CHAP. I.

Law of

The question at once arose, what is the law of this new organization, the Protestant Episcopal Church in the New the United States of America? It was evident that Organization. it could not, like a colonial church, claim as its birthright such English law as it might deem applicable to its circumstances, for the reason that in 1789, when this Church was organized, England was a foreign country, and an independent church, like an independent state, cannot be subject to foreign law.

So far as English laws and usages had been adopted by the colonial churches in their congregations, they were still the laws and usages of such congregations, so that, practically, the doctrine, discipline, and worship of the Church of England continued to exist in all the churches in the different states, precisely as before the Revolution.

But the question presented was, whether, technically, the new organization, as a matter of course, took over from the dioceses, or the churches of the different states, their laws and usages without any action on its part, or whether, to that end, such affirmative action was necessary.

The question was not, whether the same laws and usages that prevailed in the colonial churches should be recognized and adopted by the new National Church, for all were agreed as to that; but how was this to be done. It is not strange that the eminent lawyers of that day, whose judgment was that the government of the United States had no common law, and could adopt, as a source of jurisdiction, neither English nor colonial law, except by positive legislation, should have come to the same conclusion as to

CHAP. I.

the National Church, and its relation to English and colonial ecclesiastical law; and such seems to have been the fact. The House of Deputies of the General Convention of 1789 refused to admit the binding obligation of any ecclesiastical law, canonical or otherwise, upon the National Church, when confessedly applicable, further than as they should distinctly, and by legislation, recognize the same.*

The rule, as recognized by the Courts of the United States, is thus referred to by Chancellor Kent, (1 Kent's Com. 338):

66

"Mr. Du Ponceau, in his 'Dissertation on the 'Nature and Extent of the Jurisdiction of the Courts "of the United States,' has ably examined the sub"ject, and shed strong light on this intricate and "perplexed branch of the national jurisprudence. "He pursues the distinction originally taken in the "Circuit Court in Massachusetts, and maintains that "we have not, under our federal government, any "common law, considered as a source of jurisdiction;

while, on the other hand, the common law, consid"ered merely as the means or instrument of exercis"ing the jurisdiction conferred by the Constitution "and laws of the Union, does exist, and forms a safe "and beneficial system of national jurisprudence. The

courts cannot derive their right to act from the common law. They must look for that right to the "Constitution and law of the United States. But 'when the general jurisdiction and authority is given, "as in cases of admiralty and maritime jurisdiction,

*See Memoirs of the Church, page 171; Vinton's Manual, page 15; Hoffman's Law of Church, page 37.

"the rules of action under that jurisdiction, if not 'prescribed by statute, may and must be taken from "the common law, when they are applicable, because "they are necessary to give effect to the jurisdiction." And Chancellor Kent expresses his approval of the views thus presented.

The Convention of 1789, recognizing the same legal principle, refused to adopt the 4th Article of the Constitution framed by the Convention of 1785, providing that the Book of Common Prayer and Administration of the Sacraments, and other rites and ceremonies of the Church of England, should be continued to be used by the Church, as altered by the Convention, but instead thereof adopted Article 8 of our present Constitution, which is in these words:

"A Book of Common Prayer, Administration of 'the Sacraments, and other rites and ceremonies "of the Church, articles of religion, and a form and "manner of making, ordaining, and consecrating

66

Bishops, Priests, and Deacons, when established by "this or a future General Convention, shall be used "in the Protestant Episcopal Church in those states I which shall have adopted this Constitution."

The additional provision now found in Article 8th of the Constitution, as to the mode of making alterations in the Book of Common Prayer, was made by the Convention of 1848.

The resolution of the House of Deputies referred to, and the form given to the 8th Article of the Constitution, led to much dissatisfaction, as they were supposed to involve the denial of the existence, since the Revolution, of any laws or institutions in the

C. L.-3.

CHAP. I.

CHAP. I.

churches of the different dioceses, until enacted or provided by the General Convention; whereas, they involved no such denial at all, but simply asserted that the new National Church, in order to avail itself of the laws and institutions still in force and existing in the colonial churches, must by legislation adopt them, as there was no other way in which it could legally be done. This was only the application to the National Church of the same rule that has been recognized by the Supreme Court of the United States as applicable to the National Government in regard to its laws. It was a technical question as to the proper mode of reaching a result which all desired, and the judgment of the House of Deputies seems to have been fully sustained by the adjudications of the Supreme Court referred to; and certainly, as a matter of safety, if not of necessity, the action of the House of Deputies, as well as that of the Convention, was wise; for it would have been a troublesome, and perhaps dangerous experiment, for the Church to have attempted the exercise of a common law jurisdiction, in defiance of a well settled principle of law, recognized by the Courts of the United States. The course pursued by the Convention secured for the National Church, by legislation, beyond all possibility of doubt, the essential laws and usages that were in force in the colonial churches, but the form given to the 8th Article of the Constitution, taken in connection with the resolution of the House of Deputies, seems to be conclusive to the point, that the Convention considered no law or usage binding upon the National Church, without such legislation.

The ratification of the Book of Common Prayer by the General Convention of 1789, is in these words:

"This Convention having, in their present ses"sion, set forth a Book of Common Prayer and "Administration of the Sacraments, and other rites "and ceremonies of the Church, do hereby establish "the said Book; and they declare it to be the Lit"urgy of this Church, and require that it be received as such by all members of the same; and this Book shall be in use from and after the first day of Octo"ber, in the year of our Lord one thousand seven "hundred and ninety."

་་

The first paragraph of the Preface to the Book of Common Prayer is as follows:

66

'It is a most invaluable part of that blessed lib"erty wherewith Christ hath made us free, that in his "worship different forms and usages may, without "offense, be allowed, provided the substance of the "Faith be kept entire; and that in every church, "what cannot be clearly determined to belong to "Doctrine must be referred to Discipline; and there"fore, by common consent and authority, may be "altered, abridged, enlarged, amended, or otherwise 'disposed of, as may seem most convenient for the 'edification of the people, according to the various exigencies of times and occasions."

66

A very eminent canonist, Judge Hoffman, in his able work on the Law of the Church, pp. 40, 41, gives as his conclusion that the whole body of English ecclesiastical law, with certain unavoidable qualifications, was the rule of the colonial churches,

CHAP. I.