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Rector of St. Stephen's Church, Philadelphia.



Philadelphia: McCalla & Stavely, 1875.



Your letter of the 12th inst., reached me a day or two ago. In this letter you inform me that "Among other arguments used," in the late Special Convention of the Diocese of Illinois, "to effect the election of Dr. De Koven was this--That his speech in the General Convention satisfied you."

In reply, I would simply say, that I was not satisfied with the statement concerning Eucharistic Doctrine made by Dr. De Koven in the late General Convention. It was not a statement which I could accept. But, as I then understood it--for I have not seen the stenographic report of the debates--it was a considerable modification of his views as expressed in the General Convention of 1871. This fact, or supposed fact, I was glad to recognize, and it gave me great pleasure publicly to call attention to it, and to express my own gratification concerning it.

In regard to the general subject-matter of your letter, permit me to make the following observations.

The position assumed by the majority, or alleged majority, of the Convention of the Diocese of Illinois in regard to the case of Dr. Seymour, and evidently [1/2] with the purpose of affecting, if possible, the case of Dr. De Koven, is, in my judgment, wholly untenable. Their interpretation of the Church's Law, and their denial, under that interpretation, of the right of the General Convention, and "during its recess," of the Standing Committees of the several Dioceses, to consider the personal qualifications of a Bishop-elect, and, should the result of such consideration be unsatisfactory, to refuse their consent to his Consecration, are, to say the least, new doctrines in the Church. Our most learned Canonists seem never to have heard of them.

It will not be necessary, in this discussion, to inquire what was the rule or practice of the Early Church in the election and confirmation of Bishops; to enter into the controversy touching the Kai oi in Acts xv. 23; or to determine the precise weight and authority allowed to the voice of the Laity in Episcopal elections. Without doubt, the final confirmation rested with the Provincial Synod composed of the Archbishop and the Bishops of his Province. But it seems equally certain that the power of the people in determining the choice of a Bishop was very great; so great indeed that it sometimes ran out into violence and open tumult. They had a "proper suffrage" in the election of the Bishop, and, whatever might be the power or authority of the Provincial Synod, no Bishop could be obtruded upon them without their consent. Scholars differ, it is true, concerning the precise extent and limitations of this authority, and as to the mode in which, in different times and places, it was exercised; but the broad fact seems to be well settled, "that"--as Bingham, with his usual judiciousness, has stated it--"there was no one [2/3] universal, unalterable rule observed in all times and places about this matter but the practice varied according to the different exigences and circumstances of the Church." Evidently then, the election or confirmation of a Bishop always the final decision to the Episcopal College of the Province --are not such matters of fundamental principle as to make the rules or Customs of the Early Church, whatever these may be determined to have been, binding upon all Churches in all ages. Rather they are to be reckoned among those things which it is entirely within the proper power of each particular Church to arrange and determine for itself.

Now there are two views which may be taken of the General Convention We may regard it as the highest Council of a National Church, or we may regard it as a Provincial Synod whole Church in the United States being looked upon as forming one Province. This last, if I mistake not, is the view taken by Mr Murray Hoffman. In either case, if the Church has allowed to the Laity a representation in this National Council or Provincial Synod, and, as a consequence, a voice in determining concerning the fitness or non-fitness for the Episcopate of a Bishop it has done only what, in its just liberty, it had a right to do, and has not been guilty of any breach of fundamental Ecclesiastical principle or Law. The Bishops have still the final determination in every case.

The question, therefore, for us, here, and to-day, is What is the Law of "The Protestant Episcopal Church in the United States," touching this matter?

I am unable to see how any person can read Canon 13, Sections II., III., without reaching the following conclusions:--

[4] FIRST. That there are two sources of authority whose assent to the consecration of a Bishop-elect are necessary to that end :--Ist, the General Convention, if it be in session; or, 2d, "during the recess of the General Convention," less the six months immediately preceding its triennial assembly, "the major number of the Standing Committees of the several Dioceses."

SECOND. That of these two sources of authority, the General Convention stands first in the legal intention, and legislative system of the Church; its action is, so to speak, the normal legislative action of the Church; and the authority of the Standing Committees, in this matter of consenting or refusing to consent, to the Consecration of a Bishop-elect, only comes into existence "if, during the recess, of the General Convention, the Church in any Diocese should be desirous of the Consecration of a Bishop-elect." The authority therefore of the Standing Committees in the premises is, in fact, the authority of the General Convention,--an authority committed to them "during the recess of the General Convention," less the six months prior to the triennial meeting of that body. And the powers of the Standing Committees in consenting, or refusing to consent, to the Consecration of a Bishop-elect, are consequently no less full and complete than those of the General Convention itself which, in this matter, they represent. [NOTE 1]

[5] But it is said of both the General Convention and the Standing Committees, that, under the Canons referred to above, they have no right to enter upon any consideration of the personal qualifications of a Bishop-elect. Their business is simply to testify that the testimonials of the Bishop elect, sent to them from the electing Diocese, are regular, and that, refusing to be informed, they are "not informed that he is justly liable to evil report, either for error in religion, or for viciousness of life;" and further, that "they do not know or believe" (meanwhile refusing all testimony on the points) "there is any impediment on account of which he ought not to be consecrated to that Holy Office; but that he hath, as they believe, led his life for three years, last past, piously, soberly, and honestly," The business, in one word, of the General Convention, or of the Standing Committees is, enacting a Solemn farce, simply to endorse the action of the electing Diocese, and to ratify and confirm its choice. it is on this ground that the action of the late General Convention in the case of Dr Seymour has been so bitterly assailed, and the Convention set forth for the condemnation of the Church.

The action of the General Convention is denounced as "Illegal" and "Unprecedented."

It is ILLEGAL.--If it is illegal, it is so under an interpretation [5/6] of the Law, which, as I have said, is certainly new in the Church. None of our Canonists, some of them men of wide reputation as such, seem ever to have heard of it. Judge Hoffman does not seem to be aware of this interpretation. Dr. Francis Vinton is manifestly ignorant of it. Dr. Hawks, one of the most eminent of our writers on Canon Law, speaking of the things which the Dioceses "surrendered" when they adopted the Constitution of the American Church, notes as one of these;--"The right of having the Bishop whom they might elect consecrated without the consent of the Church at large." Speaking of the Canon under consideration, in which are embodied the testimonials of the Bishop-elect to be signed by the Lower House of the General Convention, he remarks;--"It is obvious that this Canon is more precise in its phraseology as well as more strict in its demands than any of its predecessors; its interpretation, however, would seem to be free from difficulty. Up to that date of writing therefore, he--and so the same thing must be supposed of the other students of our Church Law--had never heard of those wonderful clouds of dust about "informed" and "impediments," with which some of our new school of ecclesiastical lawyers are, for the sake of a present issue, endeavouring to blind the eyes of those who know no better, or who are willing to be thus blinded. Commenting upon the testimonial laid before the House of Clerical and Lay Deputies, Dr. Hawks remarks:--

"This Certificate in the practice of the House, is always referred, with the documents on the fact of election, to the Committee on Consecrations. The object of the reference must be two-fold, to see, first, that the certificate is in the form of words prescribed; and secondly, that it is signed by a constitutional majority of the Convention making the election; and it will prevent confusion to bear in mind that this testimonial has no [6/7] reference to the fact of election, or to anything else, save the moral and religious qualifications of the Bishop-elect; it proves nothing else, and is not even conclusive on that point for if the House should, in any mode, become satisfied that the individual named in the testimonial is unworthy, it will not recommend him to the Bishops for consecration."--[Ecclesiastical Contributions, Constitution and Canons, p. 96.]

Further on, having mentioned the documents to be laid before the House of Bishops, he says:--

"Without these things he (the Bishop-elect) cannot lawfully be consecrated under this Canon; with them all, his consecration does not necessarily follow; it never has happened in our history, it probably never will happen, that one who is known to be unworthy will be permitted to pass all these ordeals, and come before the House of Bishops with all the Canonical requisites for consecration complete; but should such ever he the case, or should in any case subsequent discoveries bring to light disqualification unknown until every ordeal but the last was past, the House of Bishops would refuse to consecrate, and no power on earth could force them to act otherwise. It is a matter between God and their consciences, and there it must be left. Each House in the General Convention has its rights, and as the Bishops cannot consecrate any one against the assent of the House of Clerical and Lay Deputies; so neither can they be forced by the House to consecrate any one against their own assent. Thus careful has the Church been to subject every one who enters into the highest office of its ministry to a thrice repeated scrutiny; first, by the Convention which elects him; secondly, by the House of Clerical and Lay Deputies; and thirdly, by the House o Bishops. A bad man may, indeed, get in, notwithstanding all these guards, but the Church, in her legislation has at least done what she could to prevent it."--[Ib. pp. 97, 98.]

But the action of the late General Convention was not only "Illegal;" IT WAS "UNPRECEDENTED".... there were any doubt as to the plain meaning of the words of the canon, that meaning has been settled by the decision of cases under it, We all know the value and efficacy of precedents in determining the right interpretation of Laws. Now the House of Clerical and Lay Deputies has, on more than one occasion, refused, on consideration of the personal qualifications of a Bishop-elect, to give its assent to his consecration The [7/8] latest case, I believe, prior to that of Dr. Seymour, was the case of the Rev. J. B. Britton, Assistant Bishop-elect of the Diocese of Illinois, to whose consecration the General Convention of 1847 refused to give its consent. The House of Clerical and Lay Deputies thought that most excellent and highly-esteemed clergyman to be lacking in certain qualities which it deemed it important that a Bishop should possess, and accordingly it refused to sign his testimonials. A second precedent we have in the celebrated case of the Rev. Dr. Hawks, Bishop-elect of the Diocese of Mississippi, in the General Convention of 1844. There were no technical impediments in the way. Certain charges, based upon events and transactions which had occurred many years before, were preferred against Dr. Hawks, and he pleaded his own case. The Bishop-elect, as I need scarcely say, was a man of legal education and experience; had sat on the Bench in North Carolina; and was, besides, one of the most learned and able Canonists which the American Church has produced. Is it not strange that it never occurred to him to quash the whole proceedings, by simply denying the legal competency of the General Convention to consider the case, and refusing to plead to the charges? He was a Clergyman in good standing in the Diocese of Mississippi; elected, I believe, unanimously by the Diocese of Mississippi to be its Bishop, which Diocese he also represented in. the Convention; with no question as to the strict legality of his election, or as to the regularity of the necessary testimonials; and yet the House of Clerical and Lay Deputies proceeds to "try" him; [NOTE 2] [8/9] goes back of the action of the Diocese of Mississippi, and having gone into a thorough discussion of the charges against him, and not being fully satisfied of his entire fitness for the Episcopate, virtually refused to give its assent to his consecration. [NOTE 3] On the other [9/10] hand, Dr. Hawks unhesitatingly admits the legal right of the General Convention to do all this; never, indeed, seems to have dreamed of calling it in question; and when the decision is against him, both he and the Diocese of Mississippi quietly and loyally accept the result [NOTE 4]

It is possible that, under the new quibble upon the word "informed" in the testimonials required from the House of Clerical and Lay Deputies, it may be objected that the General Convention of 1844 was "informed" in the matter of Dr. Hawks, because formal charges were made against him by a clergyman of the Diocese of New York. Had there been no [10/11] formal charges made, it would not have been within the competency of the House to discuss his personal qualifications in the presence of the regular testimonials from the Diocese of Mississippi. But the word "informed" occurs also in the testimony from the Diocesan Convention, and there seems to be no question, judging from the practice in certain quarters, that that Convention can discuss to any extent, the qualifications of the person or persons nominated fonts choice. Besides, the question may we be asked,--Would the General Convention of 1844 have been less "informed" if the clergyman making the charges had been a member of that body, and had risen in his place, and viva voce urged his objections to the consecration of Dr. Hawks. On the other hand, would that clergyman have been justified in conscience if, having knowledge [11/12] of the charges, which, however wrongly, he believed to be true, he had sat still and been silent, because his legal function as a member of the Convention was simply to ratify the choice of the Diocese of Mississippi, and not to discuss the personal. qualifications of the Bishop-elect? Or, again, would the General Convention itself have been justified before God and man if it had refused to listen to, or consider those charges, because the mode of presenting them did not fall within some arbitrary and technical interpretation of the word "informed?" But in 1844 they were ignorant of all these nice points.

But it may be said that the charges against Dr. Hawks were not known, and perhaps could not have been known, by the Diocese electing him as its Bishop. They came for the first time, and, it may [12/13] be, could only thus come before the House of Clerical and Lay Deputies; and therefore that House was justified, in the way of a necessary exception, in considering and acting upon them. The reply to this seems to me to be very evident. In the first place, this position rests upon an assumption that cannot be proved. In the second place, our rigid interpreters of the Canon must remember that the Canon makes no allowance for any exceptions whatever. If it plainly and positively, as is alleged, denies to the Lower House of the General Convention the right to consider the personal qualifications of a Bishop-elect in one case, it does so in all cases. And, lastly, this mode of interpretating and applying Laws would throw endless confusion into all legal proceedings. I think I am right in saying, that it is allowed to no court of any kind what ever, to determine for itself cases of exception in the application of written Laws.

But it is said again, I believe, that moral [13/14] disqualifications stand on a different ground from those which arise from error in doctrine. The General Convention may be justified in looking into the former; it has no right to consider the latter. It seems strange that this point should be raised by members of a school of Theology which insists, and rightly, with such emphasis, upon the vital importance of sound doctrine. The answer, however, is--That the Canon knows no such difference. The House of Clerical and Lay Deputies is to testify,--that "A. B. is not, so far as we are informed, justly liable to evil report either for error in religion, or for viciousness of life."

But it is urged again, that the consideration and discussion of the qualifications of a Bishop-elect by the Lower House of the General Convention puts, in fact, a Clergyman upon trial" before a court composed partly of Laymen, while yet it is the common and recognized right of every man to be tried only by his peers. Of course, we can call this action of the General Convention, or of the Standing Committees, a "trial," or give to it any other offensive or ad captandum vulgus name that we please. But, after all, what does it really amount to? When the qualifications of the nominees in a Diocesan election for Bishop are discussed--and surely, these nominees are sometimes very thoroughly discussed, body, soul and spirit?--._are not these inoffensive and helpless gentlemen brought to "trial" in the same sense, and in the same way, before a court composed partly of Laymen, no more and no less? Are not the nominees for vacant Parishes "tried" in the same sense, and in the same way? And how are we going to avoid such a "trial," unless, as is asserted by our new Canonists, the Church at [14/15] large has no right to ask any questions concerning the qualifications of men who, in the case of Bishops-elect are to affect her welfare, and influence her destiny, no less than the welfare and destiny of the particular Dioceses over which they are called to preside?

The truth is, that just here there is a singular forget fulness of a very important fact and principle. A Bishop has Jurisdiction in a particular Diocese, but he is a Bishop of the whole Church; and it is therefore a matter of the very highest interest and importance to the whole Church to be thoroughly well certified before hand, as to the character and quality of the man; to be admitted to this high and most influential office. The whole Church has a right to be so satisfied. It seems strange that it should be necessary to remind "Catholics "of those celebrated dicta of St. Cyprian:--

"Nam etsi pastores multi sumus, unum tamen gregem pascimus, et oves universas, quas Christus sanguine suo et passione quaesivit, colligere et fovere debemus."--[Cyprian, Ep. 68, ad Steph.] In Bingham's translation;--"For though we are many pastors, yet we have but one flock to feed, and every one is obliged to take care of all the sheep of Christ, which He purchased with His blood;" and again;--"Episcopatus unus est, cujus a singulis in solidum pars tenetur,"--"There is but one Bishopric in the Church, and every Bishop has an undivided portion in it."

It is a great mistake to suppose that a Diocese electing a Bishop is the only party concerned in the matter. A single illustration may suffice to show how deeply the interests of the whole Church are, or may be, involved. It is perhaps not probable, but no reader of Ecclesiastical history will say that it is impossible, that [15/16] a Diocese may elect, and elect with strict legality in every respect, an Arian to be its Bishop. Will the gentlemen who are so anxious to close the mouths of the General Convention and the Standing Committees, contend that, in such a case, those bodies would have no legal right to refuse consent to the Consecration of such a Bishop-elect, but that they would be bound by the Law of the Church simply to acquiesce in, and confirm such a choice? Yet to this result they are committed by the position which they have chosen to occupy.

There are several other points to which I might call your attention, but these will, I think, suffice to show, how wholly untenable is the ground taken by the majority, or alleged majority, of the late Convention of the Diocese of Illinois.

Yours respectfully,


PHILADELPHIA, Feb. 15, 1875.


[1] The Second Canon of 1799--the first legislation of the Church on this subject--required the production of testimonials from the Convention electing, and also "from the General Convention, or a Committee of body, to be appointed to act in their recess." The Canon of 1808, required the latter testimonial to be "from the House of Clerical and Lay Deputies in General Convention;" to which also the testimonial from the Diocesan Convention is directed to be sent. "The cause of this difference," says Dr. Hawks, "is to be found in the fact, that Canons were now in existence establishing Standing Committees in the several Dioceses, and requiring, during the recess of the General Convention, testimonials from them in favor of a Bishop elect; hence it was no longer necessary to continue a Committee of the General Convention, for the purpose of granting such testimonials." Constitution and Canons, p. 90. The Standing Committees therefore fill, in fact, the place of the former "Committee of the General Convention."

[2] Our new Canonists had one predecessor in this General Convention in the person of the Rev. F. W. Boyd, a delegate from Mississippi, who "did not suppose that the House was a competent body to try a Presbyter or Minister of the church." Of course, there were plenty of members, clergymen and Laymen, to remind Mr. Boyd that the investigation was no "trial" in the legal or technical meaning of the word, but only such an investigation, although upon a larger and more conspicuous stage, as every man at all in public life, whether clergyman or Layman, has to submit to again and again. Mr. Boyd, however, seems to have been quite alone in this position. His words called forth no response, and produced no effect.

[3] The following was the disposal made of the case of Rev. Dr. Hawks. Two resolutions were passed.

First. On motion it was

"Resolved, That in the opinion of this House, the integrity of Rev. Dr. Hawks has been sufficiently proved by his reply to the charges brought against him in the memorials presented to this House,"

Second. On motion it was

"Resolved, That in the opinion of this House, all proceedings respecting the Consecration of the Rev. Francis L. Hawks, D.D., ought to be suspended until a future Convention of the State of Mississippi shall declare their sense of the subject. And that all the documents relating thereto be sent back to the Diocese of Mississippi for their consideration."

It may be said that this action militates against the position assumed above. A moment's thought, however, will, I think, show that it does not. In the first place, the House of clerical and Lay Deputies entered upon a full consideration of the charges made against Dr. Hawks, discussing the whole question on its merits. There is no slightest indication that the Convention of 1844 thought that, in so doing, it was infringing upon the rights or prerogatives of the Diocese of Mississippi or doing anything outside of its own legal and proper functions, If the House had no legal right to pursue the course that it did, its action was a mere waste of time, and, to say the least, an impertinence. But, evidently, no such idea entered the minds of its members. They unquestionably thought that they had a light to act in the premises, and they acted accordingly.

Again, in referring back the whole matter; with the documents, to the Diocese of Mississippi, the House in no way concedes that that Diocese had a right to expect this, much less to demand it, or that it had not itself the right then and there finally to dispose of the case. The simple fact, as appears plainly from the debates, was, that it was considered, on all sides, the best way to gain time, in a difficult case, for all parties to reach a calm and judicious decision.

Judge Chambers, of Maryland, in his argument in favour of this course, referred to the case of Rev. Mr. Ogden, in the General Convention of 1799, as a justifying precedent. What was this precedent? The General Convention of 1799 sent back the case of Rev. Mr. Ogden to the Convention of the Diocese of New Jersey, of which he was a Presbyter, on the ground of an alleged insufficient number of Presbyters in the Diocese making the election. But, says Bishop White, "There was a more important reason at the bottom of the objection made. The truth is, that the gentleman elected was considered by his brethren generally, as being more attached to the doctrines and the practices obtaining in some other Churches, than to those of his own."--Memoirs, p. 178.

The subsequent action of the General Convention of 1801, proves that there was no idea, in sending back the case of Mr. Ogden to the Diocese of New Jersey, that the General Convention had not the full right finally to dispose of it. That Convention did so dispose of it. The precedent referred to by Judge Chambers thus explains the action of the Convention of 1844. See following Note.

[4] It will not be necessary to consider at any length, the case of the Rev. Dr. Uzal Ogden, Bishop-elect of the Diocese of New Jersey, in the General Conventions of 1799 and 1801. The record in the Journal of the latter Convention runs as follows:--

"The proceedings of the State Convention o Protestant Episcopal Church in New Jersey, respecting the election of Dr. Ogden, as Bishop of that State, were accordingly read and fully considered; and the question upon signing the requisite testimonial being taken by States, it was negatived."

Speaking of the General Convention of 1799, Bishop White remarks;

"In the Convention, considerable animosity was excited in the House of Clerical and Lay Deputies, on the subject of the election of a reverend gentleman to the Episcopacy of New Jersey. Agreeably to the distinction taken by the author, of recording personal matters, then only when necessary to illustrate Ecclesiastical effects, and when something appears on the Journal which may be thus elucidated; it may be proper to note in this place, that whatever ground was taken by the said House in the strict construction of the Canon, fixing the number of Clerical incumbents in a State in which a Bishop might be chosen there was a more important reason at the bottom of the objection made. The truth is, that the gentleman elected was considered by his brethren generally, as being more attached to the doctrines and the practices obtaining in some other Churches, than to those of his own. What rendered the management of the case the more difficult, was his being brought forward by some gentlemen who had always professed the strongest disapprobation of the least deviation from the institutions of the Church." Memoirs, p. 178.

In his note on the General Convention of 1801, Bishop White further observes: "In this Convention, the question of recommending to the Episcopacy the Clergyman elected to it, as related under the head of the last preceding Convention, came to a crisis. The Church of New Jersey persevered in the election of him; and there was now no longer reason to hesitate, for want of a sufficient number of incumbents: because the question of fact had been referred by the last General Convention, to the Convention of the particular State which had decided in the affirmative. These things were reported to the House of Clerical and Lay Deputies; and the result was a direct refusal to recommend. The incident, although given in the Journal, should not be noticed in these remarks, were it not to record, that the extreme dissatisfaction conceived by a few gentlemen, was prevented from ending in the inconveniences of which there was entertained an apprehension, by some controversies of a parochial description. Until these took place, the few gentlemen referred to had adopted so zealously the cause of the rejected Clergyman, that they contemplated an application to the Episcopal Church in Scotland. This would certainly have failed: but the project was communicated by one of the gentlemen to the author. The Bishop-elect, a few years afterwards joined the Presbyterian Church, probably in consequence of the parochial controversies referred to; which had also arrested the proceedings in his favor in regard to the Episcopacy" Memoirs, p. 187.

So do historical instances repeat themselves. Here is a case in 1799-1841, wherein a Diocese, defying the authority of the General Convention, endeavours to force upon the Church, by a second election, a Bishop of erroneous doctrinal views, and in order to carry its point, threatens independency and the inauguration of a schism. In 1875, seventy-five years after, almost the same spectacle is presented to our eyes.

It may be well to remember two things in connection with the above quotations --First, the fact that Bishop White was one of the founders of the American Church, and took part in the Conventions which gradually framed the Canon under consideration; it is therefore reasonable to suppose that he knew the meaning and intention of it:--and Second, The Maxim of the Common Law--"Contemporanea expositio est optima et fortissima in lege."

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