OF THE STANDING COMMITTEE.
Chancellor of the Diocese.
CULVER, PAGE, HOYNE & CO., PRINTERS.
118 AND 120 MONROE STREET
279 WEST TAYLOR STREET, CHICAGO, ILL.,
February 20, 1875.
To the Bishops and Standing Committees of the Protestant Episcopal Church:
FATHERS AND BRETHREN: A few of the lay brethren of this Diocese--we speak by their own authority--have prepared a memorial against the consecration by the Bishops and Standing Committees of Dr. JAMES DEKOVEN, our Bishop-elect, and, with such signatures as they could obtain, have transmitted the same to you.
Against such a step, on the part of a mere fragment of the minority in our late Special Convention, the Standing Committee, acting as the ecclesiastical authority, have authorized me, by way of solemn protest against an action whose only tendency is to engender bitterness and strife, to send to you the legal opinion of the Chancellor of the Diocese, as to the legal points raised in the memorial--an opinion which has met with the endorsement of some of the great lights of the Bench and Bar in this city and elsewhere, and of the Convention itself, by a very large majority.
The theology of the memorial is its own best answer. The memorialists speak only for themselves, and not for any considerable minority of the Diocese, nor for very many of those who in the election for Bishop voted with them. With the many it was a manly preference of persons, and they unite with the majority in gracefully submitting to the voice of the Church. We speak for the Diocese, when we say that we know no reason why our Bishop-elect should not be consecrated, and we are assured that, as our Bishop, he would find a harmonious and prosperous Diocese. With sentiments of profound respect, I am
Your servant in Christ,
GEO. F. CUSHMAN,
President Standing Committee, Illinois.
279 WEST TAYLOR STREET, CHICAGO, ILL.,
February 15, 1875.
Hon. S. CORNING JUDD,
Chancellor of the Diocese of Illinois, Chicago,
Since the adjournment of the late Special Convention, one or two questions have been raised, in the Press and elsewhere, concerning the construction of our Constitution, Canons and Rules of Order, in regard to which this Committee would be glad to have your opinion.
It has been claimed that the vote of the one parish, which was divided upon the question of the confirming by the Laity the nomination of Dr. De Koven, instead of being "neutralized," and therefore thrown out, should have been counted against him.
It is also claimed that the votes of the Chancellor of the Diocese and of the Chancellor of the Cathedral to approve the nomination were illegal, and that without them the nominee did not receive a majority of the Lay Order, and that therefore no lawful and proper election was made by the Convention.
We would therefore respectfully request you, as our Canonical adviser, to give to the Committee, in writing, your opinion upon the points thus raised, and also your opinion as to the bearing these points can lawfully and canonically have, in any view of them, upon the matter of the consent to the consecration necessary to be obtained from the majority of the Standing Committees and Bishops.
By order of the Committee,
GEO. F. CUSHMAN,
The following opinion of the Hon. THOMAS DRUMMOND, Judge of the United States Circuit Court, in regard to the election of Rev. JAMES DEKOVEN, D. D., Bishop of Illinois, was addressed to the Bishop of a neighboring Diocese:
CHICAGO, Ill., Feb'y 15th, 1875.
MY DEAR BISHOP: In your letter of the 9th, you say doubts have been ex. pressed upon the validity of the election of DR. DEKOVEN as Bishop of Illinois, and desired my opinion on the point.
I have accordingly examined the subject with some care, and beg leave to say that, in my judgment, the legality of his election cannot be successfully questioned Independent of the merits of the case, upon the facts as I understand them, I am of opinion that the Bishops and Standing Committees cannot go behind the authentic evidence of the election, the certificates and testimonials famished by the Diocesan Convention. Certainly, in the absence of fraud, which is not here claimed to exist, these are conclusive evidences of election. The Convention of the Diocese is the only authority to decide who is elected Bishop. The fourth article of the general constitution declares, in explicit language, that every Bishop shall be elected agreeably to such rules as shall be fixed by the Convention of the Diocese. When, therefore, a Diocesan Convention has established the rules and made the choice in conformity therewith, the Diocese has acted as prescribed, and to set aside its action is in effect, to disregard this provision of the Constitution. And, if it be said the election should be according to the rules, the answer is--whether it is or not is to be determined by the Convention of the Diocese. What the rules shall be, what their construction, what the qualifications of members, and who shall vote, are all matters referred to that Convention. And when a question arises upon any of these points, and is decided by the Convention, its action is final.
It is a principle of universal application that every deliberative body has authority to decide who are its members, and who shall vote, unless there is in the fundamental law of its creation, a power reserved elsewhere to change or reverse its decision. So far from that being true in this case, we have seen, the General Constitution provides that each Diocesan Convention shall be the arbiter of the election of its own Bishop. Of course it is here assumed that there is no violation of any fundamental law of the Episcopal Church in the United States, of which it is not pretended the Convention was guilty in this instance.
The General Canons provide that evidence of the election, as well as certain certificates and testimonials, setting forth what they shall be, shall be placed before the ecclesiastical authorities. They have the undoubted right to enquire whether these are in conformity with the canonical rules. But if they are, then the person named is to be regarded as the Bishop-elect of the Diocese. If it were otherwise, the Bishops and Committees would be acting as a Court of Appeals upon the election an authority which has not been conferred on them by the General Constitution or Canons. It would be an attack on the independence of the Diocese. Indeed, this principle is so far true that if by possibility a question could arise as to the validity of the election, the authorities would be compelled to refer it back to the Diocese, in which, only, the power and right to elect a Bishop exist. It will be observed that I am now speaking of the election, not of the assent or non-assent to the consecration.
This of itself is an answer to all the cavils against the legality of the election. But if we examine the facts as they occurred, the answer is equally satisfactory.
Testing the election by the ballots and the Constitution, Canons and practice of the Diocese, there can be no doubt of, the due election of DR. DEKOVEN. No question is made upon the vote of the Clergy. It is true that the vote of three clergymen was challenged, but if it be admitted they voted for DR. DEKOVEN, and that their vote was illegal, it would not have changed the result of the clerical vote, We may therefore turn to the lay vote.
On the final ballot the lay vote was as follows: whole number, sixty, if we include the divided vote. Of these, one parish or congregation was divided, there being only two delegates of the parish present who were, however, entitled to cast its vote. One of them voted aye, the other nay. This left fifty-nine votes. Among these, it is said, were the votes of the Chancellors of the Diocese and of the Cathedral. Their right to vote was contested by some members of the Convention, and it is assumed they both voted aye. I am not aware that any competent evidence exists how they voted. There is none upon the record. The vote was by ballot and secret; and how can the Bishops and the Committees, without an examination and full disclosure of all the ballots, decide how each member voted? And if an examination is mode, it must be by the Diocesan Convention alone. It can hardly be claimed that upon common rumor, or moral evidence, or from the generally received or eye i declared opinion of the preference of the Chancellors, their votes should be dedui ted from the ayes. There must be some competent evidence of the fact to authorize such an act.
But if we concede that the reception of two illegal votes would render the election invalid, unless it can be demonstrated that the result was not thereby changed, and admit both the Chancellors voted aye when they had no right to vote, then there were twenty-nine ayes and twenty-eight nays, and if the divided vote should be included among the nays, there was not a majority of the Jay vote.
The twelfth article of the Diocesan Constitution requires the voting by the laity, in all matters, to be by congregations or churches, and declares each church entitled to one vote, and no more; a majority of both orders being decisive; the meaning plainly being a majority of the votes cast. It is contended that when a church or congregation divided its vote, it should have been counted nay, and in this case the divided vote should have been one vote added to the twenty-eight nays. Why did the parish vote nay more than aye? It is a mere arbitrary and conventional rule which declares, contrary to the fact, that such vote is in the negative. In truth, it is neither in the affirmative nor in the negative. There is nothing in the nature of things--no sound principle in philosophy--which demands that a vote, under such circumstances, should be counted in the negative. Whether it should or not, is a point about which men may perhaps differ. It is not necessary to decide here which is the better rule. One view of it may be illustrated by the case under consideration. The two delegates of the divided parish had each half a vote. If they had united they would have made one vote, but as it could not be added, but must be deducted, one half from the other half, there is no vote left; it becomes a blank or neutralized vote. The unity necessary to produce a vote is destroyed. Another view of it may be, it is still a vote, though half aye and half nay. The Constitution of the Diocese males no express provision in such a case. The same constitutional rule has existed as to the lay vote of congregations for many years, in this Diocese, and was in force in 1851, when an order was made that in an equal division of the lay vote of a congregation, the vote of such congregation should be neutralized. That rule of order has been in operation ever since, and uniformly acted on. It was a standing order when the Constitution was revised in 1871, and has always been applied to the new Constitution in practice; and in accordance with such practice, a divided vote of a congregation has not been counted on either side. It is clear, therefore, that the divided vote of the one parish on the final ballot did not become a factor in the calculation, and so DR. DEKOVEN had a majority of the lay as well as the clerical vote, assuming the two Chancellors voted aye, and excluding their votes from the count. For if it were a matter of doubt or difficulty, it may be asserted with great confidence, that under a practice so uniform, long continued and acquiesced in, no churchman in Illinois, much less elsewhere, can object to the application of the principle to the election of DR. DEKOVEN. The practice operates as a conclusive legislative construction of the clause in the Diocesan Constitution, and as an estoppel upon a majority of the members of the late Convention, who, it is believed, participated in the adoption of the Constitution and Canons of 1871. It is understood that in the House of Deputies of the General Convention, where the vote is taken by Dioceses, whether by positive enactment, construction, or by practice, it is not necessary to enquire, a divided vote is counted in the negative, and we have seen recently, in a celebrated case, the practical result of the rule in that body. An actual majority of all the members was overborne by a minority. No one can say there are not serious objections to such a rule; but it is for the House of Deputies or the General Convention to adopt such regulations as it sees fit, upon the manner of voting in the House of Deputies. But in the absence of a general law on the subject, there can be no pretense that the rule applies to the Diocesan Conventions.
It follows, therefore, in my opinion--
1st. That the authentic evidence of the election, together with the certificates and testimonials furnished by the Diocesan Convention, should be received by the Bishops and Standing Committees, to establish the fact that DR. DEKOVEN is Bishop-elect of the Diocese of Illinois.
2. That upon the final ballot, tested by the Constitution, Canons and practice of the Diocese of Illinois, DR. DEKOVEN received a majority of votes, both of the clerical and lay orders in convention assembled and voting.
It will be found, however, upon examination, that the right of the two Chancellors, and particularly the Chancellor of the Cathedral, to vote, rests upon very strong grounds. The Cathedral is dot a church or congregation within the ordinary meaning of those words as used in the Constitution and Canons. But it is a Diocesan Institution governed by the Bishop, and not by wardens and vestry or trustees like a church, and has a regular congregation which worships within its walls. Technically and literally the Clergy of the Cathedral are not within the terms of the first section of the fifth article of the Constitution of the Diocese, and so if we "stick in the bark" they might be excluded from seats in the Convention. They are, besides, appointed by the Bishop, and not elected by any church or congregation. And yet they are clearly within the spirit of the article, and accordingly, when by the fourth Canon of "the Institutions of the Diocese," the acting Clergy of the Cathedral were declared to be entitled to seats in the Convention, as well as the Chancellor of the Cathedral and two other laymen as lay delegates, on the certificate of the Bishop, no question seems to have been at any time made of the right of the acting Clergy to vote. The Cathedral congregation is not like the congregation of an ordinary Church in the Diocese. It has not imposed on it the same burdens, nor has it the same privileges. Clergy and congregation essentially belong to the Episcopate, and yet there would seem to be a strong equity in favor of the representation of both in the Convention. It is true that the lay delegates are, like the Clergy, appointed by the Bishop. But where this is done for a series of years without objection or with the acquiescence of the congregation, they may not unfairly be treated as representatives of the Cathedral congregation in the Convention. The Chancellor of the Cathedral was not a lay delegate of a congregation within the literal terms of the third section of the fifth article of the Constitution, chosen by the vestry of a church or by the congregation, but he took his seat under the Canon, and has held it without objection until now, and was, in the late Convention, the only lay delegate of the Cathedral congregation.
The right of the Chancellor of the Diocese seems to rest on a narrower basis. He cannot be said to be the representative of any church or congregation, but of the Diocese as a whole. He, by another Canon, is admitted "to all the privileges of lay membership."
The Constitution was revised and put in its present form in 1871. The same committee that reported the Constitution also reported the Canons named as they now stand, and the same Convention adopted both. Obviously the language of the Constitution was not considered as exclusive, when applied to the Chancellors. The privileges granted by the Canons have been construed practically as including the right to vote. A question was made as to the exercise of this right by the Chancellor of the Diocese, before the late Convention, and in effect decided in favor of the right.
It is due to candor to say that I think there were objections, in part perhaps constitutional and in part affecting the rights of representatives in the Convention, to the adoption of these two Canons which clothe the Chancellors with the privileges of lay membership. But the Convention has considered and decided under the Canons by which they claimed their seats. The strong argument in favor of their right is the construction thus given to the Constitution, in the contemporaneous enactment of the Canons, by the body that made and adopted it, and the practice under it; and I hold that when the right of election is vested solely in the Convention of the Diocese, and questions arise under its Constitution, Canons or rules, touching the election, the Convention itself has full authority to determine all such questions. This principle I consider vital to the independence of the Diocese, and clearly announced in the General Constitution of the Church.
Since the foregoing was written, I have examined what is termed the "Memorial" of those who opposed the election of DR. DEKOVEN, in the Convention. I deem it only necessary to advert to one point. It assumes that under "the uniform practice and construction of the Church," the divided vote could not be disregarded, hut must be counted in the negative. I understand that if this means "the uniform practice and construction" of the Convention of the Church in this Diocese, it is an assumption not warranted by the facts. According to my information, "the uniform practice and construction of the Church," in this Diocese, has been the reverse. This being so, the whole argument of the "Memorial" based on the rejection of the divided vote falls to the ground.
I am very truly yours,
39 ASHLAND BLOCK,
Chicago, Feb. 16, 1875.
MY DEAR DOCTOR:
I have the honor to acknowledge the receipt of your official communication as President of the Standing Committee, of yesterday's date, requesting, on behalf of that body, my opinion in writing on certain points indicated, and which points will appear in what follows:
THE DIVIDED PARISH.
1. "It has been claimed," you say, "that the vote of the one parish which was divided upon the question of the confirming by the Laity the nomination of DR. DEKOVEN, instead of being 'neutralized,' And therefore thrown out, should have been counted against him."
The second section of Article 15 of the Diocesan Constitution provides, in respect to the election of a Bishop, that--
"The Order of the Clergy shall nominate, b; ballot, some fit and qualified clergyman for that office; and if this nomination be approved by the Lay Order, voting thereon by ballot, he shall be declared duly elected. If two-thirds of all the Clergy entitled to vote be present, and two-thirds of all the parishes entitled to vote be represented, then a majority of each Order shall determine a choice," &c.
It is manifest from these provisions themselves, without going beyond the wording thereof for their construction, that the parishes referred to are those and those only represented in the vote. The language is, "if this nomination be approved by the Lay Order voting thereon"--if "two-thirds of all the parishes entitled to vote be represented," &c. "Represented" where, or in what? Why, clearly in the "voting thereon." Now, the parish referred to that was divided on the question of approval voted neither for nor against such approval. The division among the delegates amounted simply to a refusal on the part of the parish to vote either "aye" or "no." Surely, this refusal to vote either "aye" or "no" cannot be construed as a vote in the negative. The division indicated, in reality, one-half of a vote in the affirmative and one-half in the negative, but no half votes are known in the laws of the Diocese. A ballot deposited showing that the representatives of a parish are divided on the pending question amounts merely to what is sometimes called a "divided vote," or, in other words, a blank--no more, no less; and it is a well settled principle of parliamentary law that blanks cannot be counted. In Rule 8, for conducting business in the House of Representatives, it is provided that--
"In all ballotings blanks shall be rejected, and not taken into the count in the enumeration of rotes, or reported by the tellers."--Jefferson's Manual, page 136.
And the same rule prevailed in the General Convention under Article II of the Constitution of 1785, which was as follows:
"There shall be a representation of both Clergy and Laity of the Church in each State, which shall consist of one or more Deputies, not exceeding four of each Order; and in all questions the said Church in each State shall hare one rote; and the majority of suffrages shall be conclusive."
One instance will suffice to illustrate the point. In 1786, while this Article was jet in force and unaltered, the question came before the Convention (five Dioceses being represented), "Whether the words 'He descended into Hell' should be restored in the Apostles' Creed." The ayes and noes being called for, New Jersey and South Carolina voted aye, and New York, Pennsylvania and Delaware were divided; yet the proposition was declared carried. The recital of the Journal is: "And so the words are to be restored, there being two ayes and no negative."--Jour. Gen. Conv'n, 1786,pp. 59,60. It was held, under that Article, "that a 'Divided Vote' was no 'Suffrage,' but a blank vote," and did not count. (See Vinton's Manual on Canon Law, page 118, et seq.) The rule of representation provided by that Article was quite as marked as that of the Article of our Diocesan Constitution under consideration. It may be added that the same practice of not counting divided votes prevailed in the General Convention for many years, even after the Article quoted was changed and made more stringent in its provisions as to a majority vote.
The language of the Article of our Constitution referred to, the principles of parliamentary law in such cases, and the precedents indicated, all point to the same conclusion in the matter in question. Bat we are not left to these to determine the point One of the standing "Rules of Order" of our Diocesan Convention, and which has been in force for more than twenty years, is as follows:
"Questions shall be decided but in this form, viz.: 'As many as are of the opinion that (as the case may be), say Aye;' and, after the affirmative voice is expressed, 'As many us are of the contrary opinion, say No.' If the President doubt as to the result of the Tote, as taken above, or a division be called for, the Convention shall divide; those in the affirmative shall first rise from their seats, and afterward those in the negative. No congregation shall be entitled to be counted as more than one rote amongst the Laity. And an equal division of the Lay Delegates from a Congregation shall neutralize the vote of such Congregation."
This rule was adopted at the regular Annual Convention of the Diocese held at Quincy in June, 1851, and will be found on page 37 of the Journal of that Convention, word for word, as it has ever since remained and still remains in full force. The action of that Convention adopting a aeries of rules, including this one in question, is recorded on the 4th page of the Journal; and this aeries has been republished at various times since that date, the last republication having been made in 1874, by order of the Convention, though the order does not seem to appear in the Journal of that year. Ever since the adoption of the Rules in 1851, as indicated, the "Reading of the Rules of Order" has constituted a part of the regular proceedings at the opening of each Convention; and by Canon 4, Title I, of the Diocesan Canons, such reading is required to be had at each Annual Convention, as the first thing to be done in "The Order of Business."
Thus it will be seen that the Rule under consideration is deeply rooted in the laws of the Diocese. The Constitution in its present form was adopted in 1871, and this Rule being then in force, the Article in reference to the election of a Bishop, and all questions under the Constitution, touching an equal division, in Convention of the Lay Delegates from a parish, must be construed with reference to this Rule that thus stands unrepealed. The Article in question was adopted in the light of the Rule, and with reference to its provisions. And it is important to add that the practice in the Convention, ever since the Rule was adopted in 1851, has been uniformly to treat a divided parish as "neutralized," and not as represented in the vote. Had it been intended to change this practice, by the adoption in 1871 of the Article of the Constitution under consideration, such intention would have been expressed in no uncertain words. Nor was there ever any attempt to modify this Rule or to break its force until the recent Special Convention, when a motion to amend it by striking out the last clause (being that in respect to the "division of the Lay Delegates from a Congregation") was laid on the table by the following very decided vote: Clergy: Ayes, 45; Noes, 21. Laity:' Ayes, 33; Noes, 20. This vote was taken before any ballot for Bishop was had, and must be conclusive of the whole question, then, for the first time, brought into controversy.
It has been suggested, by those who desire to count in the negative a parish half of whose delegates vote in the affirmative, that this "neutralizing" clause of the Rule quoted relates to legislative action only. The rule says nothing of the kind, and the idea proposed is the fruit of a vivid imagination. Indeed, to my mind, the suggestion is as absurd as the proposition to count affirmative votes in the negative is monstrous. The Rule provides, in the outset, that "Questions shall be decided but in this form, viz.: 'As many as are of opinion,'" etc., "say Aye;" and "As many as are of the contrary opinion, say No." And hence it is argued that legislative action only is contemplated by all the provisions of the Rule. This is a non sequitur. The last two clauses of the Rule have relation to other as well as to legislative questions. The clause preceding the last declares that "No Congregation shall be entitled to be counted as more than one vote amongst the Laity." If the construction suggested is tenable, that all the provisions of the Rule relate only to legislative action then the clause just quoted must imply that in all matters other than legislative action, (such, for instance, as the election of Deputies to the General Convention), a Congregation might "be counted as more than one vote amongst the Laity."
I have remarked above, that the vote to table the motion to strike out the clause referred to must be conclusive of the whole question. I mean, of course, that it must be so conclusive, even if there was any open question in the premises before, which there was not The motion to strike out was made with especial reference to the voting for Bishop that was then about to take place; and it brought the Convention face to face with the question as to what rule was to govern the matter of divided parishes, in choosing a Bishop. Article 4 of the General Constitution provides that "The Bishop or Bishops in every Diocese shall be chosen agreeably to such rules as may be fixed by the Convention of that Diocese." Now, if, before the vote referred to, there was any room for discussion as to the meaning of the Constitution, or of the Rule under consideration, in respect to whether a divided parish should be counted or not counted in choosing a Bishop, the question was closed beyond all dispute after the vote taken; for by the vote the Convention "fixed" the rule as to such divided parishes; and there is no authority resting anywhere to go behind that action. Any attempt to do so would be in direct violation of the General Constitution as indicated. It was in the power of the Diocesan Convention to say what votes should be counted, and what not; and that body having determined that "an equal division of the Lay Delegates from a Congregation" should "neutralize the vote of such Congregation," the matter was ended, and placed beyond dispute and beyond appeal.
From what precedes, it must be apparent to every candid mind, that the parish that was divided on the question of approving the nomination of DR. DEKOVEN, at the recent Convention, was properly counted as "neutralized," and not counted as represented in the "voting thereon."
I have discussed this matter thus at length, because its correct determination dispels all cavil as to the legality of DR. DEKOVEN's election, no matter what view may be taken in regard to the right of the Chancellor of the Cathedral and of the Chancellor of the Diocese to vote for Bishop; for there were only 59 votes cast on the question of approving the nomination, if, as to my mind seems demonstrated, the ballot of the parish referred to, indicating "divided," could not be counted as a vote: and if from these 59 the votes of the two Chancellors are deducted, 29 would constitute the necessary majority, being two less than were cast in the affirmative; hence, if the votes of the two Chancellors were in favor of approving the nomination, and if they be deducted from the 31 affirmative votes, the required majority of 29 still remains intact, and DR. DEKOVEN'S election is complete, regardless of the two disputed votes.
THE VOTES OF THE CHANCELLOR OF THE CATHEDRAL AND THE CHANCELLOR OF THE DIOCESE.
2. But what about these two votes? The records contain no evidence that the two Chancellors voted at all in the matter of electing a Bishop; nor yet is there anything to show how they voted, in case they did vote. The voting was by ballot. The ballot implies secrecy. In what way, then, is it authoritatively ascertained that either the Chancellor of the Cathedral or the Chancellor of the Diocese voted at all for Bishop, and, if at all, how? It will not do to answer that those officers were open advocates of DR. DEKOVEN'S election, and that it follows from this that they voted for him. Such reasoning may produce a fair supposition or moral conviction, but such supposition or conviction is not proof. Surely the Bishops and Standing Committees of other Dioceses cannot take it for granted that illegal votes were cast, nor that they were cast, for DR. DEKOVEN, if cast at all. Nor yet have they any right or authority whatever to institute the least inquiry into the matter. The moment they undertake this they tread upon dangerous ground, and threaten the independence of the Diocese concerned. Neither Bishops nor Standing Committees can impeach, or even question, the action of a Diocesan Convention other than their own, in such a matter. And upon this view I might rest the whole question of the right of these Chancellors to vote, conceding, for the argument, that they did vote. It is enough that the Convention of Illinois decided that they had the right to vote. Behind this, neither Bishops nor Standing Committees have the right to go. The Convention is the sole judge of its membership and of the qualifications of its voters; and he who, in the least, impeaches this authority, enters a field that bristles with perils.
And yet, it may be well that all who have any curiosity in that direction should be advised of the grounds upon which is based the right of the Chancellor of the Cathedral and of the Chancellor of the Diocese to a seat and a vote in our Diocesan Convention; and especially in order that they may know how utterly unfounded are the imputations of illegality so freely made against the part those officers were permitted to take in the recent Convention. This is doubtless the reason why your Committee ask my opinion in writing in this regard, as also in respect to the divided parish; but whatever motive prompts the request, I most cheerfully comply.
Article 5 of the Diocesan Constitution provides that "The Convention shall be composed of Clergy and Laity;" that "The Lay members shall consist of a delegate or delegates, not exceeding five, from each Congregation in the Diocese in union with this Convention;" that "They (the Lay members) shall be chosen by the Vestry or Congregation," &c. The 15th Article provides, as we have before ascertained, that "The election (of a Bishop) shall be made in the following manner: The Order of the Clergy shall nominate by ballot some fit and qualified Clergyman for that office; and if this nomination be approved by the Lay Order, voting thereon by ballot, he shall be declared duly elected. If two-thirds of the Clergy entitled to vote be present, and two-thirds of all the parishes entitled to rote be represented, then a majority of each Order shall determine a choice," &c.
It will thus be seen that the "Lay members" of the Convention "consist of a delegate or delegates" "from each congregation," "chosen by the Vestry or Congregation;" that the "Lay Order" approve or disapprove of the nomination for Bishop; and that if a certain proportion of the Clergy are present and the same proportion of "the parishes" represented, "then a majority of each Order shall determine the choice." It was argued at the recent Convention, for the first time, in substance, that these provisions are exclusive of all other factors in the Convention. If this be true, the exclusion flows by implication and not by express enactment; for there are no provisions in the Constitution expressly prohibiting any other factors in the business of that body. Canon 4, Title 17, of the Canons of the Diocese, declares that the Cathedral "is an essential organ of the Bishop," and "is a representative institution of the Diocese," and it provides that "therefore the acting Clergy of the Cathedral of Saints Peter and Paul shall be entitled, as settled Ministers, to a seat in the Convention, and the Chancellor of the Cathedral, with two other Laymen, shall be admitted, under the certificate of the Bishop, as its Lay delegates, with the usual privileges." There is no provision of the Constitution that admits the Clergy of the Cathedral to membership in the Convention; and if the new theory that is now proclaimed be correct, they must be relieved from part or lot in that body, as well as the two Chancellors. The Chancellor of the Cathedral is an officer holding his position at the will of the Bishop. The gentleman who at present fills that place holds his commission from the late Bishop WHITEHOUSE; and it may be remarked, in passing, that he alone represented the Cathedral congregation at the recent Convention, and also at the last September Session of that body, simply because there was no Bishop to grant the necessary certificate to the "two other Laymen." The Chancellor of the Cathedral was not and could not be deprived of his "privileges," by reason of the fact that the "two other Laymen" did not appear to share such "privileges" with him. Canon 5 of Title IV, referred to, reads as follows:
"There shall be elected by the Convention an officer learned in the law, under the title of 'Chancellor of the Diocese,' whose duty it snail be to act as the legal counselor of the Bishop and of the Standing Committee in matters affecting the interests of the Church, as his professional counsel may be asked or required. As Chancellor of the Diocese he shall be ex-officio entitled to a seat in the Convention, with all the privileges of Lay membership. The Chancellor of the Diocese shall hold his office for the term of three years, and in the event of a vacancy, the Annual Convention next ensuing shall «lect a successor for the full term of three years."
Thus it will be seen that neither the Chancellor of the Cathedral nor the Chancellor of the Diocese come within the express language of the Diocesan Constitution that the "Lay members shall consist of a delegate or delegates chosen by the Vestry or Congregation" of a parish; and also that the "acting Clergy of the Cathedral" are not, by the terms of the Constitution, provided with a seat in the Convention. These officers are all "Peculiars." I shall not pause to address myself to the equities that entitle them to the "privileges" granted by Canon, but proceed at once to discuss the legal point made that these Canons are unconstitutional, so far as they confer the "privileges" of the Convention upon the officers named, and must, therefore, to that extent, fall to the ground. And as the discussion of the rights of the Chancellor of the Diocese, in this regard, involves the whole question of the rights of the Cathedral officers in the Convention, and as those rights rest on precisely the same basis, I pass at once to the examination of the question in reference to that functionary.
It will be observed that the Constitution requires that the "Lay members" of the Convention, only, "shall be chosen by the Vestry or Congregation" of the respective parishes. It will be observed, moreover, that the Canon quoted does not constitute the Chancellor of the Diocese a "member" of the Convention. It only provides that he "shall ex officio be entitled to a seat in the Convention, with all the privileges of Lay membership." If it be said that this is equivalent to membership, and therefore in violation of the spirit of the Constitutional provision, I answer no--this "seat" and these "privileges" are not equivalent to membership; for, under the Constitution, "members "cannot be deprived of their privileges in that relation except by a vote altering the Constitution to that effect at two consecutive Annual Conventions; whereas the Convention may at any time, by a majority vote, take away the "seat" and "privileges" of the Chancellor of the Diocese. Membership is guaranteed by the Constitution. The Chancellor's "privileges of membership" are granted only by Canon law, liable at any time to repeal.
That the granting (of these "privileges" is not and was not in violation of the Constitution is all the more manifest from the fact that the same "Committee on Revision of the Constitution and Canons" that reported the Constitution in its present form reported also our Canons as they now stand, including those under consideration; and from the farther fact that the same Convention that adopted this Constitution also at the same session adopted these Canons. Clearly the body that made the Constitution knew what they meant by its various provisions, and whether the Canons in question were in conflict with any of those provisions. The Constitution was adopted at the Annual Convention of 1871, as were the Canons also. The Canon in regard to the Cathedral and its officers, and also that concerning the Chancellor of the Diocese, were prepared and proposed by the distinguished Bishop then at the head of the Diocese and also at the head of the Committee on Revision. It so happened that the writer hereof discussed with Bishop WHITEHOUSE this very constitutional question, as to the "privileges of Lay membership" granted by the Canon to the Chancellor of the Diocese; and he did not hesitate in die most decided terms, and on more than one occasion, to express his deliberate opinion that the Canon was in no wise in conflict with the Constitution. The value of this opinion will be all the more appreciated when we recall the fact that an abler or more learned Canonist than that great prelate never lived on the American continent.
The enactment of the Canon referred to, giving these "privileges," by the same Convention that adopted the Constitution, and at the same session, furnishes a construction of the Constitutional provisions in question, indicating the intention of the makers of the Constitution as clearly as if the language of the Canon itself had been embodied in the Constitutional provisions. More than this, the Chancellor of the Diocese was elected at the same Annual Convention of 1871, and at once took his seat under the provisions of the Canon, and from thence hitherto has taken part and voted in every Convention since held, and that without challenge or question, until it suited the purposes of certain parties to raise the question at the late Special Convention. The Chancellor of the Cathedral voted for Bishop at the last September Convention, without question as to his right. The Chancellor of the Diocese, by reason of sickness, was unable to be present and vote at that election, but he did vote on two other occasions at that Convention, when present for a brief time; and he was called to vote, without objection, on every occasion when a vote by Orders was had. The acquiescence and practice of four Annual Conventions afford a construction and an interpretation of the membership provisions of the Constitution entirely foreign to the idea that the Canon in respect to the "privileges" of the Chancellor of the Diocese is at all in conflict with such membership provisions.
And, then, the action of our recent Special Convention, in the premises, furnishes another and conclusive construction and determination in the matter. A resolution was offered in that body to the effect that the Chancellor of the Diocese was not entitled to a vote in that Convention. After discussion on the merits of the question, a motion to lay this resolution on the table was carried by the following overwhelming vote, by Orders: Clergy--Ayes, 42; Noes, 18; Laity--Ayes, 32; Noes, 20. And it is hardly necessary to add that these figures do not embrace the vote of the Chancellor of the Diocese, the same not having been given, because he was personally interested in the question.
Here, again, I may invoke the 4th Article of the General Constitution, which declares, as we have before seen, that "the Bishop in every Diocese shall be chosen agreeably to such rules as shall be fixed by the Convention of that Diocese." It was competent for the Convention to "fix" any "rule" as to the votes for Bishop that to them seemed proper. They might have provided that the votes of the Clergy alone, or of the Laity alone, should elect; or that no clergyman or layman should vote who had not resided for five years in the Diocese; or that the Clergy and Chancellor of the Cathedral and the Chancellor of the Diocese should or should not be entitled to vote. The Convention having "fixed" upon "rules" that entitled those officers to vote, and having, moreover, expressly decided, on the express question, that the Chancellor of the Diocese had a right to his vote, an end is thereby put to all legitimate controversy in the matter.
But, apart from what precedes in illustrating the constitutionality of the Canon giving "all the privileges of Lay membership" to the Chancellor of the Diocese, I come now to a branch of the philosophy of that constitutionality that, in my judgment, must be conclusive to every candid mind. It is this: The Convention or Council of the Diocese is sovereign within the scope of its powers; and that it has authority to determine its own membership, and the qualifications and privileges of all its voters, no man will deny. Such Convention is not the creature of the Constitution, but the Constitution is the creature of the Convention. The Church existed in the Diocese before the Constitution, just as the Church universal existed before there was any Bible. The Church in the Diocese assembled in Convention and ordained a Constitution, whose provisions are merely regulative of certain Diocesan work; but the Church would live and go forward if the Constitution were given to the winds. The Convention of the Diocese is simply the Church in the Diocese, in its organic Diocesan relation. It may make and unmake Constitutions. It is, so to speak, a continuing Constitutional Convention. It delegates its powers to no subordinate legislative body, nor does it derive them from the Diocesan Constitution. In this latter respect it is wholly unlike the Legislature of a Stale, which is the creature of the State Constitution, and which can exercise no such enlarged powers as can a Constitutional Convention, but which a Diocesan Convention may do, at its pleasure, within its sphere. Now, having ascertained that the Diocesan Convention is on a par, as to the Church, with a Constitutional Convention in respect to the State, let us suppose that a Constitutional Convention, whose membership is defined by law, should ordain that the Attorney General of the State "shall be ex-officio entitled to a seat in the Convention, with all the privileges of membership." Is there a lawyer in all this broad land of ours, worthy to be called a lawyer, who, under such circumstances, would deny the right of the Attorney General to a seat and vote in such Constitutional Convention, or who would question the legality of his vote when cast therein? And if the Constitutional Convention of the State may lawfully do this in respect to the Attorney General, why may not the Constitutional Convention of the Church lawfully do the same in respect to the Chancellor of the Diocese? If it be answered that in the one case the membership of the Convention is fixed by ordinary Statute law, and in the other by Constitutional law I reply, first, 'that the rule would be the same in the case of the State Constitutional Convention, whether its membership is fixed by ordinary Statute law or in existing Constitutional provision whereby the method of amendment is recited, because such Constitutional Convention, when once put into motion, is a creative power--is a law unto itself; and I reply, secondly, that it is already shown that, at our Diocesan Constitution under discussion, the membership of the Convention named is not to the exclusion of other votes--that such exclusion was not so intended, and has not been so construed; and, thirdly, that the provision in such Diocesan Constitution for Lay membership, from the various parishes, amounts simply and only to a solemn assurance or guaranty that such membership shall not be disturbed unless by the voice of two successive Annual Conventions, and not as a bar against any other "privileges of membership." The Convention being sovereign--as much so in respect to the Church as a State Constitutional Convention is as to the State--in other words, being, so to speak, a continuing Constitutional Convention, it may lawfully grant such "privileges" to whatsoever functionaries of the Church it may please.
LEGALITY OF THE ELECTION CANNOT BE QUESTIONED.
3. From the foregoing considerations, it seems clear to my mind, that, in any and every possible view of the ease, the legal election of DR. DEKOVEN is demonstrated; that the two Chancellors had the lawful right to vote; that the divided parish could not be counted in the negative; and, hence, that whether the two Chancellors voted for DR. DEKOVEN or not, and whether their votes were legal or not, yet he received a clear majority of the Lay Order. There is no dispute about the Clerical vote; hence there is nothing open for discussion as to that.
But suppose the view herein taken, both as to the divided parish and in respect to the two Chancellors, is incorrect; what of it? The election of DR. DEKOVEN was duly declared, and his Testimonials are duly signed by 51 of the 67 clergy who attended the Convention, and by 43 of the 58 parishes represented, also by the Chancellor of the Cathedral and the Chancellor of the Diocese. Thus over three-fourths of Clergy and just three-fourths of the Laity of the Convention (including the two Chancellors) have signed the Testimonials. Now, this being true, it does not lie in the power of any man or set of men to question the legality of the election. For the Standing Committees or Bishops of other Dioceses to attempt this would be trenching upon the independence of the Diocese of Illinois; and if they should venture to decide that any irregularity in the election existed, such decision would involve the "fixing" of "rules," in respect to the election, by private or individual assumption, which Article 4 of the General Constitution expressly leaves to the Convention of the Diocese, and to that alone, to "fix." There is no provision for an appeal from the Diocesan Convention in the matter; and any meddling from without with the prerogatives of our Convention would be nothing short of usurpation. The different Standing Committees deal with the Testimonials, and they cannot lawfully go behind them, or make any inquiry whatever into the proceedings of our Convention.
As to what other powers the Standing Committees may or may not rightfully exercise with reference to a Bishop-elect, it was my privilege to discuss, at some length, in a paper adopted and reported by the Committee of Thirteen at the recent Convention; and to which paper I beg to refer your Committee for what, in my judgment, is a proper elucidation of the authority of the Standing Committees in this regard, as far as not herein considered. That document reviews all the prerogatives of the Standing Commitees in the case of a Bishop-elect, and illustrates the point, by considerations in addition to those of the present paper, that such bodies are authorized to concern themselves, in such a case, with the result, and not with the details, of the proceedings of a Diocesan Convention.
S. CORNING JUDD,
Chancellor of the Diocese.
To the REV'D GEO. F. CUSHMAN, D.D.,
President Standing Committee of the Diocese of Illinois.