for discipline and rule.

On what possible ground can this identity be asserted, if the latter important fundamental element of identity is discarded?

Again, Another argument may be used which strikes me as of great weight. It is stated by the highest authority, that "in every Church, whatever cannot be clearly determined to belong to doctrine, must be referred to discipline; and that this Church was far from intending to depart from the Church of England in any essential point of doctrine, discipline, or worship, or farther than local circumstances require.'

Let us ascertain what is the sense of the term " discipline," when used in ecclesiastical writings.

It has, I apprehend, two meanings: First, The administration of punishment for offenses. Next, The regulation and government of the Church. The following passage from Bishop Gibson affords an illustration of the first meaning: "The very office of consecration, so often confirmed by parliament, warrants every Bishop, in the clearest and fullest terms, to claim authority by the Word of God, for the correcting and punishing of such as be unquiet, disobedient, and criminous, i. e., for the exercise of all manner of spiritual discipline.” †

The other meaning is of more importance to the present argument. In the preface to the English Book of Common Prayer (2d and 5th Ed. VI., "Of Ceremonies, why some be abolished and others retained,") is the following clause: "Although the keeping or omitting of a ceremony, in itself considered, is but a small thing, yet the wilful and contemptuous transgression of a common order and discipline is no small offense before God."

Again, 'And, besides, Christ's Gospel is not a ceremonial law; but it is a religion to serve God, not in the bondage of the figure or shadow, but in the freedom of the spirit, being content only with those ceremonies which do serve to a decent order and godly discipline."

The Book of Common Prayer received some alterations after the accession of James, and in the proclamation of that monarch is the following sentence: "And now, upon our entry into this realm, being importuned with informations of many ministers, complaining of errors and imperfections in the Church here, as well in matter of Doctrine as of Discipline," etc.‡

And in the statute (13th-14th Charles II., ? 1,) the publication of all books bringing into contempt the Doctrine or Discipline of the Church of England is prohibited.

But I do not find anywhere a passage more admirably illustrative of this subject, than in the preface to the Canons to the Scottish Church, adopted in 1839: "The doctrines of the Church, as founded on the authority of Scripture, being free and immovable,

*Preface to the Book of Common Prayer, 16th October, 1789. †Gibson's Codex, vol. 1, p. 18.

Statutes at Large, vol. 2, p. 438.

ought to be uniformly received and adhered to, in all times and all places. The same is to be said of its government, in all those essential parts of its constitution which were prescribed by its adorable Head. But in the discipline which may be adopted for furthering the purposes of ecclesiastical government, regulating the solemnities of public worship as to time, place, and form, and restraining and rectifying the evils occasioned by human depravity, this character of immutability is not to be looked for."†

Now, what did the discipline of the English Church comprehend? It embraced the establishment and prescription of the Book of Common Prayer, to be used throughout the realm; the adoption by ministers of, and subscription to the articles of faith; the regulation of rites and ceremonies by canons and rubrics; and just as much, just as fully and absolutely, did it comprise the whole body of ecclesiastical law by which the Church, in all other particulars, was controlled and directed. That this whole body of discipline was the rule of the colonial church, with the unavoidable qualifications before adverted to, is a point which admits not of dispute.

When, then, we find our Church declaring, in one of its most solemn acts, that all which is not of doctrine is of discipline; that she meant not to depart from the Church of England in doctrine or discipline, further than local circumstances required; when we find that the body of English ecclesiastical law was an undoubted part of discipline in that Church and in the colonial church; when we find no discrimination made between what of discipline is binding and what is annulled, the conclusion seems irresistible, that this law, with necessary modifications, retained the same authority after the Revolution which it possessed before.

And what advantage can we reap by severing the tie with the Church of England, in this particular, when the wisest of our fathers cherished the connection in every other, as the pillar and foundation of truth? Far from their thoughts and feelings was that pride of isolation and arrogance of judgment, which would treat the Catholic Church as the newly-reared fabric of its members' will; "as if it were a body in itself, indebted to no one, related to no one, without fathers, without brethren-as if it had fallen, like the Roman sacred shield, immediately from Heaven."

And what advantages do we not lose, when we disclaim this healthful and time-honored union? Looking at the question merely as a lawyer and searcher for truth, we abandon, (and for a dim untrodden path,) the road illumined by the shining lights of English intellect in the Church and on the bench. For our instruction and guidance we have the well-known names of Coke, ' Holt, and Hardwicke, of Nichols, Stowell, and Lee, in the tribu

†Apud Burns' Ecc. Law by Phillimore, vol. 415. Hooker thus uses the term, "As we are to believe forever the articles of evangelical doctrine, so the precepts and discipline we are in like sort bound for ever to observe."

The following occurs in an oration of Cicero, Hæcgitur est tua Discipiina, sic tu instituis adolescentes?"-Pro Calo.

nals of justice; of Ridley, Gibson, Stillingfleet, and a cloud of others, among the English cononists. Under their auspices, we shall find "happier walls" than our own abilities can rear, or our own fancies can devise. Here we may attain to certainty, the mother of quietness and repose.

**

*

The result of the preceding investigations, it is submitted, is this:

First. That the body of the foreign canon law is presumptively without force or authority in England; and that in every particular case where it is sought to render one of its regulations available, the burthen of proving that such regulation had been adopted in England, rests affirmatively upon the party adducing it.

That the legatine constitutions of Otho and Othobon stand upon the same footing.

Second. That the provincial constitutions have the presumption of legality and obligation attending them; and whenever applicable to a given case, impose the task upon the adverse party of showing why they should not prevail.

Third. That in addition to these elements of law, the statutes of the realm, the decisions of the civil tribunals, the cases and precedents in the spiritual courts, made up the body of that system of regulations known as the Ecclesiastical Law of England.

The comments and writings of eminent men were also sources of information; and all these, except the statutes, formed the testimonials and witnesses of the common law of the Church, in the same manner as similar records and reports are the evidences of the common law of the realm.

Fourth. That the canons of 1603, as well the acts after the Reformation, also constituted a portion of that law binding upon the clergy, but only binding upon the laity where admitted by long custom, or express recognition of the civil tribunals.

This, then, formed the great body of the English ecclesiastical law, when the Church was planted in this country; and this constituted the body of the law of the Church in the colonies. Many modifications arose from specific provisions of charters, or particular laws of the colonial assemblies, as well as from those changes in the situation of the people and usages of the community, which rendered some provisions incompatible or inapplicable. Then came the Revolution. It brought with it many necessary alterations in the law and discipline, as it did in the liturgy of the Church. These have become sufficiently defined in our system. And then the constitution of the Church at large, and the organization of the several dioceses, have led to a body of regulations partly original, partly adapted; and these, with statutes of the civil authority, cover a very extended field of law.

But there will yet remain many cases not provided for. In these, I submit, we are to ascertain what was the law of the

English Church. By that, such cases are presumptively to be decided; leaving it to be shown that such law is repugnant to some principle, settled custom, or institution of our own, secular or ecclesiastical.

Again, another proposition results from these views, which it is supposed will meet with little objection: that upon every question of construction of a phrase or precept, its admitted acceptation in the English law is to prevail, until otherwise expressly interpreted.

I may state the result in these propositions:

I. The English canon law governs, unless it is inconsistent with, or superseded by, a positive institution of our own.

2. Unless it is at variance with any civil law or doctrine of the State, either recognized by the Church or not opposed to her principles.

3. Unless it is inconsistent with, or inapplicable to, that position in which the Church in these States is placed.

And let it not be thought, that in this loyalty to the English law, we abjure the liberty of a National Church, or admit a subserviency to a foreign authority. We do not break in upon the principle embodied in the statute 25 Henry VIII., and asserted in the noble language of the declaration of liberties of the Church in Maryland.

In submitting to the guidance of English authority, we render no other allegiance than every honest judge in the land renders to the decisions of Westminster Hall in civil matters. These decisions are the witnesses and testimonials of the law, liable to be discredited, open to controversy; but standing, until this is done, sure and faithful witnesses. So the cases in the ecclesiastical courts are the credible expositors of English canon law; and it is that law to which we are to resort for guidance in all unsettled points. We shall find this submission more useful and more noble than the license and the anarchy of an unrestricted, undirected, and unenlightened judgment.

Yet it is not that the foreign canon law is to be disregarded. That of which Lord Stowell declares, that "whatever may be thought of its pretensions to a divine origin, it is deeply enough founded in human wisdom: "-that which continues to influence even the stern features of the Scottish Reformation, may not be contemned.* But let it be resorted to with caution, and watched with the jealousy of the great doctors of the English Church. "It sprang from the ruins of the Roman empire, and the power of the Roman pontiffs," and partakes largely of the spirit of absolutism which might be expected from its origin.

*See FERGUSON'S Consistorial Law of Scotland. Introduction.

APPENDIX B.

OF THE CANONS OF THE CHURCH.

Upon this question of the force of the canons of the General Convention of 1789, and the power of that body to pass them, there are two theories. One is, that the convention had as ample power to pass these canons, as it had to adopt a constitution; the other, that the authority was assumed, and the canons became the law in the several states only when actually ratified, or from long acquiescence and submission.

It must again be noticed, that most of these canons are not to be supported upon any clause of the Constitution-were framed irrespective of it-and were actually passed before the Constitution was adopted.

Let us consider the consequences of the doctrine that the canons became the law only by ratification or acquiescence. By the one or the other, they became the settled law of the whole Church of the United States. What power, then, had any subsequent General Convention to repeal or modify them? Was not any act of repeal or modification in itself invalid, only capable of receiving validity from express sanction, or long submission?

And in the absence of express sanction to the repeal, what length of time would have amounted to proof of acquiescence, so as to render the repeal binding? If an express sanction to any set of canons had been given by a diocese, would it amount to a permission, or a compact? If the former, it was at any moment revocable. Would the revocation of an assent to the repeal have reinstated the repealed canons?

Again,-The original canons were, by a compact of the whole Church, (at least in the ten statés,) the general law. If the General Convention could not repeal them, neither could any number of dioceses short of the whole, or short of a majority. Was the repeal in abeyance, until all or a majority had acted, or until such a period had elapsed as warranted the presumption of the assent of all?