from experience, find that they needed them, and should adopt them, or in other words, so far as, in their judgment, they were applicable to their circumstances; and of such applicability they were exclusively the judges.

CHAP. I.

In addition to the argument drawn by analogy Foreign from the decisions of the courts and civil authorities, law not in the history of the ecclesiastical law of England fully force until adopted. sustains the same position as to the absolute independence of the colonial churches, of all foreign law; that is, of all human law which they had not affirmatively enacted or adopted. By the Act of Parliament of 25th Henry VIII., Chapter 21, it is enacted as follows:

"The realm of England hath been and is free Authori "from subjection to any man's laws, but only such ties. "as have been devised, made, and obtained within

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'this realm, for the wealth of the same, or to such

other as, by sufferance of the king, the people of "this realm have taken by their own consent to be "used among them, and have bound themselves by "long use and custom to the observance of the "same, not as to the observance of any foreign "prince, potentate, or prelate, but as to the accus'tomed and ancient laws of this realm, originally "established as laws of the same, by the said suffer"ance, consent, and custom, and none otherwise."

The principle of this noble declaratory statute was, in all respects, as applicable to the colonial churches as to the Church of England, and it is equally applicable to the Protestant Episcopal Church in the United States.

CHAP. I.

In reference to this point, Chief Justice Hale, as cited by Lord Hardwicke, 2 Atkyns, 669, says:

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I conceive that when Christianity was first intro"duced into this land, it came not without some form "of external ecclesiastical discipline or coercion, "though at first it entered into the world without "it; but that external discipline could not bind any man to submit to it, but either by force of the "supreme civil power, where the governors received "it, or by the voluntary submission of the particu"lar persons that did receive it; if the former, then "it was the civil power of the kingdom which gave "that form of ecclesiastical discipline its life; if the "latter, it was but a voluntary pact or submission "which could not give it power longer than the party "submitting, pleased; and these the king allowed, "connived at and did not prohibit; and thus, by 'degrees, introduced a custom whereby it became "equal to other customs and usages.

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In Cowdry's Case, 5 Coke's Rep., 33, Lord Coke says:

"So, albeit the kings of England derived their "ecclesiastical laws from others, yet so many as were 'proved, approved, and allowed herein, and with a "general consent, are aptly and rightly called the "king's ecclesiastical laws of England."

In Evans vs. Askwith, Wm. Jones' Rep., 160, it was declared, that "no foreign canons bind here, except such as have been received, but, being received, they become part of our laws." See Queen

vs. Mills, 10 Clarke & Finnelly, 678; Hoffman's Law of the Church, p. 46.

The declaration of fundamental rights issued by the first convention of the Church of Maryland, asserts the same independence of all foreign authority, as the undoubted right of the Church of Maryland, in these striking words: LI B

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"We consider it as the undoubted right of the "Protestant Episcopal Church, in common with other "Christian churches, under the American Revo"lution, to complete and preserve herself as an "entire church, agreeable to her ancient usages and "professions, and to have the full enjoyment and free "exercise of those purely spiritual powers which are "essential to the being of every church or congre"gation, and which, being derived only from Christ "and his Apostles, are to be maintained independent ' of every foreign or other jurisdiction, so far as may 'be consistent with the civil rights of society."

If no papal canon or decretal was ever binding on the English Church or people, but by their own consent, even during the darkest period of papal supremacy, it can hardly be claimed that this same English Church and people could arbitrarily impose their laws upon independent colonial churches.

Dr. Francis Vinton, in his Manual on Canon Law, p. 20, thus expresses himself on this point:

"Both churches (that is, the Church of England "and ours) are amenable to the body of canon law, "when it is not superseded by domestic law. As "the ante-Reformation or Foreign Law, imposed "by Rome is to the English Church, so is the "English Canon Law to the Church in the United "States. In other words, the Catholic Code is ab

CHAP. I.

solutely obligatory, where no rule is provided. "The foreign code of laws, e. g., the English Ec"clesiastical Laws in the United States, is obligatory "with two restraints: (1.) that they are adapted to "the Constitution of this Church, and so are proper; "(2.) and not contradicted by the laws of the land "and of this Church, and so are legal rules. 25

Henry VIII., Chapter 21, Gibson's Codex, Introd. "Dis., pp. 27, 28." He then adds:

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Question: Is every member of the Church bound to obey the canons of the Catholic Code "and of the English Church, with the restraints "above named?"

"Answer: Yes; on the footing of consent, usage, "and custom in this Church, or jus non scriptum "ecclesiasticum. Gibson's Codex. Introd. Dis., 28. Grey's Eccl. Law, pp. 9, 10."

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Dr. Vinton thus admits that English ecclesiastical law is, so far as we are concerned, foreign law, and that its relation to the Church in this country is precisely the same as that of the ante-Reformation law imposed by Rome to the English Church, and is only obligatory, on "the footing of consent, usage, and custom, in this Church."

In order, therefore, to ascertain precisely what laws of the English Church were binding upon a colonial church, at the time of the Revolution, we have only to ascertain which of them had been adopted by such church, by "consent, usage, or custom."

The Protestant Episcopal Church in the United States of America, however, it must be carefully observed, was not organized until the year 1789, and, of

course, the relations of these foreign laws to it, could not depend upon its usage and custom, but any binding obligation that they may have upon this Church must rest upon wholly different grounds, and will be considered hereafter.

To the same effect Dr. Hawkes, in his Ecclesiastical Contributions, p. 265, says:

"The opinions which were entertained in the "mother country, and the decisions which had been "made on matters of ecclesiastical law or usage, up to

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the severance of these colonies by the Revolution, "were, as far as applicable, held to be the guide of the "Church of England here, and, although the inde'pendence of the United States dissolved the con"nection, it evidently did not destroy the prevailing "opinions among churchmen, as to matters and usages "touching the Church. To the Common and Canon Law of England we must therefore look, if we "would fully understand the origin of much of the law "of our own church.'

So, also, Bishop Hopkins, in his very valuable work, "The Primitive Church Compared," etc., pp. 358,359, after quoting some passages of the consecration service of bishops, says:

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"All the above passages are retained from the "ordinal of the Church of England; they were a part of the ecclesiastical system of our church, previous "to the Revolution; the colonies were, at that time, under the spiritual jurisdiction of the Bishop of London, and whatever construction was then put upon "the office of a bishop, and the promise of obedience "to him, in this country, continues to be the law of

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CHAP. I.