CHAP. I. "our church to this day; those points alone excepted, "in which our American church has thought fit to "alter it by some new provision. 66 "This is the well-known principle of our civil law. "Hence, in almost every part of the Union, there are "parts of the English Common and statute law in 'force to the present hour; all that had been received "and acted upon in this country previous to the Revo"lution, being considered as a part of our system, in no way affected by the separation from the mother coun"try. (See the case of Terrett et. al. vs. Taylor et. al. "9 Cranch, 43.) And in all the Federal courts, the "whole science of jurisprudence is still interpreted according to the English rule, and their law books are "read as authority. 66 "Marvelous it is, surely, that the laws of the states "should keep their ancient connection with so much "constancy; while yet the principles of the Church 'must be cut loose from all their ties, and be sent "adrift to discover new interpretations and definitions "of old terms, as if the phrases bishop, presbyter, "and ordination vows, had suddenly lost all meaning "and ceased to signify, at the Revolution, what they "had always signified before." On page 361, Idem., Bishop Hopkins says: "The bishops of London were our diocesans; "and the uninterrupted, although voluntary, submis"sion of our congregations, will remain a perpetual "proof of their mild and paternal government.” Bishop Hopkins was an able lawyer, as well as a wise bishop; and these quotations attest the accu racy and thoroughness of his legal knowledge and conclusions, as to the relations which the colonial churches, after the Revolution, sustained to the discipline of the Church of England, and its ecclesiastical law. He evidently considered no foreign law as binding here, until by usage and consent, or as he expresses it, by having "been received and acted upon," it had become American law and was thus in no way affected by the separation from the mother country. It was the right of a colony, or of a colonial church, to avail itself of any English law that it should deem applicable to its situation; but there was no obligation upon it to do so; and much confusion in the discussion of this question as to the precise scope and force of English law in this country has arisen from the fact that this distinction between the right and obligation to use it has been frequently overlooked, as has also the further fact that, as the Protestant Episcopal Church in the United States was not organized until October, 1789, the Revolution and the changes resulting from it, could have had no immediate effect upon such Church, but only upon the colonial churches, whose legal status must therefore be considered separately from that of the National Church. 66 Judge Hoffman, in his able work upon the Law of the Church, under the heading "Of the Church of England in the Colonies," among other things, says: It is an admitted maxim that the great body of "the Common Law of England, and of its statute "law, so far as adapted to the situation of the colo"nies, was brought to this land from the mother country, and formed the basis of colonial law. C. L.-2. CHAP. I. CHAP. I. "Now this great principle, which pervaded every Under this language of Judge Hoffman, submission to English law would seem to be, not a matter of consent and usage, and thereby of adoption as American law, but a matter of compulsion, except where, from necessity, it was inapplicable, or had been expressly altered. If this be his meaning, there can be no doubt that this proposition of Judge Hoffman reverses the rule herein before stated, and declares that English law, whether accepted and adopted by the colonial churches or not was, as a general rule, binding upon them. A careful consideration will hereafter be given to his language and the positions which he assumes in reference to the scope and force of English law in this country, when we come to deal specially with the law governing the Protestant Episcopal Church in the United States. It may then be assumed as settled by the whole current of authority that, in the colonies and colonial churches, as in England and the Church of England, neither the Common nor any foreign law was ever in force, until adopted by their own consent. In civil affairs, the needs of a colony would lead at once to the adoption of the Common Law upon a large scale, inasmuch as the rights of property and person demanded immediate protection, and the Common Law, with its vast treasures of wisdom and learning, and with which they were familiar, and to which they were deeply attached, was adequate and at hand for such protection. Chancellor Kent says: "Although the great body "of the Common Law consists of a collection of "principles, to be found in the opinions of sages, "or deduced from universal or immemorial usage, "and receiving progressively the sanction of the "courts, it is nevertheless true, that the Common "Law, so far as applicable to our situation and gov"ernment, has been recognized and adopted as an "entire system by the constitutions of New York, "Massachusetts, New Jersey, and Maryland. It has "been assumed by the courts of justice, or declared "by statute, with the like qualifications, as the law "of the land in every state. It was imported by our colonial ancestors as far as it was applicable, "and was sanctioned by royal charters and colonial "statutes. It is also the established doctrine, that CHAP. I. CHAP. I. 66 'English statutes passed before the emigration of our "ancestors, applicable to our situation, and in amend"ment of the law, constitute a part of the com"mon law of this country."-1 Kent's Com., p. 472. It was to meet the pressing needs of a growing civilization on this continent that the Common Law, that had gradually been developed out of just such needs in England for a thousand years, was adopted by these colonies and states as their undoubted legal right. The colonial churches met their needs in precisely the same way, and adopted the Book of Common Prayer of the Church of England, with its offices, rites, and ceremonies, and made it, and the doctrine, discipline, and worship expressed or implied in it, their own, while in the interior arrangement of their Church edifices, with chancel, pulpit, and reading desk, and the use of the surplice, which was the clerical dress of the English parish clergy in public worship, they followed English law or usage; but beyond this they do not seem to have needed and therefore did not borrow anything from the laws or usages of the Church of England. Although they may have had the right to do so, they evidently considered the great mass of English canons and ecclesiastical law, inapplicable to their circumstances, and for that reason did not, either expressly or tacitly, adopt them. According to the English decisions, therefore, English ecclesiastical law was in no sense in force in the colonies, and as such, could not be used. According to the American authorities, it could be used, but it was not in force, because it was not used. |