical courts in our own country. The work 
 cited relates to the jurisdiction and practice of courts Christian dur- 
 ing the period beginning with the 15th and ending with the 17th 
 centuries in England, Avhen, as now, such tribunals were real courts, 
 but when the English people were not yet completely emancipated 
 from priestly rule. The offenses punished in those courts were prin- 
 cipally of the minor grade, such as laughing in church, want of 
 conjugal affection, disrespect to the priests, incontinence both of 
 laity and clergy, and the like, of most of which, I need hardly say, 
 neither the spiritual nor the temporal courts in England are now 
 permitted to take cognizance. Such a mode of trial, properly 
 
JUDGE Jameson's decision. 59 
 
 styled a trial by Inquisition, Avas then tolerated, as it was for many 
 years later in Spain and other Catholic countries. Is it claimed, 
 that with the Protestant doctrines of the Church of England, we 
 have in America adopted this mode of trial by Inquisition — in which, 
 according to the authority cited, the bishop, by virtue of his inherent 
 power, may be at once the accuser and the judge ? Not to press this 
 point, however, I observe, that in one respect the Avork cited is of 
 real service in this inquiry. It is made up of precedents of pre- 
 sentments made to the bishops for the offenses referred to, and from 
 them it appears, that great care Avas taken in each presentment to 
 state the ground on Avhich it Avas based. If it Avas founded on 
 "credible information," communicated by an informer, the form 
 used Avas, "A. '^. notatur officio quod,'" &c. But, Avhere the pro- 
 ceeding was based upon "public rumor," the form Avas, "A. B. no- 
 tatur officio, fama puhlica referente, quod," &c., from Avhich the infer- 
 ence is authorized, that even in the proceeding by Inquisition — the 
 most odious form of ecclesiastical inquiry — it was deemed necessa- 
 ry to state, and that truly, on the face of the record, the source of the 
 information on Avhich the proceeding was instituted. 
 
 It may be urged, that the objection I am now considering is a 
 merely technical one, and that it is suflBcient, if a presentment has 
 been made upon some sort of information, or even on the bishop's 
 OAvn motion, Avithout other information than that derived from his 
 OAvn senses. To this it is enough to reply, that the legislature of the 
 Church has apparently not so vieAved the matter. It has limited the 
 bishop to certain specified cases and modes, presumptively for good 
 reasons. We may suspect one of those reasons to be, to put it be- 
 yond the bishop's poAver to act upon his OAvn motion — upon informa- 
 tion culled, perhaps, from conversations held by himself with the ac- 
 cused, and Avith respect to Avhich the recollections of the tAvo may be 
 at variance. It may have been its Avish to avoid the painful specta- 
 cle of a bishop appearing in a public prosecution as both court, or 
 creator of the court, as here, and prosecuting Avitness, against one of 
 his OAvn clergy. Perhaps it deemed the method of trial by Inquisi- 
 tion, so dear to the religious persecutors of past ages, in Avhich the 
 bishop first scented the heresy, and then dragged the heretic before 
 
60 JUDGE Jameson's decision. 
 
 himself, to be judged by himself as judge, upon testimony furnished 
 by himself as witness, unsuited to our country and times. 
 
 For these reasons, I have no doubt the commission in question 
 was utterly void, and conferred no jurisdiction on any of the parties 
 subsequently taking steps in the matter. The presenters could not 
 under it present the complainant to the bishop, nor could the bishop 
 issue his citation, or select the eight presbyters to form the court, 
 as provided by Canon XX. 
 
 It was suggested, on the argument, that the words, "credibly 
 informed," are substantially equivalent to "informed by public ru- 
 mor;" that this proceeding ought, therefore, if necessary to sustain it, 
 to be regarded as founded upon public rumor. I do not think the two 
 forms of words are equivalent, since, as I have intimated, the "credible 
 information" may have been the private confession of the accused to 
 the accuser, which could with no propriety be called a public rumor. 
 But conceding that the two are equivalent, and that this is a proceeding 
 based upon public rumor, it is contended by the complainant, that 
 the offenses charged against him are not such as can be inquired into 
 in a proceeding based upon public rumor. The provision of Canon 
 XX is, that "whenever the bishop shall have reason to believe * 
 * * from public rumor, as contemplated by Section 2nd, Canon 
 XXXVII of the Greneral Convention," &c. Now, the section 2nd re- 
 ferred to is, that " if a minister of this church shall be accused by 
 public rumor, of discontinuing all exercise of the ministerial office," 
 &c., — specifying certain offenses — "it shall be the duty of the 
 bishop * * * to see that an inquiry be instituted," &c. It is 
 claimed by the complainant, that amongst these offenses are not reck- •' 
 oned those with which he is charged, but that, if they be offenses at 
 all, they are such as can be inquired into only upon information com- 
 ing from some other source than public rumor. Without going at 
 much length into the question, I am of opinion, that the point is 
 well taken, assuming the Canon XXXVII, Sec. 2nd, to read as above 
 recited. The offenses charged against the complainant are a violation 
 of the constitution of the church in respect to alteration of 
 the book of common prayer, and of his ordination vow to 
 
JUDGE Jameson's decision. 61 
 
 conform to the doctrine, discipline and worship, as the church has 
 received the same — offenses not specified or involved in section 
 2nd. On the other hand, the respondents, admitting, as I under- 
 stand them to do, that the offenses charged are not included in the 
 2nd section, as quoted by me, contend that, at the session of the 
 General Convention, held in 1868, this section was amended so as 
 to make the offenses therein specified and all others within the 
 cognizance of the ecclesiastical courts, examinable upon present- 
 ments based upon public rumor. But, admitting that the Canon 
 read to the court as the amended one, is in terms such as is contend- 
 ed, there are two answers to the claim set up by the respondents. 
 1. It does not appear satisfactorily that the supposed new section 
 has ever been adopted and published as an amendment to the Canon 
 in question. The bill denies, and the answer avers, that it has been 
 so adopted and published, and beyond that there is nothing in the 
 shape of evidence on either side, except that a printed volume is 
 produced containing the supposed amendment, bearing the date, 
 on its title page, of 1869. 2. As the supposed amendment could not 
 be in force in this Diocese, until the date of its publication (1869,) 
 or certainly of its adoption in convention (1868 — in what month 
 does not appear) — it can have no application to offenses committed 
 two years ago, or even six months ago. As to such ofl'enses it 
 would be ex post facto legislation. 
 
 It may be well, here, to notice another claim of the respondents. 
 The answer sets up, that, in the Hagar case, the proceeding was in- 
 stituted upon credible information, precisely as here ; that at the an- 
 nual Diocesan Convention of Illinois, following soon after that case 
 was tried, the proceedings therein were passed in review, and the 
 question raised of amending Canon XX, but that, upon due consider- 
 ation, the whole matter was laid upon the table, and that the an- 
 swer of the bishop, together with the opinion and decision of this 
 Court, and the argument of the solicitor for the respondents in that 
 cause, were, by the convention, ordered to be published with its jour- 
 nal, which was done. It is claimed that, by this action, the conven- 
 tion ratified the position taken in that case as well as here, as to 
 
62 JUDGE Jameson's decision. 
 
 the right of the bishop to proceed upon credible information under 
 Canon XX. I do not think this follows. The truth may be, that, 
 for some reason unexplained, the canon was deemed satisfactory as 
 it stands ; or that the question was thought not to be ripe for decision 
 until the church at large had been informed as to its merits. To 
 give to the constituent body that information may have been the ob- 
 ject of the convention in publishing the whole case. Besides, if the 
 action of the convention indicates any opinion upon the point now 
 under consideration, the complainant may fairly claim, that it sanctions 
 the view taken of it by Judge Wilson, that the proceeding, upon credi- 
 ble information was in direct violation of canon XX of this diocese. 
 As to the other objections raised by the complainant at the trial, and 
 overruled by the respondents, I shall only say that, after a careful 
 examination of the Canons, I am satisfied, except in case of that re- 
 lating to the sufficiency of the citation, that, although not all of them 
 going to the jurisdiction of the court, they ought to have been sus- 
 tained by the court. So far as concerns the right of challenge, it is 
 true, the Canons are silent, except that they permit to the accused a 
 selection of three or five assessors out of a list of eight furnished by 
 the bishop. But the point of the objection is, that no challenge was 
 allowed for cause against the whole array, nor against the body as it 
 stood after casting out the names above five. And, it is no answer 
 to say, that the persons challenged for cause were judges, and not 
 simply jurors. They were judges of the facts and of the law, pre- 
 cisely as jurors are in criminal cases under our laws. See Canon 
 XX, Section T, Diocese of Illinois. It would be monstrous to hold 
 that the members of a tribunal having such universal powers were 
 not examinable as to the existence of prejudgment or bias against the 
 accused, whose fate rested on their finding of facts as well as law. 
 In regard to the objection to the form of the presentment, the 
 authorities in the civil, canon, common and military law, are unani- 
 mous in holding that a presentment, like the one in this case, is 
 wholly insufficient. There are three charges against the complain- 
 ant here, and under each there are several specifications of the ofien- 
 ses charged against him. These specifications are simply, that, said 
 
JUDGE Jameson's decision. 63 
 
 complainant, at divers times within the last two years, or within the 
 last six months, whilst officiating as rector of Christ Church, Chicago, 
 had been guilty of omitting a certain word, or words, from the bap- 
 tismal service, without any other specification of time, place or cir- 
 cumstances. I presume I need only state this fact to show the utter 
 illegality of such a presentment. How could the accused prepare 
 for trial upon such charges with the least hope or probability of suc- 
 cess, if innocent ? But, the authority of Mr. Hoffman, the most 
 eminent writer upon ecclesiastical law in this country, would be de- 
 cisive of the question, if there could be any doubt upon it. He says, 
 (Law of the Church, pp. 401-402) : 
 
 " It will be noticed that in the rules of numerous dioceses, 
 it is directed that the presentment shall specify the offense 
 with reasonable certainty as to time, place and circumstances. 
 This is presumed .to be absolutely necessary in every case, al- 
 though it may not be directed in a canon. Whether the pre- 
 sentment is assimilated to the articles of the canon law, the libel of 
 the civil law, the bill of the court of chancery, or the indictment of 
 the criminal code, the rule is universal" — citing numerous authori- 
 ties. He then proceeds : " In the application of this rule some lat- 
 itude is necessarily allowed. To fix it with legal certainty is impos- 
 sible. To allege, for example, that an offense was committed at va- 
 rious times within a diocese would be absurdly illegal ; to aver that 
 it was committed at various times or at some time within a certain 
 year, would not be sufficient. But to allege the act to have been done 
 within a particular city or town, in a particular month of a certain 
 year, would, it is presumed, be legal." p. 402. 
 
 See, also, as to the degree of certainty required by the general 
 principles of the law, 3 Greenleafs Evidence, section 471. 
 
 As to the objection to the citation, that it summoned the com- 
 plainant to trial on thirty days' notice, without having been preceded 
 by a twenty days' notice to appear for the purpose of constituting the 
 conrt, — inasmuch as the Canons may, with some show of reason, be 
 construed as contended for by the respondents — I shall only observe 
 that, in my judgment, the better construction would be that con- 
 tended for by the complainant ; that there are intended by the Canon 
 to be two separate citations, one to appear and select the judges 
 or assessors, of not less than twenty days over and above the time 
 
64 suDGE Jameson's decision. 
 
 required to travel to the place of appearance, (section 9, Canon XX,) 
 and one of at least thirty days to attend for trial, (section 4, same 
 Canon.) That this is the true construction, may be inferred from 
 the inconvenience and injustice likely to follow the other, and from 
 the fact that in the Canons of the General Convention for the trial of 
 a bishop, which are more clearly worded, a double notice is required ; 
 first, of not less than twenty days, to appear to select the bishops to 
 form the court ; and, secondly, of not less than two nor more than 
 six calendar months, to attend for trial. 
 
 Not stopping to consider the other objections, it is proper now to 
 inquire whether the complainant, as contended by the respondents, 
 by objecting to the presentment, waived the antecedent objections 
 raised by him to the competency or jurisdiction of the court. I 
 think he did not. Were the court in question one of general juris- 
 diction, the point would have been one of much weight. Such a 
 court is presumed to have jurisdiction unless the contrary appears. 
 So, a court of limited jurisdiction, having jurisdiction of the subject 
 matter, is presumed to have it also of the person, if he appear and 
 demur to an indictment against him, or go to trial on the merits. 
 To hold otherwise, would be to trifle with the administration of jus- 
 tice. But, if a court of limited and special jurisdiction, on the face 
 of its record, has no jurisdiction of the subject matter, appearance 
 and consent do not give jurisdiction. Thus, in the Federal courts, 
 if it do not appear on the record, that there is jurisdiction, both in 
 respect to citizenship, and to the amount in controversy, consent 
 will not obviate the difficulty, and objection may be raised at any 
 stage of the proceedings, even on error in the Supreme Court. 
 Now, that the court in question, granting that it was a court at all, 
 was one of this kind, will not be denied. In the proceedings in the' 
 Hagar case, there appears a letter to that gentleman from the 
 Bishop of this Diocese, in which these words, respecting the court in 
 that case — which was precisely the same in its constitution as this 
 is — -vy^ere used by the Bishop : " The court being one of special crea- 
 tion and limited jurisdiction, does not exist until convened by due 
 canonical selection," &c. If this be bo, it must be subject to the 
 
JUDGE Jameson's decision. 65 
 
 same rule that governs all tribunals of its class. But, it must not 
 be forgotten, that here the respondents do not constitute a court, 
 properly speaking, but a board of arbitrators, meeting under the 
 stipulations of a contract, if meeting at all lawfully. How idle to 
 contend, in such a case, that a party defendant, who protests to such 
 a tribunal, at every step, that it has no jurisdiction, that it is not 
 proceeding according to the contract, but against both its spirit and 
 its letter, and who affirms, that he does not and will not consent to 
 it, or waive any of his rights under his contract, — after all waives 
 antecedent objections by pointing out to his assumed judges, that the 
 presentment against him is, by the law authorities of his accusers, 
 absurdly illegal, as wanting the indispensable requisites of a valid 
 presentment! I need not further press this consideration, however, 
 because it is clear law, that the proceedings of tribunals like this, 
 created for a special and limited purpose, assuming to act upon a 
 subject matter not comimitted to them, or in a manner contrary to 
 that prescribed by the law of their creation, are absolutely void, 
 and are incapable of being made valid by any consent or waiver of 
 the parties. Thus, in the case of the State v. Richmond, 6 Fester's 
 N. H. R., 232, the court, after an exhaustive examination of the 
 question, say : 
 
 " The jurisdiction of courts as to the subject matter may be lim- 
 ited in various ways, as to the original proceedings or those of an 
 appellate character ; to civil or criminal cases ; cases at common 
 law, in equity, or in the admiralty ; to probate cases, or cases under 
 special statutes. They may be restricted by the nature or amount 
 of the controversy; confined to officers having certain prescribed 
 qualifications; to single magistrates, or to several acting jointly. 
 Their powers may extend to a State, county or town, kc. They 
 may be authorized to exert their powers only at particular places, 
 and at specified times, and no others. Their jurisdiction may be 
 confined to particular classes of persons and to proceedings com- 
 menced by particular modes, as by petition ; by complaint under 
 or without oath, and in various other modes not necessary to refer 
 to. All these restrictions fall within the class of exceptions which 
 relate to the subject matter of the jurisdiction. They all fall within 
 the rule that consent tvill not confer jurisdiction.'' — Per Bell. J. pp. 
 240-241. 
 
 As the court of respondents, then, were acting in violation of 
 
 5 
 
66 JUDGE Jameson's decision. 
 
 the Canons, and so, had no power to act at all, there is thus shown 
 to exist the first of the three conditions of jurisdiction to enjoin them 
 in this court, viz., the court acting ultra vires. Let us see if the 
 second condition also exists, viz., a reasonable certainty, or a rea- 
 sonable ground to fear, that the result of allowing the court to pro- 
 ceed would be an infliction upon the complainant of a sentence of 
 suspension or degradation from the ministry. 
 
 The bill makes a case, on the part of the bishop, the creator of 
 the court, of prejudice and of a predetermination to convict the 
 complainant — to cause him to be tried only by those whose views were 
 adverse to those of complainant on the question, substantially, at is- 
 sue ; all other persons being, as the bishop is charged to have declared, 
 ineligible as judges or assessors. It is averred, in substance, that the 
 bishop informed complainant tliat unless he avoided a trial by conform- 
 ing to his views of duty, there could be but one result, and that deposi- 
 tion from the ministry. It is also stated that the respondents are largely 
 influenced by the bishop of Illinois, and that said bishop has threat- 
 ened complainant with deposition from the ministry ; that although 
 complainant is advised by counsel, that he cannot be lawfully de- 
 posed from the ministry, yet that should the said five persons claim- 
 ing to sit as a court be permitted to proceed, and, passing sentence 
 of deposition, the same should be approved, and deposition be inflic- 
 ted upon him, however illegal such a course might be, complainant 
 would, nevertheless, be practically subjected to the penalties of such 
 sentence. 
 
 Now these allegations of the bill are not denied or alluded to in 
 the answer of the respondents, except that which charges that they 
 are largely influenced by the bishop of Illinois in the matter of said 
 trial, and that which charges that they labor under the supposition 
 that sentence of deposition might be passed upon the complainant, 
 if found guilty, both of which they deny, although, in case of 
 the latter charge, with a material change of the phraseology. The 
 charges impugning the bishop, as having threatened complainant 
 with deposition and with a predetermination to cause him to be con- 
 victed and deposed, are not denied by the respondents, even on infor- 
 
JUDGE JAMESONS DECISION. 67 
 
 mation and belief. The bishop, it is true, in his affidavit filed with 
 the answer, enters a denial of these charges, but being pertinent to 
 no averments in or issues made by the answer, the affidavit can hard- 
 ly be said to support it although filed with it, especially, where, as 
 here, the motion is made upon bill and answer, as well as upon bill 
 alone. So far as the respondents arc concerned, therefore, they must, 
 as a matter of pleading, upon this motion, be considered as not de- 
 nying those averments of the bill which they do not themselves, in 
 soma form, nij^ative. If thar, be so, the record shows, as against them, 
 a probability, perhaps a, certainty, that deposition of complainant 
 from the ministry will follow, if the court be allowed to proceed ; or, 
 at the least, that a less sentence, forming the first step necessary 
 to precede and prepare the way for deposition, will be taken. 
 
 Bat, independently of these averments in the bill, I think the re- 
 spondents, as a court, must be considered in law, as threatening to 
 inflict upon tiie complainant tlie highest sentence which they would be 
 competent, under the Canons, to adjudge against, the oflFender, if found 
 guilty : their every step must be held to look forward to, to intend and 
 to threaten that which wouM be most disadvantageous to the accused. 
 They wrongfully put him in jeopardy of some ecclesiastical punish- 
 ment — it may be, of admonition -^- it may be, of degradation. How 
 can they claim a license to proceed in a course of usurpation, until 
 the point has been reached at which it will cease to be in the power 
 of this court to apply its preventive remedy, on the ground that they 
 may content themselves with a sentence of admonition. The point 
 is, they ma// degrade — not to speak of the alleged threat to do so on 
 the part of the bishop, — and, having no right to proceed at all, 
 they shall not put the accused in peril even of an admonition ; and 
 if, in order to put a stop to their illegal proceedings, it is necessary 
 to find as inevitable the worst consequences that may befall, under 
 the Canons of the church, the court will do so. 
 
 The third condition necessary to sustain the jurisdiction of this 
 court, is, that the consequence of the infliction upon the complain- 
 ant, as threatened, of a sentence of deposition must be irreparable 
 damage to his property, or estate, or pecuniary interests. 
 
68 JUDGE Jameson's decision. 
 
 And here I do not lose sia;ht of those numerous and 'weio'litv 
 authorities which hold that the office or function of a Christian 
 minister is one of public importance, and that, as such, it will be 
 protected bj the civil courts, and if its exercise be impeded or pre- 
 vented, the injurious interdict or obstacle will be removed without 
 much regard to the question of emoluments or pecuniary value. 
 Mo7ithly Law Reporter for Deo. 1855, pp. 424-425, and cases cited : 
 Rex V. Barker, 3 Burr, 1,265 ; St. Luke's Church v. Slack, 7 Cush. 
 226. I prefer to meet the question upon the lower and more familiar 
 ground of irremediable pecuniary damage. The bill sets forth that 
 the 'complainant was educated from his youth for the position and 
 function of a minister of the Protestant Episcopal Church, and that 
 he has now officiated as such in this city for nine years. It further 
 avers, that he is not, by education or inclination, adapted to follow 
 any other vocation, and that his temporal interests are involved in 
 his being and remaining a member of such ministry. 
 
 It is also alleged, that as rector of Christ Church, in this city, 
 connected with the diocese of Illinois, he receives and is paid by 
 said parish the yearly salary of $4,500, in addition to the use of a 
 rectory belonging to said parish and furnished rent-free to him, as 
 such rector. These latter averments as to salary and emoluments, 
 the answer of the respondents admits, to be true. It also admits the 
 averment as to his nine years' pastorate over Christ Church, and 
 that he was educated, as alleged in the bill, but it does not admit 
 that he is not adapted to follow any other vocation, but, on informa- 
 tion and belief, denies the same. 
 
 By the Canons of the General Convention, an Episcopal clergyman 
 deposed from the ministry can officiate as such in no parish whatever ; 
 he cannot act as assistant to another clergyman, but is wholly degraded 
 from his sacred office Avherever the church exists. Tit. I., Can. 11, 
 sec. 1, and Can. 12 sec. 2 ; Tit. II., Can. 10, sees. 1 and 2. 
 
 From this legislation, it is evident, that the instant a sentence of 
 degradation is pronounced by Episcopal authority, upon an Episco- 
 pal minister, his function and career as such iu the United States, 
 and, doubtless, throughout the world, are ended. He goes forth 
 
JUDGE JAMESON S DECISION. 
 
 69 
 
 Avith a brand, "like that of Cain, upon his forehead, an object to be 
 shunned by all adhering churchmen. His special education for, and 
 adaptation to, the calling he has chosen are no longer of service to 
 him ; his tongue is silent, so that he can neither teach nor preach as 
 such clergyman ; and he must forego the salary and emoluments his 
 function and pursuit have secured for him, and seek the means of 
 livelihood and a sphere of usefulness elsewhere than among his own 
 people. It has now become the duty of his church and congregation 
 to cast him out from both their fellowship and employ, and the court 
 must presume they will do that duty. He has been convicted by a 
 court of the church, and sentenced by the Bishop. Behind that sen- 
 tence they cannot go, neither can they look forward to any other 
 tribunal for its reversal, for from the spiritual court there is no 
 appeal. The simple question is, whether, in such a banishment and 
 deprivation, there is or not a pecuniary damage, and, if so, whether 
 or not it is such as the law pronounces irreparable. 
 
 That there is a pecuniary damage, I cannot entertain a doubt. So 
 far as the loss of the emoluments or perquisites of his office, of the 
 right to occupy the parsonage rent-free goes, there can be no ques- 
 tion whatever. Monthly Law Reporter, for December, 1855, pp. 
 421-432. He, moreover, loses his salary, and more valuable still, 
 pecuniarily, he loses the position, function or pursuit for which he 
 was educated, and for which he has special adaptation, that of a min- 
 ister of his church. The bill alleges, that the complainant is now 
 frequently in receipt of offers of positions as clergyman of his church 
 at a higher salary than he here receives. So soon as the sentence of 
 deposition is pronounced, not only will these offers cease to arrive, 
 but if the parishes, including his own, in which his ministrations 
 have been either enjoyed or sought, should permit him to officiate in 
 their chapels as a clergyman, they would be liable themselves to 
 church censure. To this they will not subject themselves. They 
 will follow their bishop, and not the contumacious presbyter, cut off 
 by the head of the church from its communion. 
 
 That the office of a minister of the gospel or of a lawyer, is a valu- 
 able right or thing in iiself, independently of the question of fees or 
 
70 JUDGE Jameson's decision. 
 
 emoluments, lias been the subject of adjudication in several cases^ 
 In the matter of J. L. Borsey, 1 Porter's Ala., p. 381 ; Cummings 
 vs. the State of Missouri, 4 Wal. U. S. R., 277 ; Ex parte Gar- 
 land. Id., 333. In these cases the court held, in substance, that de- 
 privation of the right to practice law, or to preach the gospel, was a 
 punishment, because, not of the honor attaching to the office or func- 
 tion, but of the value of the pursuit. In the cases in the Federal 
 court the deprivation was for refusing to take a certain oath, which 
 the parties aggrieved could not take by reason of acts done by them 
 during the late war, but before the act requiring the oath was passed. 
 The supreme court held, that the latter act was unconstitutional, as 
 amounting to an act of attainder. See, also. Monthly Law Reporter, 
 ubi siqjra. But in the case before the court there is an additional 
 element, that of a deprivation of the right to exercise a function to 
 which are attached a salary and emoluments, a deprivation operating 
 not in our own state only, but throughout the world. 
 
 It will be objected, that, granting the loss, the loss cannot be irre- 
 parable, because the courts of law can and will furnish a complete 
 remedy, either in an action for damages, or for the unpaid salary, or 
 by a judgment of restoration upon a mandamus, if the deposition be 
 found illegal. If a complete and adequate remedy exists at law, I 
 admit, the objection would be insurmountable, and the complainant 
 must be left to his legal rights. What, then, would be his remedies 
 at law, were the deposition now complete ? If, which cannot be pre- 
 sumed, — I must presume the contrary, — his church and congrega- 
 tion were to adhere to him and abjure their bishop, the loss suffered 
 by him would be small — itwouldbe so far contingent upon the event 
 of his being retained permanently by his parish, that it would be im- 
 possible to fix the amount. Perhaps a court would be bound to pro- 
 nounce it nothing. Should the parish, on the other hand, adhere to 
 the bishop, and turn off their minister, two remedies would be open 
 to him. If a part of the year, or other period, for which his services 
 had been engaged, were still unexpired, the complainant might sue 
 the parish in assumpsit for the salary and emoluments for the residue 
 of the unexpired term, and the court might give judgment for the 
 
JUDGE Jameson's decision. 71 
 
 balance due liim, provided that, on reviewing the proceedings of the 
 ecclesiastical court that deposed him, it found the sentence illegal, 
 and found, also, that his contract with the parish had not been re- 
 scinded or forfeited ; or he might procure a writ of mandamus to 
 restore himself to his place and function of minister of the parish for 
 the remainder of his term of office, upon the same condition, name- 
 ly, upon the court's jfinding invalid the proceedings of the ecclesias- 
 tical court. It is obvious, however, that a judgment in his favor, in 
 either of the supposed proceedings, would be a very inadequate rem- 
 edy for the wrong done him. In neither, could the court hear an 
 appeal from the judgment of the spiritual court, or reverse and make 
 inoperative the ruinous sentence by which he was rendered forever 
 incapable of pursuing the only calling to which he was by education 
 and inclination adapted, to gain a livelihood for himself and family. 
 
 In my judgment, then, a court of law could furnish no adequate 
 remedy for a man thus situated, and there would be a failure of justice, 
 an injury in the legal sense irreparable, unless a qourt of chancery 
 interposed by its writ of injunction. An injury is said to be irre- 
 parable when its consequences must be such as to destroy in the 
 estate or thing injured that which constitutes its value, or when it is 
 of such a character that although a court of law would admit the 
 injury, and that damages ought to be allowed for it, yet, it would be 
 impossible for a jury to fix the amount. In the former case the 
 injury is directly, and in the latter indirectly, irreparable. In the 
 case at bar, I am of the opinion, that the threatened injury would be 
 irreparable in both of these senses. The estate or thing of value 
 here is the pursuit, with its pecuniary rewards and emoluments, 
 present and prospective. That estate, or thing, the injury threat- 
 ened must entirely destroy. On the other hand, how could witnesses 
 estimate, or a jury fiiid in dollars and cents, the pecuniary value of 
 such an estate, or thing — a pursuit in life — a career in one of the 
 learned professions ? 
 
 But, it is said, no case can be found in which a court of chancery 
 has ever intervened to stop an ecclesiastical trial before sentence 
 passed. Even if that were true, it would not conclude this court of 
 
72 JUDGE JAMES n's DECISION. 
 
 the right, if the right exists, or, if, according to the principles of 
 equity, the court ought now to intervene. The precedents do not 
 contain the sum of all possible equity cases. As fraud and wrong 
 assume new disguises, or lurk in new hiding places, or conduct their 
 approaches with new weapons, before appropriated, perhaps, to the 
 offices of peace or religion, a court of equity will not despair of 
 defeating them, but will so change its tactics, so remould, and re- 
 temper and readjust its armor, offensive and defensive, as to maintain 
 unimpaired its character as a system of remedial jurisprudence 
 coming in aid of the defects of the law. But it is not quite true 
 that no case can be found in Avhich an injunction has been allowed in 
 such a case before sentence. In the case of Walker v. Wainwright, 16 
 Barb. 486, the defendant, who was the ad interim Bishop of New 
 York, was restrained by the court below from inflicting sentence 
 upon the complainant, who had been tried by an ecclesiastical court 
 and convicted of a^canonical offence. In the appellate court, Judge 
 Edmonds vindicated, in language already cited, the right of. the civil 
 tribunals to revise the proceedings of ecclesiastical courts. The in- 
 junction, it is true, was dissolved by the court, but not upon the 
 ground that it had no right to proceed before sentence, but that the 
 complainant had waived his objections to the irregularities com- 
 plained of by keeping silent when he should have raised and insisted 
 upon them whilst the court was in session. The same points were in 
 substance sustained by this court in the case of the Rev. Mr. Hagar, 
 against whom a presentment was made to an ecclesiastical court in 
 the diocese of Illinois, in the year 1863. In the latter case, the in- 
 junction was served before the trial commenced, and, although the 
 court dissolved it at the hearing, on the ground of a waiver by the 
 complainant of his objections to the jurisdiction, yet a doubt was 
 not intimated, nor apparently entertained, that the court could have 
 sustained the injunction, had the facts as to a waiver been different. 
 It has been urged in this^ case, as a reason why this injunction 
 should be dissolved, that the complainant does not, in his bill, allege 
 his innocence of the charge made against him. He does not say that 
 he has not omitted the word "regenerate " or its derivatives in the 
 
JUDGE Jameson's deci?iom. 73 
 
 office for infant baptism]; but it is fair to remember that complian- 
 ant's position is, that he has not yet been brought into the presence of 
 a court entitled to ask him whether he has omitted it or not. Until 
 the time arrives -when he can be lawfully interrogated as to that 
 point, it is competent for him to refuse to speak, and to throw him- 
 self upon his legal rights. But it is not true, that he enters 
 nothing in the form of a denial of the charge for which he was being 
 tried. The lano-uao^e of the bill is : " Your orator does not believe 
 himself to have been giiilty of offense and misconduct rendering him 
 liable to trials and in that regard desires only an impartial hearing 
 before the tribunals of his church." Now, the fair construction of 
 this averment is this : " If I did make the omission charged, which, 
 for the present, I neither admit nor deny, I believe myself not to 
 have been guilty of an oifense for which I am liable to trial." Tak- 
 ing this to be its meaning, it expresses a negation of the charge, so 
 far as the belief of the complainant goes — which is, perhaps, all 
 that ought to be expected in a matter, not of fact, but of belief. 
 The complainant is a clergyman. Were he to swear positively that 
 he was not guilty of an oifense under the Canons, and the 
 doctors of the law were to differ from him in opinion and decide 
 that their own belief, that he was guilty of an offense was 
 weightier and better founded than his own, would it not be said that 
 he had sworn rashly ? Indeed, where the question of guilt or inno- 
 cence is a legal question, not one of fact, no man can safely, on oath, 
 affirm more than his own belief as to his guilt or innocence. So far 
 as that goes, the complainant has sworn that his belief is, that he is 
 innocent of the oifense charged. 
 
 One further remark : the granting or the dissolving of an in- 
 junction, according to the settled practice of courts of equity, 
 is not a matter of strict right, but of grace, to be given or 
 withheld at the discretion of the court. In exercising this 
 discretion, the court regards two things : first, the established prin- 
 ciples of equity jurisprudence ; and, secondly, the probable conse- 
 quences of allowing or refusing its remedial writ. If there be a 
 doubt as to the legal propriety of granting or sustaining an injunc- 
 
74 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 tion, but the consequences of refusing to grant it, or of dissolving it, 
 would probably be disastrous to the complainant, whilst the conse- 
 quences to the respondent of granting or sustaining it would be not 
 so, or vastly less so, those circumstances would generally determine 
 the judgment of the court, and the writ accordingly be granted or 
 continued in force until the final hearing. In my judgment, that ex- 
 presses precisely the predicament of the parties in this case. The 
 order of the court, therefore, is, that the motion to dissolve this in- 
 junction be overi'uled. 
 
 Upon the announcement of the decision complainant's counsel applied for leave to 
 file an 
 
 AMENDED AND SUPPLEMENTAL BILL, 
 
 which was done accordingly, and is substantially as follows : 
 
 That in the Protestant Episcopal church there are two types of belief or systems, 
 Evangelical and Sacramentarian, low church and high church, and controversy has 
 arisen ; that the complainant belongs to one school and Bishop Whitehoirse to the 
 other, and their views are diametrically opposite ; that the Bishop had threatened to 
 weed his diocese of low church clergymen, as complainant was informed and believed, 
 and still believes, on which account and of his threats to that effect complainant 
 believes said Bishop intended to expel him from the church or diocese by the initiation of 
 the proceedings in question, and had that impression before and during his interview with 
 the Bishop, and was therefore reticent thereat and refused to admit anything already 
 stated — that after that interview the Bishop sent the letter annexed marked "l,"and 
 the complainant the reply annexed marked "2." 
 
 Complainant also states in reference to the securing an impartial tribunal, that his 
 counsel wrote and sent to the standing committee the letter annexed marked "3," 
 to which a member of the committee kindly reported that the chairman was out of 
 town, but the Bishop would return in time to answer the letter, which turned out to 
 be the fact. 
 
 That in the pretended trial of complainant the Bishop declined to act as judge, but 
 was nevertheless present during all the proceedings, and frequently communicated with 
 the prosecuting proctor by gesture or otherwise, directly or indirectly, as complainant 
 charges upon information and belief. 
 
 That complainant was compelled by the rapidity with which the proceedings were 
 piished, to interpose the exceptions to the presentment annexed marked "4." That 
 these, as well as all other objections and exceptions, were overruled, without cause 
 assigned. 
 
 That complainant's counsel then insisted that notice of time and place of trial had 
 not been given, but this was also held by the so called assessors to the contrary. 
 
 That these persistently adverse rulings upon points as complainant believes well 
 taken, justified and justify complainant in the belief that his case was prejudged, and 
 the determination of the Bishop to cause complainant to be deposed, being carried into 
 effect. 
 
 That as complainant believes the original respondents were selected with a view to 
 complainant's condemnation and deposition ; that they all sympathize with the Bishop, 
 as complainant believes, in Ms avowed design to weed the diocese of low church clergy- 
 
TRIAL OF KEY. CHARLES EDWARD CHENEY, 75 
 
 men, and belong to the high church party. lie also states that Christ Church has been 
 and is incorporated under the laws of Illinois. 
 
 Reiterating the allegations of the original bill of complaint, complainant says that 
 the action of the Bishop in the premises, coupled with his declaration to complainant 
 of what he intended to do and that deposition would be the result thereby, followed up 
 by a designation of the respondents and three others of the same general ideas as a list 
 to be selected from ; the disallowance of challenge for cause ; the allegation in the cita- 
 tion that the Bishop was proceeding by his own motion and not on the grounds desig- 
 nated by canon ; tlie persistent denial of mere matters of justice and the steady and 
 rapid pressure to the end, all manifest a combination against the complainant to bring 
 about liis conviction and sentence, and compel complainant so to charge, and that such 
 combination is illegal and fraudulent, and that the presenters officially and by reason of 
 being thereto seduced by the statements of the Bishop in his alleged commission, par- 
 ticipated. 
 
 Whereupon he makes Right Rev. Ileury J. Whitehouse and Messrs. Sweet, Cushman 
 and Otis parties defendant, and prays for process, &c. 
 
 The exhibits referred to are as follows : 
 
 NO. ONE. 
 
 Chicago, June 31, 18(39. 
 liev. Charles Edward Cheney, Rector of Christ Church : 
 
 De VK Sir : In causing the coi)y of the presentment to be served upon you, -with the 
 citation to be and appear and answer thereto, and also fixing the time and place ox 
 trial, I have complied strictly with the canon. But hitherto '^ the oll'euce and miscon- 
 duct" for ^vhich you are liable to be tried has been unreservedly admitted by you, and 
 you refer in your written answer, after deliberation, entirely to your previous action 
 and decit-it)n, as expressed in the official interview and conversation with me, the week 
 previ()i!>. I should, therefore, be pleased to know Avhether you still CDufess to the acts 
 charged in tlie presentment, and if you do, I beg to refer you to Section VI., Canon 
 XX., fir the course of proceedings, and say that in that case the clerical members of the 
 Standing Committee would abjudicate, and there would be no organization of the court 
 necessary. Should you then allow the facts to Ite taken pro confesso ? I presume that 
 there would be no objection with the clerical members of the Standing Committee to 
 hear counsel on both sides as to the substance and form of it. I would further request 
 that, if you are to be considered as denying the facts in issue, and that the trial must 
 formally proceed according to the canons, while I have assigned as the time the canon- 
 ical limit of thirty days (the 31st of July), an earlier day of trial would be concurred in 
 by till- presbyters on your waiver of the thirty days reqiiired by Section XIV ; and on 
 the fither liand, if thirty days is not sufficient for your preparation for trial, on satis- 
 factorj- cause shown to me I will extend the time named. 
 
 Very truly yours, Henry J. Whitehouse, 
 
 Bishop of Illinois. 
 
 P. S. — W. Fitzhugh Whitehouse, Esq., Chancellor of the Cathedral, will act for me 
 in receiving papers, &c., No. 6 Portland Block, corner of Washington and Dearborn 
 
 sireets. 
 
 NO. TWO. 
 
 Christ Church Rectory, ) 
 Chicago, June 22, 18G9. f 
 
 Dear Sir : Tour letter of the 31st Avas duly received, and at the same time copies 
 of certain papers purporting to be a citation and presentment. I am surprised at the 
 tenor of your communication, for 1 am unaware that I have unreservedly or otherwise 
 admitted any " olfencc and misconduct" for which I am lialile to be tried, or that I 
 confessed, and am, therefore, open tt) the inquiry whether I "still confess" the acts 
 charged iu the presentment. At the interview and conversation to which I understand 
 you to allude, I explicitly informed you that I could make no such admission or confes- 
 sion, and I deeply regret that you should labor under the serious misapprehension 
 iiidieated in the letter before me. It is, perhaps, imnecessary for me to add that I em- 
 jihatieally deny any accountability to sentence or punishment in the premises, and can- 
 not consent to be placed in the light of confessing culpability which I do not, in fact or 
 law, concede. The remaining portions of your letter do not require that immediate 
 answer which I conceived to be necessary in relation to the subject just mentioned. 
 
 Very triily vours, Chas. Edwd. Cheney. 
 
 To the Rt. Rev. H. J. Whitehouse, D. D. ' 
 
76 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 NO. THfiEE. 
 
 Chicago, June 30, 1869. 
 To the Standing Committee of the Diocese of Illinois : 
 
 Gentlemen : As isroctors and advocates for Rev. Charles E. Cheney we addressed 
 to tlie Bishop of this diocese a letter, a cop}' of wluch is herewith transmitted. The 
 Bishop was absent the greater portion of last week, and, returning for a brief space, 
 left this city again on Monday evening, and before our communication could reach him. 
 Reserving all right of exception and objection to the proceedings, we were, neverthe- 
 less, anxious that, in the constitution of the court charged with the consideration of the 
 matters for which Mr. Cheney is claimed to be liable for trial, such care should be used 
 that it could not be justly said that the list furnislied to the accused was made up of 
 those, or named anj% who would come to the investigation and trial, if thej' must be 
 had, with a condemning mind. The list of presbyters" furnished by the bishop was as 
 follows : Rev. Dr. Pierce, Rev. Dr. Boyd, Rev. Dr. Chase, Rev. Mr. Benson, Rev. 
 Mr. Benedict, Rev. Mr. Abbott, Rev. Mr. Corbett and Rev. Mr. Snyder, and we under- 
 stand the Bishop to require the .selection to be made from this list within twelve days 
 from June 21st instant. We do not concede that the limit could be canonically or 
 legally fixed by the Bishop, but we wished, if possible, to avoid raising such a question 
 by pursuing the course indicated in our letter to him. Tliere is in any case something 
 abhorrent to all principles of justice, in the idea of a court organized to convict, and 
 this seems a fortiori so, in any matter coming before an Ecclesiastical court. Wc do not 
 state this for the purpose of suggesting any inference or implication in the instance in 
 question, but simply as showing the reasonable character of the request we have made. 
 Neither ourselves nor our client are satisfied with the list furnished him, while, how- 
 ever, he has a personal preference even out of that list ; but this preference he does not 
 wish, and is not required to express until he is permitted to ascertain that tlie entire 
 number presented to select from are free from disqualifying bias. At the same time, 
 there would be a marked impropriety in the effort to directly interrogate the i^ersous 
 named, save upon previous communication with the ecclesiastical authority of the dio- 
 cese, which we understand you, pro hac vice, to be, and we respectfully solicit your 
 prompt attention to the subject. Very Respectfully, 
 
 Melville W. Fullek. 
 
 M. Byron Rich. 
 
 NO. four. 
 
 (In Ecclesiastical proceedings ante.) 
 With the supplemental bill Avere filed the aflldavits of Mrs. Cheney,' that at the time 
 of the interview with the Bishop she was in the next room, and heard Mr. Cheney say, 
 " Bishop, I will admit nothing ;" of Mrs. Stout, that in the early part of June Rev. Mr. 
 Snyder substantially expressed the opinion that Mr. Cheney was guilty ; of Mr. Will- • 
 den, that on the ecclesiastical trial he saw Mr. Snyder, while acting as a member of the 
 court, hand a .slip of paper to one of several persons who were from time to time in 
 communication with the Bishop during the trial ; of Mr. Smale, that he was present 
 during the trial ; saw the Bishop send communications in the direction of the rear of 
 the chapel where a door opened into the room where the trial was going on, and imme- 
 diately after tliis the prosecuting proctor received a communication ; saw the Bishop 
 disappear near a door at the rear of the cathedral which opened into the room into 
 which the respondents had retired for consultation ; saw the prosecuting proctor, 
 during the trial, receive frequent communications from persons who were in communi- 
 cation with the Bishop ; saw one of the assessors receive a communication during 
 progress of the trial ; of George W. Thomp.son, that no motion for a continuance was 
 made before the respondents by complainant or himself or either of his associates ; he 
 simply asked a construction of the canon as to notice of time and place of trial. 
 
 ECCLESIASTICAL COURT. 
 The Court met, July 29th, pursuant to adjournment, and adjourned to July 30th, and 
 again to Aug. 5th. 
 
 Thursday, Aug. .5th. 
 The Court, after remaining in private conference for upwards of an hour, took their 
 seats, (Mr. Snyder being absent,) and Rev. Dr. Pierce, of Springfield, read the reasons 
 
TRIAL OF UEV. ClfARLES EDWARD CHENEY. 77 
 
 of the Court for their rulin,;;;s July 21jt, and '22cl, an abstract of which is as follows: 
 (the same being preceded with some comments on Judi^e Jameson's decision, and the 
 declaration that the law of the Church was administered by the Court honestly, and im- 
 partially.) 
 
 Fir.vt. As to the Commission— that the provision of Canon XX is mandatory, and not 
 restrictive. The Bishop may ;o)'o/)rio wioiw initiate proceedini^s. lie mud do so when 
 apprised of an offense, by either of the tlirce sources of information. 
 
 The Court's cognizance of the case commences with the pres<'ntmi'nt, and they have 
 nothing to do with the commission, or on what motion the IJishop proceeds. 
 
 If the Canons Avere restrictive, nevertheless the Bishop has the right to decide what 
 constitntes "public rumor. " 
 
 As to the distinction between oflfenses cognizable on the ground of public rumor, and 
 those which are not, the Canon knows of no such distinction. The amended Canon is 
 partly the law of the Church. 
 
 Second. As to the presentment : The exceptions are two : first, that the specifica- 
 tions are not breaches of law, as brought forvvard in tlie charges ; second, that the spec- 
 ifications are too indefinite as to time, place and circumstances. 
 
 As to the first. Art. 8, of the Constitution provides for the setting furth of a Book 
 of Common Prayer, and it can only be altered as provided. The Diocese is nnder 
 obligation to see that the Prayer Book is used unaltered, and this it cannot do if the 
 mutilating of any office therein be not an oflense. 
 
 The declaration in Art. 7, is part of that article, and the ecclesiastical authority is 
 bound to see it adhered to. The use of the baptismal office is comprehended under the 
 term vjori^hip. 
 
 To refuse to conform is a violation of the ordination vows, and the liability of a Cler- 
 gyman to trial, for a breach of them, is plainly expressed in the law of the Church. 
 
 Second, The requirement of the law as to time, place and circumstances, is to give 
 the accused such definite information concerning the accusation as may enable him to 
 bring proof of his innocence. The acts cliargcd here are matters of record in the 
 parish register of the accused, which will inform him Avhcn he has administered the 
 sacrament of baptism. And, in this view, the presentment is sufliciently defmite. 
 
 The form is substantially the same as given by Hoffman. (Note on the Penal Law of 
 theProt. Epis. Ch., p. 92.) 
 
 ^.s to the citation. It is claimed that notice of time and place of trial, and the citation 
 to appear and answer are sepai-ate and diflferent things, and sections 4 and 8 arc relied on 
 to sustain the position. There is no inconsistency between them. Section 8 provides 
 for twetitij days between service and appearance, over and above lime for travel. Section 
 4, for a notice of thirty days to time and place of trial. Sec. 8 was intended to give the 
 accused at least twenty days notice after service besides time for travel. 
 
 As to the Court. No right of challenge, except as the selection of the accused par- 
 takes of tiial character, is given by the Canon. The Court being duly formed, there is 
 no place for the exercise of any such right. Eacii member sits by an equal right, and 
 one has no power to expel another. Were the assessors mere jurors the right might ex- 
 ist, but tlien there must be some judge to pass on the question, whereas each a.-sessor is 
 a judge. It may be such an objection miglit be rained before the bishop, but not before 
 the assessors ; a challenge in this latter case amounting to nothing, as the assessors 
 would necessarily have to pass judgment on their own qualifications. Hence the Court 
 denies the right of examination and challenge. 
 
 The President, Rev. Dr. Chasb, then read a 
 
 DECLARATION AND PKOTEST 
 
 " against the intrusion of Civil Courts in matters purely spiritual and ecclesiastical," 
 on the grounds, as abstracted, following : 
 
 1. That Civil Courts, as such, cannot and ought not to interfere with Courts spiritual 
 in any manner whatever. 
 
 2. That Courts Spiritual or Ecclesiastical are governed, not by Canon only, but by 
 usage, which is their common law. 
 
78 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 That Civil Courts can exercise no revisory power over Ecclesiastical tribunals, and 
 when any riijht of inquiry, in respect to property interests arises, after final decision, 
 Civil Courts are bound by the construction of Spiritual Courts. 
 
 4, That the prospective right of employment-, as a Clergyman, cannot constitute a 
 case of damage or injury. The minister must be iu " regular standing, " andcome into 
 court " with clean hands" 
 
 5. That the Ecclesiastical Court was duly organized, and there has been no oppression 
 nor negligence in the premises. 
 
 Finally, the members of the Court repudiate any intention of inflicting on the accused 
 the worst consequences that may befall him ; reiterate their declaration, that they would 
 *' be gratified, if it shall transpire from the evidence, that said Complainant is not 
 guilty ;" submit tluit they are not to bj arraigned and sentenced as if they Were a base 
 ball club, or a commission to run a railroad ; but insist that they derive their origin from 
 the organic law of a historical Church ; deny the charge of oppressively overruling the 
 right of cliallenge, and conclude with a solemn protest and appeal against all cliarges of 
 wrong doing, " in the name of God, this Church, and our common humanity, for whom 
 Christ died ;" and the declaration that, " while claiming for God the things that be 
 His, we will ever render unto Cjesar the things that be Cesar's. " 
 
 The Bishop. May it please tlie Court : From the Canon it might appear that there 
 was, to some extent, a propriety in the Bisliop acting in relation to the postponement 
 of the sessions of the Court ; but at the same time it is obvious that the Court has its 
 own right of adjournment. Reserving, therefore, those rights, and prudentially, I beg 
 to state as my judgment in the matter, and to recommend for the correlative action of 
 tlie Court, that it be, so far as I am concerned, postponed, and, if they thinlv proper, ad- 
 journed until the 15th day of S^'ptember next, to meet then, at the place in which they 
 have held their sessions, and at such time as the Court may think proper to fix for their 
 adjournment. 
 
 The Presiding Officer. In accordance with the authority contained in the sug- 
 gestion of the Bishop, the Court is hereby adjourned, to meet in this place ou the loth 
 of September, at two o'clock afternoon. 
 
 IN SUPERIOR COURT OF CHICAGO. 
 On the 7th day of August, the 
 
 ANSWER OF BISHOP WHITEHOUSE 
 
 to the amended bill was filed, wliich protests this Court has no jurisdiction ; admits 
 Complainant is a presbyter of tlie Church, and Rector of Christ Church with a salary, 
 and that said Parish has Communicants, Sunday School and property, as stated, and 
 that he was educated for the ministry of said Church, and has been a presbyter as stated ; 
 but denies that Complainant's temporal interests are involved to the extent of irrepara- 
 ble injury in his remaining in such ministry ; on the contrary, avers his talents and edu- 
 cation fit liim for the pursuit of other avocations, and an equally profitable jiursnit of 
 the ministerial profession. Claims the commission is not a necessary part of the pro- 
 ceedings ; admits the issuance of the commission, and the finding of the presentment ; 
 also admits service of citation and says the object thereof was to give notice of time and 
 place of trial, and furnish list of presbyters for selection of assessors ; admits letter to 
 Complainant and to Mesn-s. Fuller and Rich, and letter of latter to him, and makes 
 his letter to Hager part of his answer ; sets forth interview with Complainant ; says he 
 convened the Standing Committee who selected five assessors from the list, and ap- 
 pointed Dr. CH.iSE to preside as Judge, "in case tlie contingency contemplated by the 
 Sd section of Canon , XX, sliould occur;" that the presbyters so selected became, and 
 were, a loyal and competent court to try the accused, and upon convening it became 
 Respondent's duty to lay before them the presentment. 
 
 Respondent admits, as matter of fact, that tlie major part of the vestry of Christ 
 Church, had not given him iuformation that the Complainant was guilty of " offenses 
 
TRIAL OF REV. CHARLES EDWARD CHENEY. 79 
 
 or misconduct, " &c., and lie admits ttiat lie did not receive sucii information from tlirce 
 presbyters, but denies, that as Bistiop, he had not reason to believe from "public ru- 
 mor, " that he ivas guilty, and says he had reason to believe from •' public rumor ;" but 
 he claims that it was his right as Bishop, virtute offlcii, on " credible information " to 
 proceed, and that such is specilically recognized in Title 2, Canon 1, Section 1, which 
 declares every minister to be amenable for offenses to the Bishop. 
 
 Avers that by Churcii common law, the Bisliop has an inherent power, especially in 
 his visitorial functions, to inspect the behavior of his clergy, and cause them to be 
 brouglil to tiial for any offense, and, in addition, it is made, by Canon XX, his duty to 
 proceed when informed, as therein stated, and the Canon is then^mandatory. That 
 construction has been the same since 1838. That the same proceedings transpired in 
 Hager's case, and the Convention published Respondent's letter and answer, Judge 
 Arrington's argument, and the opinion of the Court in tliat case, and declined to alter or 
 amend Canon XX, though a proposition was made so to do, whereby the Convention 
 approved the Respimdeut's construction of that Canon. 
 
 Admits complainant made no selection by himself, in person, but says he did it by the 
 Standing Committee, and those selected appeared, and Rev. Dr. Chase presided. Re- 
 spondent, though present, having declined to act as Judge. Admits Complainant ap- 
 peared, and that proceedings were had. 
 
 Denies that there arc two types of belief, or systems, in the Episcopal Church, as 
 stated in the amended bill ; denies he belongs to any party, but is in favor of the largest 
 liberty, but believes it his duty, and that of every pre.'^byter, to regard his ordination 
 vows, and administer the sacraments and services as prescribed. 
 
 Denies that he has ever threatened to weed the Diocese of Low Church' Clergymen, 
 or has ever intended to expel Complainant, or entertained any purpose or desire to 
 cause him to remove. 
 
 Denies that he communicated frequently with Judge Oris, by gesture or otherwise, 
 for the purpose of advising with him, or directing him in the discliarge of his duty, or 
 interfered in any way ; denies all charges of effort to procure conviction, or that be se- 
 lected the eight presbyters with any such view, but because they were able, intelligent 
 and upright. 
 
 Denies that he has attempted, directly or indirectly, to affect the assessors, or any 
 combination with the assessors, or presentors, or either of them ; denies " that there has 
 been any conversation between himself and either of said persons, which was intended, 
 or could have the effect of producing, a wrongful conviction of the Defendant, or of de- 
 posing him from his office. " 
 
 Says he did not communicate the fact of his interview with Complainant, but it was 
 published, nevertheless, and the information must have been derived from the Com- 
 plainant. 
 On the 6th day of August, was filed the 
 
 ANSWEK OF THE PKESEXTORS, 
 
 who admit the averments of the bill as to the salary, parish,' &c., of the Complain- 
 ant ; says the law of the Church is found in the Constitution, Canons, and usages of the 
 Church ; aver the Constitution and Canons of the General Convention are contained in 
 a book published in 1869, and brought into Court. 
 
 Admit commission and presentment ; that they believed said complainant had omit- 
 ted the words, "regenerate " and " regeneration, " at different times during two years 
 and six months, and was liable to trial therefor ; that they appeared at Cathedral Chapel 
 July 21st ; that Complainant raised certain objections, which were overruled, and right- 
 fully, as they think ; deny any plan to convict and sentence Complainant, or any com- 
 bination, direct or indirect, between them and the Bishop or any body else, to that end; 
 deny any prejudice ; say they believe Complainant guilty, and wish to discharge their 
 
80 
 
 TRIAL OF REV. CHARLES EDWARD CHENEY. 
 
 duty. Admit a part of the Church is called "High" and a part "Low" Church, but 
 deny all desire to promote differences, hut wish for peace and unity. Deny irreparable 
 injury, or that multiplicity of suits will be presented by the interference of this Court, 
 or that the temporal interests of the Complainant are involved in the issue. 
 On the 7th of August was also filed the 
 
 FURTHER ANSWER OF THE ASSESSORS, 
 n which they reiterate the averment of their former answer ; deny the existence of two 
 types of belief, generally known as Evangelical and Sacramental ; deny the design of 
 weeding the Diocese of Low Church Clergymen, and deny any knowledge of any move- 
 ment of that kind. Admit that Dr. Ch.\se presided, and that the Bishop was present ; 
 but deny all communication with them, and upon belief with Judge Otis. 
 
 Deny all averments of the bill inconsistent witti their answers ; deny that Complain- 
 ant's case was prejudged, and say they intended to give him a fair and impartial trial. 
 Deny solemnly all combination and conspiracy ; admit that Christ Church is incorpora- 
 ted, and so ask to be dismissed. 
 
 Also with said answer was filed the 
 
 AFFIDAVIT OF THE ASSESSORS, 
 
 reiterating the averments in their answers ; annexing copy of their selection by the 
 Standing Committee ; deny that they had formed or expressed an opinion as to the 
 guilt or innocence of the accused, but admit they had an opinion that the omission 
 charged constituted an offence. Deny any design of driving the accused out of the 
 Diocese, or his parish ; admit some unfortunate differences have arisen in the Church, 
 but say they desire to consolidate and accommodate, and are in favor of the largest tol- 
 eration. 
 
 Deponent Snydek expressly denies the formation and expression of any opinion as to 
 the facts, thougli he had an opinion that the omission constituted an ofl'ense ; did com- 
 municate withVV^. F. Whitehouse that he had formed and expressed no opinion, and 
 was advised by him to say so. 
 
 That tiiC dL-cisions were made upon reasons now written out, and hereto annexed. — • 
 {See note.) 
 
 Also aflidavit of Mr. Williamson, that he had charge of the room in the rear of the 
 Chapel, and the Bishop did not, as far as affiant could see, have any communication 
 with assessois or presenters ; that the deliberations of the Court were strictly private; 
 that Complainant was represented by three counsel, while the presenters conducted 
 their own case ; that the Court listened to a long argument after the point had been de- 
 cided. 
 
 Affidavit of W. F. Whitehouse, that Mr. Sxydeu handed him, during a lengthy ar- 
 gument for Complainant, a slip 01 paper to the effect that he never said Mr. Chenet 
 was guilty, and affiant, during the ailjournment of the Court advised said Snyder to 
 state so publicly ; that no communication of any kind, to affiant's knowledge, was had 
 between the Bishop and the assessors or presenters ; that the door from the chapel into 
 the Cathedral was kept constantly locked. 
 
 On the loth uf September, the affidavit of the CoHip?amauMvas filed, reiterating the 
 avermments of the bills, and amended bill, again stating directly and specially, that he 
 admitted nothing at the interview with tlie Bishop ; that the letter he wrote the Bishop 
 as set out in the Bishop's affidavit, was intended to avoid admitting any omission by 
 inforvuing the Bishop, that he adhered to his conclusion that he would not promise not 
 to omit, for he considered to promise not to do so in future was an admission that it 
 had been done in the past ; that he did discuss with tlie Bishop his conscientious scruples 
 simply on the subject of the absolute averment of the regeneration of the infant, when 
 he believed bai/tirin only regenerated when worthily received, but expressly told the 
 Bishojj he would admit no fact. That the Bishop threatened deposition as the inevit- 
 able result of proceedings at once to be instituted, and on tlie ground that he, the Bis- 
 hop, would select as assessors those who would convict. And in this connection denounced 
 the " protest. " That he is advised by Cuunsal, that he is entiiled to stand on his can- 
 onical right to be h-ld to deny the facts, and the ordinary presumptions in favor of an 
 aecuacd, and he denies utterly that ihe omission in question is a violation of the ordina- 
 tion vow^, or uf the Constitution, or Cnnons of the Church ; that by usage, many omis- 
 sions and changes of the service in the Book of Common Prayer are peimitied, as, to 
 omit the preliminary question in the Baptismal office ; the form of giving away the bride 
 in the marriage service ; certain portions of the service for the Burial of the Dead ; some 
 
TRIAL OF REV. CHARLES EDWARD CHENEY. 81 
 
 words from certain appointed lessons of Scripture required by the Prayer Boole l)e to 
 exad ; to alter the service for Cimlinnalion, (especially in the Diocese of Illinois, and by 
 repress direction of Bishop Wliitehousc',) by the inserting of a form of presenting the 
 candidates for that rite, not contained in said service, or laid down in the Book of Com- 
 mon Prayer; to omit the word "regenerate" from the ofHee of Public Baptism of In- 
 ants, where occurring after the administration of the rite, and in the prayer of thanks- 
 giving, &c. &c. That these omissions and chani^es arc permitted, and to such an fextent 
 as to create a usage in that regard, providing howcvrr tliat the service is substantial- 
 ly given and no change is made so as to teach doctrine contrary to that of the Church; 
 that the doctrine of the Church on the subject of Infant Baptism is that Baptism is a 
 sacrament generally necessary to salvation, but that the grace of regeneration does not 
 so necessarily accompany the act of Baptism, that regeneration invariably takes place 
 therein ; that Baptism is an actual sign of grace by which God works in such as worthily 
 recieve it, but not in itself without reference to the qualitications of the recipient. That 
 the Church of Rome holds that infants are regenerated ex opere operato but the Protes- 
 tant Episcopal Church does not. That many of the Episcopal Church hold views sub- 
 stantially concurrent with those of Rome ; many hold the doctrine as above stated, but 
 find no difficulty in using every part of the Baptismal service, while many holding the 
 doctrine as it is, have scruples about making the positive averments of the infant's Spirit- 
 ual regeneration, and in this latter case have been often permitted without rebuke, to 
 omit the allegation ; or to modify it, which Bishop Griswold did by the insertion of the 
 words " as we humbly trust " after the averment that the " child is regenerate. " That 
 the absolute assertion is in fact made hypothctically, and the event is committed to the 
 grace and favor of God, bj' which alone can the work be wrought, and hence Avhenever 
 the auditors are liable to misapprehend the language it should be omitted, provided the 
 omission does not change the service in substance, as the alleged omission in the case at 
 bar does not. That the standard of Doctrine is the Thirty-nine Articles, and that upon 
 them and the formularies in connection, the Doctrine is as before stated, and faith and I'e- 
 pentancc are held necessary in every case to actual regeneration. 
 
 Affidavit further states that the Bishop has attempted to have him presented before 
 this, and for trivial matters in which he was guilty of no otTense; reiterates the informa- 
 tion as to the threat to weed the Church of Low Church Clergymen, and gives the name 
 of his inf(n-mant ; declares that this and the Bishop's direct threats to him, and the fact 
 that the alleged omission had been tolerated for many years, compelled the belief and 
 sanctions the charge, that the proceedings were set in motion for the ulterior purpose of 
 removing affiant, and not for the avowed purpose of discipline. 
 
 That affiant communicated nothing to the public of the interview with the Bishop. 
 
 Annexes the Bishop's address of 18G8, and insists that the views there expressed sus- 
 tain the allegation that the Bishop belongs to the High Church party and are diametrically 
 opposed to atliant's : affiant reasserts the influence necessaril.y exerted by the Bishop 
 upon presenters, and assessors, and insists that the former made no other investigation 
 than the Bishop's letter, called a commission which asserts that this affiant had omitted 
 the word, and that it is an offense. Again charges Mr. Snyder, with the formation and 
 expression of an opinion, &c. &c. 
 
 Together with this affidavit were filed that of Mrs. Hoodless, that Mr. Snyder, on 
 the 29th of June, substantially expressed the opinion that Mr. Cheney was guilty, and 
 said that if convicted he would be deposed ; of Mr. Thompson to the accuracy of an an- 
 nexed record of the Ecclesiastical trial ; of Mr. Sm ale to the threat made to rid the Diocese 
 of Low Church Clergymen, commimicated to affiant by a person who heard it ; of Mr. 
 Sackett to the Bishop's assertion some years since, that Mr. Cheney ought to l)e pre- 
 sented for disrespect to him, which witness did not think was perpetrated ; of Mr. Rich 
 that the letter to the Bishop, contained in his "Commission " was written under his 
 advice, not to make, but to avoid making any admission, by promising not to do, what 
 it was not admitted, had been done ; of Mr. Sargent, to seeing Mr. Snyder receive a 
 communication during the prosress of the trial, &c. By stipulation evidence as to usage 
 is yet to be taken and used in the Court above, 
 
 A pro forma decvea was then entered in Complainant's favor, and the case taken by 
 Defendants to the Supreme Court by writ of error. It is expected the argument will 
 take place there in the course of a few weeks, but as a decision will not be reached for 
 some months, the issuance of this pamphlet is not delayed therefor.